IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

BRIONNA J., Appellant, 

v.

DEPARTMENT OF CHILD SAFETY, A.V., Appellees. 

No. 1 CA-JV 19-0017 

Appeal from the Superior Court in Maricopa County

No. JD530462 

The Honorable Karen L. O’Connor, Judge

APPEAL DISMISSED; JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

David W. Bell Attorney at Law, Mesa

By David W. Bell

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Laura J. Huff

Counsel for Appellee Department of Child Safety

FILED 7-9-2019
BRIONNA J. v. DCS, A.V. 

Opinion of the Court

2 

OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in 

which Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined.

M c M U R D I E, Judge:

¶1 Brionna J. (“Mother”) appeals the juvenile court’s order 

denying her motion to return her child, Anya, to her custody. We conclude 

we lack appellate jurisdiction of Mother’s appeal because we hold that the 

denial of an Arizona Rule of Procedure for the Juvenile Court (“Rule”) 59 

motion to return the custody of a child to a parent is not a final and 

appealable order. We will, however, treat the appeal as a special action, 

accept jurisdiction but deny relief because, as discussed below, the issue is 

moot. 

FACTS AND PROCEDURAL BACKGROUND

¶2 This appeal arises from a dependency action initiated against 

Mother and Anya’s father, Christopher V. (“Father”), in November 2016.

When the dependency petition was filed, Mother and Father were living 

separately and had been involved in a custody battle over Anya. In March 

2017, the juvenile court adjudicated Anya dependent, placed Anya in 

out-of-home care, and established the case plan for both Mother and Father 

as family reunification. After more than a year of ongoing dependency 

proceedings, Mother filed a motion requesting the court return Anya to her 

custody according to Arizona Revised Statutes (“A.R.S.”) section 8-861 and 

Rule 59. Father also filed a Rule 59 motion requesting Anya be returned to 

his custody.

¶3 The court suggested deciding both parents’ Rule 59 motions

simultaneously, and the parties agreed. Mother argued that returning Anya 

to her care was appropriate because Mother had completed all the services 

provided to her by the Department of Child Safety (“DCS”). To support her 

argument, Mother presented testimony concerning her successful 

completion of parent-aide services and contended she had completed 

therapy services with the Veteran’s Administration. In response, DCS, 

Father, and Anya’s guardian ad litem argued Father was closer to 

reunification with Anya than Mother, and, therefore, granting his Rule 59 

motion over Mother’s was in Anya’s best interests. DCS, Father, and Anya’s 
BRIONNA J. v. DCS, A.V. 

Opinion of the Court

3 

guardian ad litem also expressed concern that while Mother had completed 

some services, she had not made the behavioral changes necessary to regain 

custody. 

¶4 After the parties presented their arguments, the court opined 

that “Father [was] a little bit further along than Mother to have reunification 

with Anya,” and granted Father’s Rule 59 motion. The court stated that 

“[b]ecause [it] granted Father’s Rule 59 motion, [it was] denying Mother’s

Rule 59 motion,” and explained that, “Father is more ready than Mother to 

have Anya in his custody.” The court then granted Anya’s guardian ad 

litem’s request to change physical custody of Anya to Father and 

subsequently filed a signed minute entry reflecting its orders. 

¶5 Mother filed a notice of appeal from the signed minute entry. 

While this appeal was pending, DCS moved to change the physical custody 

of Anya back to an out-of-home placement because an incident between 

Anya and Father caused Anya to feel unsafe in Father’s home. The court 

granted the motion, finding that continuing in-home placement would be 

contrary to Anya’s welfare and that Anya’s placement with DCS was 

consistent with her best interests.

DISCUSSION

¶6 Mother argues the juvenile court abused its discretion by 

denying her Rule 59 motion because it had granted Father’s Rule 59 motion. 

