IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

KIMBERLY D.-D.,

Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC

SECURITY, K.D., K.D., AND K.D.,

Appellees.

No. 2 CA-JV 2013-0064

Filed October 2, 2013

Appeal from the Superior Court in Pima County

No. J202043

The Honorable Geoffrey Ferlan, Judge Pro Tempore

AFFIRMED

COUNSEL

Peter G. Schmerl, P.C., Tucson

By Peter G. Schmerl

Counsel for Appellant

Thomas C. Horne, Arizona Attorney General, Phoenix

By Cathleen E. Fuller, Assistant Attorney General, Tucson

Counsel for Appellee Arizona Department of Economic Security

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in 

which Chief Judge Howard and Judge Miller concurred.
KIMBERLY D. v. ADES

Opinion of the Court

2

V Á S Q U E Z, Presiding Judge:

¶1 Kimberly D.-D. appeals from the juvenile court’s order 

finding her three children dependent as to her. She argues on 

appeal that the court erred in denying her motion to dismiss based 

on the time limits in A.R.S. § 8-842(C) when the dependency 

adjudication hearing was not completed until 142 days after service 

of the dependency petition. We affirm.

¶2 Section 8-842(C) provides that a dependency 

adjudication hearing “shall be completed within ninety days after 

service of the dependency petition.” A juvenile court may extend 

that time limit “for up to thirty days if the court finds good cause or 

in extraordinary cases as prescribed by the supreme court by rule.” 

Id. Rule 55(B), Ariz. R. P. Juv. Ct., states that a court may extend the 

time “only upon a finding of extraordinary circumstances,” which 

include but are not limited to “acts or omissions that are unforeseen 

or unavoidable.”

¶3 The Arizona Department of Economic Security (ADES) 

filed a dependency petition alleging Kimberly’s three children were 

dependent as to her based on her failure to protect her youngest 

daughter from abuse. At a preliminary protective hearing on 

November 19, 2012, the juvenile court found Kimberly had accepted 

service of the petition. The first day of the contested dependency 

hearing was held on February 4, 2013. After an off-the-record 

discussion, the court stated it would continue the hearing to March 

25, March 28, and April 5. Recognizing that the ninety-day time 

limit of § 8-842(C) expired on February 19, 2013, the court stated it 

would “need to make extraordinary circumstances findings” before 

setting those dates. ADES’s attorney, Randi Alexander, informed 

the court she was scheduled to have surgery February 7 and would 

be on medical leave for six weeks. Kimberly objected, arguing that 

the Attorney General’s office could assign another attorney to the 

case despite the office being “understaffed.” The court found 

extraordinary circumstances existed, noting that the proceeding had 

already begun and that Alexander could not “attend to her medical 

needs as well as provide sufficient guidance [to replacement 
KIMBERLY D. v. ADES

Opinion of the Court

3

counsel] so that this matter could be appropriately adjudicated 

under the circumstances.”

¶4 On March 25, another attorney from the Attorney 

General’s office, Helena Seymour, appeared on behalf of ADES. 

Kimberly argued that, because Seymour was able to appear, the 

court should “reconsider” its finding of extraordinary circumstances 

and dismiss the dependency petition, further noting the proceeding 

was past the 120-day maximum time limit. ADES countered that the 

Attorney General’s office did not foresee Alexander’s need for 

additional medical leave, and stated the office “was down [to]

approximately one third of its staff” and Seymour had only been 

available because “the courtroom that I am routinely assigned to is 

on leave and so my calendar was freed to cover this week.” The 

juvenile court denied Kimberly’s motion to dismiss, restating its 

finding of extraordinary circumstances and concluding “the children 

would be placed at substantial risk of harm if returned to [Kimberly] 

at this time.”1 After additional days for the hearing on April 5 and 

10—the final day of the hearing occurring 142 days after Kimberly 

had accepted service of the dependency petition—the court found 

the children dependent as to Kimberly and signed a final ruling on 

May 29, 2013.

¶5 On appeal, Kimberly contends only that the juvenile 

court erred in denying her motion to dismiss. She first argues the 

court erred in finding extraordinary circumstances existed. We 

review the court’s decision to grant a continuance for an abuse of 

discretion, and any related findings of fact for clear error. See In re 

Yavapai Cnty. Juv. Action No. J-9365, 157 Ariz. 497, 499, 759 P.2d 643, 

645 (App. 1988) (“Motions to continue are addressed to the sound 

discretion of the trial court and its decision will not be reversed 

absent a clear abuse of discretion.”); cf. Ariz. Dep’t of Econ. Sec. v. 

Oscar O., 209 Ariz. 332, ¶ 4, 100 P.3d 943, 945 (App. 2004) (reviewing 

court does not reweigh evidence but defers to juvenile court’s 

factual findings); Beal v. State Farm Mut. Auto. Ins. Co., 151 Ariz. 514, 

519, 729 P.2d 318, 323 (App. 1986) (determination of extraordinary 

circumstances reviewed for abuse of discretion). Kimberly reasons 

 

1The juvenile court denied the motion without prejudice, 

granting Kimberly leave to file a written motion. She did not do so.
KIMBERLY D. v. ADES

Opinion of the Court

4

that, if the Attorney General’s office was able to find an attorney on 

short notice in March, it must have been able to find one in February 

and thus it was unnecessary to delay the hearing date past the 

deadline. But attorney illness can constitute extraordinary 

circumstances, even when the delays concern the statute of

limitations or a motion to set aside a judgment. See McCloud v. State, 

217 Ariz. 82, ¶¶ 14-16, 170 P.3d 691, 697 (App. 2007); McKernan v. 

Dupont, 192 Ariz. 550, ¶ 23, 968 P.2d 623, 629 (App. 1998), disapproved 

on other grounds by Panzino v. City of Phoenix, 196 Ariz. 442, n.3, 999 

P.2d 198, 201 n.3 (2000). It necessarily follows that attorney illness 

can justify delays in a dependency adjudication hearing.

