NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

AURORA M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, B.M., Appellees.

1

No. 1 CA-JV 14-0264

Appeal from the Superior Court in Maricopa County

No. JD22302

The Honorable Connie Contes, Judge

AFFIRMED

COUNSEL

Jeffrey M. Zurbriggen, Phoenix

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Michael F. Valenzuela

Counsel for Appellee

 

1 The caption has been amended to safeguard the juvenile’s identity 

pursuant to Administrative Order 2013-0001. 
AURORA M. v. DCS, B.M.

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined.

T H U M M A, Judge:

¶1 Aurora M. (Grandmother) appeals from the superior court’s 

order denying her motion for change of physical custody for her grandson,

B.M. Finding no error, that order is affirmed. 

FACTS2 AND PROCEDURAL HISTORY

¶2 Grandmother is the biological maternal grandmother of B.M., 

who was born approximately seven weeks premature in May 2012. B.M. 

was born with intrauterine drug exposure to methamphetamines and 

marijuana and had significant medical complications, including a 

diaphragmatic hernia that required surgery. For nearly three months after 

his birth, B.M. was in the hospital’s neonatal intensive care unit. B.M.

remains medically fragile and suffers from underdeveloped lungs, an 

abnormal gastrointestinal tract, significant swallowing and feeding 

difficulties, cerebral palsy and related medical issues. 

¶3 The Department of Child Safety (DCS) took physical custody 

of B.M. upon his release from the hospital and filed a dependency petition 

on August 1, 2012. At that time, DCS considered Grandmother as a 

placement but identified safety issues because B.M.’s mother still lived in 

the home and DCS had previously investigated Grandmother when she 

was parenting B.M.’s mother. DCS also had concerns that Grandmother did 

not know how to meet B.M.’s significant needs. B.M. was placed with, and 

has remained with, foster parents who have experience caring for medically 

fragile children and who are potential adoptive parents. In September 2012, 

the superior court appointed a Court Appointed Special Advocate (CASA). 

 

2 This court views the evidence in a light most favorable to sustaining the 

superior court’s findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 

205, 207 ¶ 2, 181 P.3d 1126, 1128 (App. 2008).
AURORA M. v. DCS, B.M.

Decision of the Court

3

See Ariz. Rev. Stat. (A.R.S.) § 8-523 (2015);3 see also Ariz. Code Jud. Admin.

§ 7-101. 

¶4 By March 2013, B.M. was found dependent as to both parents

and the court adopted a case plan of family reunification with a concurrent 

case plan of severance and adoption. In June 2013, at DCS’ request, the court 

changed the case plan to severance and adoption. At about that same time, 

Grandmother moved to intervene and to change physical custody (CPC), 

asking that B.M. be placed in her physical custody. The court granted the 

motion to intervene “for the limited purpose of” allowing Grandmother to 

pursue the CPC motion. After the change in case plan, Grandmother made 

commendable efforts to meet DCS’ requirements in order to be considered 

as a placement for B.M. Grandmother also regularly attended B.M.’s 

medical appointments and Grandmother no longer allowed B.M.’s mother 

in her home. 

¶5 The superior court received evidence on the CPC motion on 

two days in February 2014, one day in March 2014 and one day in June 

2014.

4 The court closed the proceeding to the public, but denied 

Grandmother’s request to exclude the CASA. See Ariz. R.P. Juv. Ct. 41(E); 

see also id. 37(B) (“Participants”). The court then heard testimony from 

various witnesses, including B.M’s doctors, Grandmother and the DCS 

caseworker, received evidence and heard argument on the CPC motion. 

When DCS sought to admit into evidence the CASA’s reports (which 

recommended that B.M. “remain in his current placement” and that the 

CPC motion “be denied”), Grandmother objected, arguing the CASA had 

not testified and was not a party. The superior court sustained

Grandmother’s objection, but directed the CASA’s reports be filed to make 

clear they were part of the record. 

 

3 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.

4 The parental rights of mother and father were terminated before the 

evidentiary hearing on the CPC motion began and are not at issue in this 

appeal. 
AURORA M. v. DCS, B.M.

Decision of the Court

4

¶6 After taking the matter under advisement, the superior court 

denied the CPC motion in September 2014. After discussing B.M.’s medical 

needs and the procedural history, the court’s minute entry noted a filing by 

the guardian ad litem generally agreeing with the CPC motion. The court 

also noted the “CASA filed her position statement with the Court. [DCS] 

has consistently opposed changing the child’s physical custody as being 

contrary to the needs and best interests of the child.” Mentioning the 

testimony and evidence presented, the court found “the factual and legal 

analysis supports the child remaining placed in his current placement with 

the foster family where he has lived since his discharge from the hospital 

and which is the only home he has known.” The court then found 

Grandmother had not shown that changing B.M.’s custody was “without 

undue risk or in the child’s best interests.” The court added that the 

“touchstone” is B.M.’s best interests, “and the list and order of possible 

placements in ARS § 8-514 reflects a preference rather than a mandate.”