Mother contends the juvenile court could have granted both parents’ Rule 

59 motions and then made custodial arrangements for the parents and 

Anya. See Ariz. R. Fam. Law P. 5.1(a)(2) (“The juvenile division will hear 

legal decision-making and parenting time issues until the dependency is 

dismissed or the juvenile division defers jurisdiction to the family 

division.”).1 Before we can address the issue raised by Mother, however, 

we must examine whether we have jurisdiction to decide an appeal from 

 

1 Mother’s and Father’s Rule 59 motions, though heard 

simultaneously, were not competing motions. A parent need not show he 

or she is closer to reunification than the other parent to succeed on a Rule 

59 motion, only that returning the child to his or her custody will “not create 

a substantial risk of harm to the child’s physical, mental or emotional health 

or safety.” If both parents independently meet the Rule 59 burden, the 

juvenile court has the authority under Arizona Rule Family Law Procedure

5.1(a)(2), to determine “legal decision-making and parenting time issues” 

for the child. 
BRIONNA J. v. DCS, A.V. 

Opinion of the Court

4 

an order denying a Rule 59 motion. See Maricopa County Juv. Action No. 

J-79149, 25 Ariz. App. 78, 78 (1975) (“Before considering the merits of a 

juvenile appeal, this Court conducts a preliminary review of the record in 

order to determine whether or not it has jurisdiction.”).

A. An Order Denying a Parent’s Rule 59 Motion is not a Final and 

Appealable Order. 

¶7 “The Court of Appeals is a court of limited jurisdiction and 

has only jurisdiction specifically given to it by statute.” Francisco F. v. ADES, 

228 Ariz. 379, 381, ¶ 6 (App. 2011) (quoting Campbell v. Arnold, 121 Ariz. 370, 

371 (1979)). Our jurisdiction over appeals from juvenile court rulings is 

governed by A.R.S. § 8-235(A), which provides that “[a]ny aggrieved party 

in any juvenile court proceeding . . . may appeal from a final order of the 

juvenile court.” See also Ariz. R.P. Juv. Ct. 103(A) (“Any aggrieved party 

may appeal from a final order of the juvenile court to the court of appeals.”).

¶8 Our supreme court has held that because dependency 

proceedings implicate the “important and fundamental right to raise one’s 

children,” we do not apply a “narrow, technical conception of what 

constitutes a final order” under A.R.S. § 8-235(A). Yavapai County Juv. Action 

No. J-8545, 140 Ariz. 10, 14 (1984). Instead, we must consider “the practical 

effect that the . . . order would have on that right,” Maricopa County Juv. 

Action No. JD-5312, 178 Ariz. 372, 374 (App. 1994), to decide whether the 

given order “disposes of an issue such that it conclusively defines the rights 

and/or duties of a party in a dependency proceeding in the juvenile court 

of this state,” J-8545, 140 Ariz. at 15. 

¶9 With these principles in mind, we now turn to whether the 

juvenile court’s order denying Mother’s Rule 59 motion was a final and 

appealable order. Rule 59(A) states that: 

At any time after the temporary custody hearing, a 

parent . . . may file a motion with the court requesting return 

of the child to the custody of the parent . . . . The court shall 

set a hearing to determine whether return of the child would 

create a substantial risk of harm to the child’s physical, mental 

or emotional health or safety. 

After the hearing, Rule 59(E) controls the juvenile court’s disposition of the 

motion and provides that the court shall either:

1. Return the child to the parent . . . if the court finds, by a 

preponderance of the evidence, that return of the child would 
BRIONNA J. v. DCS, A.V. 

Opinion of the Court

5 

not create a substantial risk of harm to the child’s physical, 

mental or emotional health or safety; or

2. Affirm prior custody orders; and

3. Set additional hearings as required by law; [and] 

* * * 

6. Make findings and enter any other orders as may be 

appropriate or required by law.