¶6 Moreover, Kimberly has cited no authority suggesting 

the Attorney General’s office attorney shortage could not further 

justify the brief delay here. Cf. Davis v. Puckett, 857 F.2d 1035, 1040-

41 (5th Cir. 1988) (no denial of constitutional speedy trial rights 

when delay caused in part by “shortage of prosecutorial staff”);

United States v. Heard, 443 F.2d 856, 858 (6th Cir. 1971) (delay in 

criminal prosecution caused by attorney shortage does not violate 

constitutional speedy trial right absent prejudice). Nor has she 

identified anything in the record contradicting the court’s conclusion 

that Alexander’s extended absence was unforeseen. Additionally, 

Seymour informed the court that it was only by fortunate 

happenstance that she had been available to appear in Alexander’s 

absence. Thus, her presence at the hearing on March 25 does not 

suggest the court erred in concluding extraordinary circumstances 

existed.

¶7 Kimberly next argues the juvenile court lacked 

authority to extend the hearing beyond the 120-day statutory limit. 

In Joshua J. v. Arizona Department of Economic Security, this court 

determined that our legislature’s use of the word “shall” in § 8-

842(C) was directory and not mandatory, and that a violation of the 

initial, ninety-day limit does not require automatic dismissal and 

“does not automatically render void all further proceedings.” 230 

Ariz. 417, ¶¶ 18-20, 286 P.3d 166, 171-72 (App. 2012). Drawing an 

analogy to the speedy trial requirement for criminal trials, we 

determined a parent must demonstrate prejudice resulting from a 

violation of the deadlines in § 8-842(C) and Rule 55(B). Id. ¶¶ 22-24. 

On appeal, Kimberly does not assert any resulting prejudice existed 
KIMBERLY D. v. ADES

Opinion of the Court

5

and instead argues that Joshua J. is distinguishable and, if not 

distinguishable, wrongly decided. We disagree with both 

propositions.

¶8 Kimberly suggests Joshua J. is distinguishable because, 

although the adjudication was held outside the presumptive ninetyday limit, it was held within the maximum permissible 120-day 

limit. We do not find this distinction meaningful. The juvenile court 

in Joshua J. made no finding of extraordinary circumstances. See id. 

¶ 10. Thus, the ninety-day limit was the maximum allowed by

statute. Here, in light of the juvenile court’s finding—which we 

have concluded was proper—the hearing had to be concluded

within 120 days. The reasoning of Joshua J. applies with equal force 

to the 120-day limit, and Kimberly has provided no basis for us to 

conclude otherwise.

¶9 We turn now to Kimberly’s claim that Joshua J. was 

incorrectly decided. “Absent a decision by the Arizona Supreme 

Court compelling a contrary result, a decision by one division of the 

Court of Appeals is persuasive with the other division.” Scappaticci 

v. Sw. Sav. & Loan Ass’n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983). 

Thus, we consider Joshua J. to be “‘highly persuasive and binding, 

unless we are convinced that [it is] based upon clearly erroneous 

principles, or conditions have changed so as to render [it] 

inapplicable.’” Id., quoting Castillo v. Indus. Comm’n, 21 Ariz. App. 

465, 471, 520 P.2d 1142, 1148 (App. 1974). The Joshua J. court 

determined that automatic dismissal was contrary to legislative 

intent in part because children “might then be returned to unsafe 

environments.” 230 Ariz. 417, ¶ 19, 286 P.3d at 172. Kimberly 

claims, without record support, that this conclusion “doesn’t reflect 

the ‘real world’” because ADES can continue to monitor families,

conduct follow-up activities and, if necessary, again remove the 

children and file a dependency petition. Thus, Kimberly reasons,

the court in Joshua J. should have drawn an analogy to the 

exclusionary rule used in criminal cases rather than speedy trial 

requirements. She asserts, therefore, that “unjustified delay by the 

state should . . . result in a dismissal.”

¶10 The exclusionary rule, of course, is intended to deter 

misconduct. See State v. Whitman, 232 Ariz. 60, ¶ 38, 301 P.3d 226, 
KIMBERLY D. v. ADES

Opinion of the Court

6

236 (App. 2013). There is no suggestion here that ADES or the 

Attorney General’s office committed misconduct by seeking to 

extend the time of the hearing. And Kimberly has identified no 

public policy that would be served by automatic dismissal for a 

violation of the time limits of § 8-842(C). Indeed, even assuming 

that she is correct that ADES has other means to protect endangered 

children if a dependency proceeding is dismissed, there is no 

question that allowing an existing dependency proceeding to 

continue is the most expedient method to assure such children are 

protected. Her proposed rule would punish the state to the possible

detriment of at-risk children and is clearly contrary to legislative 

intent. We therefore reject it.

¶11 The juvenile court’s order finding the children 

dependent as to Kimberly is affirmed.