“Under the totality of the circumstances, especially in view of the child’s 

chronic medical needs as well as his emotional and psychological wellbeing,” the court found B.M. “should remain in his current placement.”

¶7 Grandmother timely appealed and this court has jurisdiction 

under A.R.S. §§ 8-235, 12-120.21(A)(1) and -2101(A)(1) and the Arizona 

Rules of Procedure for the Juvenile Court 103–04. 

DISCUSSION

¶8 Grandmother argues the superior court erred by: (1) 

improperly considering the CASA’s reports; (2) placing the burden of proof 

on Grandmother and (3) making findings unsupported by the record. This 

court reviews matters of legal interpretation de novo, Mary Lou C. v. Ariz. 

Dep’t of Econ. Sec., 207 Ariz. 43, 47, 83 P.3d 43, 47 (App. 2004), while 

placement orders for dependent children are reviewed for an abuse of 

discretion, Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404 ¶ 8, 187 

P.3d 1115, 1117 (App. 2008).
AURORA M. v. DCS, B.M.

Decision of the Court

5

I. The Superior Court Did Not Improperly Consider The CASA’s 

Reports.

¶9 Grandmother argues the superior court violated her due 

process rights, her right to cross-examine witnesses “and several 

evidentiary requirements” when the court’s decision “relied on” the 

CASA’s reports, which were filed but had not been admitted in evidence. 

Grandmother did not raise this issue with the superior court but argues on 

appeal this purported reliance “was clear legal error” and “was clearly 

fundamentally prejudicial.” 

¶10 Among other things, by statute, a CASA “shall . . . [a]dvocate 

for the child’s safety as the first priority” and “[g]ather and provide 

independent, factual information to aid the court in making its decision 

regarding what is in the child’s best interest.” A.R.S. §§ 8-522(E)(2), (3). The 

CASA’s reports challenged here do just that. 

¶11 Grandmother speculates that the superior court considered 

the substance of the CASA’s reports because it noted, in the order denying 

the CPC motion, that the “CASA filed her position statement with the 

Court.” The CASA’s reports were filed without objection and there is no 

claim the CASA could not properly have filed such reports. Moreover, there 

is no indication that the superior court relied on the substance of those 

reports in denying the CPC motion, as opposed to reciting that the reports 

had been filed. In addition, Grandmother had known for months that the 

CASA opposed the CPC motion. A CASA report filed in November 2013 

(months after the filing of the CPC motion but months before the 

evidentiary hearing on that motion), noted concerns about Grandmother’s 

desire to have B.M. placed with her and recommended that B.M. “remain 

in his current placement.” That report was considered by the court without 

objection at a November 2013 report and review hearing where 

Grandmother was present. 

¶12 Grandmother speculates that the superior court considered 

the substance of the CASA’s reports because it denied the CPC motion after 

asking her to submit proposed findings of fact. The record does not support 

an inference that, absent the CASA’s reports, the court would have granted 

the CPC motion. At the end of the evidentiary hearing, the court asked 

“who wants [the] findings of fact on this one? [DCS] really doesn’t care 

because [DCS] wants me to deny the motion.” The superior court concluded 

that “I think it’s your [Grandmother’s] motion, I think you should submit 

findings – proposed findings of fact . . . to support a granting of the motion.” 

This directive does not, somehow, suggest the court would have granted 
AURORA M. v. DCS, B.M.

Decision of the Court

6

the CPC motion if it had not considered the substance of the CASA’s 

reports. 

¶13 Grandmother has not shown the superior court relied upon 

the substance of the CASA’s reports in denying the CPC motion. 

Accordingly, Grandmother has shown no error, let alone error that was 

fundamental and prejudicial.

II. The Superior Court Did Not Err By Placing The Burden Of Proof 

On Grandmother. 

¶14 Grandmother argues that the superior court erred when it 

required her “to not only bear the burden of proof but also to provide an 

affirmative best interests finding, when in fact the statutes [A.R.S. §§ 8-514

and -845] require a presumption of placement with a grandmother and 

require the State to prove a contrary best interests finding.” Although A.R.S. 

§ 8-514 establishes an “order for placement preference,” it requires DCS to 

“place a child in the least restrictive type of placement available, consistent 

with the needs of the child.” A.R.S. § 8-514. Similarly, A.R.S. § 8-845 

provides that, at a disposition hearing, the court has various placement 

alternatives, including a grandparent “unless the court has determined that 

such placement is not in the child’s best interests.” A.R.S. § 8-845(A)(2). As 

noted by DCS, under these statues, “the order of placement . . . is a 

preference, not a mandate.” Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 

402, 405 ¶ 12, 187 P.3d 1115, 1118 (App. 2008).