¶10 Unlike an order relieving DCS of its obligation to provide 

reunification services, see Francisco F., 228 Ariz. at 381–82, ¶ 8, an order 

terminating visitation, see JD-5312, 178 Ariz. at 374, or a dependency 

disposition order, see Lindsey M. v. ADES, 212 Ariz. 43, 45, ¶ 8 (App. 2006), 

an order denying a parent’s Rule 59 motion does not define or alter the 

obligations or rights of a parent subject to the dependency proceedings. It 

does not, for example, change the child’s dependent status, see J-8545, 140 

Ariz. at 14 (orders determining or reaffirming a child’s dependent status are 

appealable), nor does it have a “substantial impact” on a parent’s ability to 

participate in services, but see Maricopa County Juv. Action No. JD-500116, 160 

Ariz. 538, 542 (App. 1989) (order changing the placement of the child to 

another state appealable because of its substantial impact on the appealing 

parent’s ability to maintain contact with the child). The order, which keeps 

the status quo of the dependency, merely reflects a finding that the parent 

has failed to show, at the time of the hearing, that returning the dependent 

child to the parent’s custody would not create a substantial risk to the 

child’s health or safety. Likewise, nothing about an order denying a Rule 59 

motion purports to be conclusive as the parent may refile the motion if 

cause exists to do so. See Ariz. R.P. Juv. Ct. 59(A) (parent may file a motion 

for return of the child “[a]t any time after the temporary custody hearing” 

(emphasis added)). Thus, an order denying a Rule 59 motion is

interlocutory, and therefore not a final and appealable order. Cf. Gutierrez 

v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017) (temporary parenting orders are 

“merely preparatory to a later proceeding,” therefore, they are not 

appealable and require a party to seek special action relief).

¶11 Our conclusion is bolstered by the practical ramifications of 

holding that a parent may appeal an order denying a Rule 59 motion.

During the pendency of an appeal, the superior court lacks jurisdiction to 

issue any orders in the case on appeal that would “legally or practically 

prevent the appellate court from granting the relief requested on appeal.” 

Ariz. R.P. Juv. Ct. 103(F); see also Bank of N.Y. Mellon v. Dodev, 246 Ariz. 1, 7, 
BRIONNA J. v. DCS, A.V. 

Opinion of the Court

6 

¶ 18 (App. 2018) (when an appeal is properly invoked, the superior court 

cannot issue orders that would defeat or usurp the ability of the appellate 

court to render a decision); Castillo v. Indus. Comm’n, 21 Ariz. App. 465, 467 

(1974) (“The principle is well established that an appeal generally divests 

the trial court of jurisdiction to proceed except in furtherance of the 

appeal.”). Therefore, if a parent could appeal from an order denying a Rule 

59 motion, the juvenile court would be unable to order the dependent child 

returned to the custody of the appealing parent or to make any new 

determination concerning placement of the child with that parent, lest the 

appeal be rendered moot. But cf. Roberto F. v. DCS, 237 Ariz. 440, 442, 

¶¶ 9–13 (2015) (juvenile court not divested of jurisdiction to order adoption

pending appeal of the termination-of-rights order in a separate proceeding

because “Rule 103(F) applies only to the case on appeal”). Such a result 

would be contrary to the primary purpose of A.R.S. § 8-861 and Rule 59, 

which is to “expedit[e] the process of finding permanent placement for 

children.” Rita J. v. ADES, 196 Ariz. 512, 515, ¶ 10 (App. 2000). A contrary 

conclusion would undermine the fundamental right that the expanded 

concept of a final and appealable order in a juvenile proceeding was 

designed to protect. See J-8545, 140 Ariz. at 14. 

¶12 For these reasons, we lack appellate jurisdiction over 

Mother’s putative appeal. 

B. Special Action Review of the Order Denying Mother’s Rule 59 

Motion is Appropriate, but Mother’s Claim has been Rendered

Moot.

¶13 Although we lack appellate jurisdiction to decide whether the 

court erred by denying Mother’s Rule 59 motion, we may nevertheless 

“exercise our discretionary special action jurisdiction under appropriate 

circumstances, even when the parties have not requested such relief.” 

Phillips v. Garcia, 237 Ariz. 407, 410, ¶ 6 (App. 2015); see also A.R.S. 

§ 12-120.21(A)(4) (court of appeals has “[j]urisdiction to hear and determine 

petitions for special actions brought pursuant to the rules of procedure for 

special actions, without regard to its appellate jurisdiction”). “Special action 

jurisdiction is proper when a party has no equally plain, speedy, and 

adequate remedy by appeal.” Phillips, 237 Ariz. at 409, ¶ 6; Ariz. R.P. Spec. 