¶15 “[C]onsideration of the child’s best interests permeates 

dependency and severance proceedings.” Dep’t of Child Safety v. Beene, 235 

Ariz. 300, 304 ¶ 9, 332 P.3d 47, 51 (App. 2014) (citations omitted); Antonio 

P., 218 Ariz. at 404 ¶ 8, 187 P.3d at 1117. The statutory placement 

preferences relied upon by Grandmother “do not mandate placing a child 

with a person with an acceptable higher preference if the juvenile court 

finds it in the child’s best interests to be placed with someone with a lower 

preference.” Antonio P., 218 Ariz. at 403 ¶ 1, 187 P.3d at 1116. When ruling 

on a CPC motion, as in every decision in a dependency, the touchstone is 

the best interests of the child. See Alexander M. v. Abrams, 235 Ariz. 104, 107 

¶ 15, 328 P.3d 1045, 1048 (2014). The superior court “‘is in the best position 

to weigh the evidence, observe the parties, judge the credibility of 

witnesses, and resolve disputed facts.’” Jordan C. v. Ariz. Dep’t of Econ. Sec., 

223 Ariz. 86, 93 ¶ 18, 219 P.3d 296, 303 (App. 2009) (citation omitted). A 

superior court’s factual findings will be affirmed unless they are clearly 

erroneous or not supported by the record. See Audra T. v. Ariz. Dep’t of Econ. 

Sec., 194 Ariz. 376, 377, 982 P.2d 1290, 1291 (App. 1998). This court views 
AURORA M. v. DCS, B.M.

Decision of the Court

7

the evidence in a light most favorable to sustaining the superior court’s 

findings. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 207 ¶ 2, 181 

P.3d 1126, 1128 (App. 2008).

¶16 As applied, the superior court’s decision expressly 

“prioritizes the needs and best interests of the child and avoids undue risk 

to the protection and safety and stability of the child.” The court noted B.M. 

“has chronic medical conditions that continue to necessitate that he be 

closely monitored.” This finding is supported by reasonable evidence in the 

record, including testimony from the doctors and the DCS caseworker. 

Although Grandmother has made commendable efforts in learning about 

B.M’s medical issues, and loves B.M., there is reasonable evidence in the

record to support the finding that B.M. should remain “in his current 

placement with the foster family where he has lived since his discharge 

from the hospital and which is the only home he has known.” 

¶17 Nor has Grandmother shown the court incorrectly allocated 

the burden of proof. Grandmother agreed at the beginning of the hearing 

that, as the movant, she carried the burden of proof on the CPC motion. 

And as noted above, that burden included a showing that granting the CPC 

motion was in the best interests of B.M. See Alexander M., 235 Ariz. at 107 ¶ 

15, 328 P.3d at 1048. Accordingly, Grandmother has not shown the superior 

court erred in allocating the burden of proof. 

III. The Superior Court Did Not Make Findings Unsupported By The 

Record. 

¶18 Grandmother argues the superior court’s finding that B.M. 

suffered from “lung, digestive and feeding issues” was unsupported by the 

record and that the court “inappropriately” noted that familial “impact can 

be realized without the necessity of having to change placement of the child 

to the grandmother’s home.” This court views the evidence in the light most 

favorable to upholding the superior court’s order and will affirm unless 

there is no reasonable evidence to support it. See Michael J. v. Ariz. Dep’t. of 

Econ. Sec., 196 Ariz. 246, 250 ¶ 20, 995 P.2d 682, 686 (2000).

¶19 Several doctors testified as to B.M.’s medical issues, as did 

Grandmother herself. Witnesses also testified as to the interactions between 

Grandmother and B.M. despite the fact that B.M. was placed with foster 

parents. Grandmother essentially argues the evidence received should have 

been weighed differently, something this court will not do. See Jesus M. v. 

Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282 ¶ 12, 53 P.3d 203, 207 (App. 2002) 

(citing cases). Similarly, Grandmother has not shown how the following 
AURORA M. v. DCS, B.M.

Decision of the Court

8

observation was not supported by the record: “The Court is cognizant of 

the positive impact upon the child to have a familial connection and 

relationship. However, that impact can be realized without the necessity of 

having to change placement of the child to the grandmother's home.” The 

record supports the superior court crediting Grandmother’s love for B.M. 

and her desire to care for B.M. However, the evidence also justifies the 

emphasis on B.M.’s fragile medical condition and the denial of the CPC 

motion. Accordingly, the superior court did not make findings 

unsupported by the record. 

CONCLUSION

¶20 Because the superior court did not err, the order denying 

Grandmother’s motion for a change in physical custody is affirmed.