Act. 1(a); see also Rita J., 196 Ariz. at 515, ¶¶ 10–11 (parent has right to seek 

special action review from juvenile court’s ruling after a permanency 

hearing). 

¶14 Given the fluid, time-sensitive nature of placement 

determinations, we find it appropriate to exercise special action jurisdiction
BRIONNA J. v. DCS, A.V. 

Opinion of the Court

7 

here. There can be little doubt that any remedy Mother might acquire by 

appeal, were it available to her, “could hardly be characterized as equally 

plain, speedy, or adequate.” Rita J., 196 Ariz. at 515, ¶ 10. Moreover, in 

deciding whether to accept special action jurisdiction, we must exercise our 

discretion “in light of the fundamental right at stake” in dependency 

proceedings. J-8545, 140 Ariz. at 14. Thus, we will treat Mother’s appeal as 

a petition for special action and accept jurisdiction. 

¶15 However, before we can reach the merits, we must determine 

whether Anya’s return to DCS’s custody and a foster-care placement has 

caused this petition to become moot. “A case is moot when it seeks to 

determine an abstract question which does not arise upon existing facts or 

rights.” In re MH 2008-000028, 221 Ariz. 277, 281, ¶ 13 (App. 2009) (quoting 

Contempo-Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229 

(App. 1985)). 

¶16 On April 13, 2019, while Mother’s appeal was pending, DCS 

substantiated a report of neglect against Father. Shortly thereafter, DCS

held a removal team decision-making meeting to determine whether Anya 

should remain in Father’s home. Mother attended the meeting but allegedly 

became so disruptive that DCS asked her to leave. After the meeting, DCS 

filed a motion asking the juvenile court to place Anya back in DCS’s care. 

Mother did not object to the motion, and, on May 14, 2019, the court ordered 

that Anya be placed in out-of-home care. In its order, the juvenile court 

found that placing Anya into DCS’s custody was the “least restrictive” 

placement available, its ruling was “consistent with [Anya’s] best 

interests,” and continuation of Anya in Father’s home would be contrary to 

her welfare. The court also specifically noted that Mother attended the 

removal team decision-making meeting but was asked to leave. 

¶17 The juvenile court’s subsequent order awarding temporary

custody of Anya to DCS and foster care has rendered Mother’s claims of 

error regarding the original Rule 59 hearing moot. Regardless of what we 

might say about the court’s decision to deny Mother’s Rule 59 motion in 

January 2019, the juvenile court has now made new findings, based on the

circumstances as they exist today, that Anya’s placement in foster care is 

the least restrictive placement available and is consistent with her best 

interests. Implicit within those findings was a determination that placing 

Anya in foster care was more consistent with Anya’s best interests than

other placement options, including Mother. See A.R.S. § 8-514(B) (DCS must 

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

preference to placement with a parent); Pima County Severance Action No. 

S-1607, 147 Ariz. 237, 238 (1985) (“[T]he juvenile court will be deemed to 
BRIONNA J. v. DCS, A.V. 

Opinion of the Court

8 

have made every finding necessary to support the judgment.”). “[T]he 

juvenile court is obligated to oversee the dependency case, to consider the 

best interests of the child in every decision, and to ‘independently review 

the decisions and recommendations of [DCS],’” including requests to 

change custody of the dependent child. Alexander M. v. Abrams, 235 Ariz. 

104, 107, ¶ 15 (2014) (quoting Maricopa County Juv. Action No. JD-6236, 178 

Ariz. 449, 452 (App. 1994)). 

¶18 This situation only further illustrates why special action 

review of an order denying a Rule 59 motion is particularly appropriate. 

Under the circumstances as they currently stand, however, we are 

compelled to conclude Mother’s petition has become moot, and that we 

must deny relief.

CONCLUSION

¶19 For the foregoing reasons, we conclude we lack appellate 

jurisdiction of Mother’s appeal, accept special action jurisdiction but deny 

relief.