Opinion
No. 1 CA-JV 17-0269
11-28-2017
MANDEE M., Appellant, v. DEPARTMENT OF CHILD SAFETY, K.M., Appellees.
COUNSEL John L. Popilek, P.C., Scottsdale Counsel for Appellant Arizona Attorney General's Office, Mesa By Ashlee N. Hoffmann Counsel for Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. JD529914
The Honorable Timothy J. Ryan, Judge
VACATED
COUNSEL John L. Popilek, P.C., Scottsdale
Counsel for Appellant Arizona Attorney General's Office, Mesa
By Ashlee N. Hoffmann
Counsel for Appellees
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined. OROZCO, Judge:
The Honorable Judge Patricia A. Orozco, retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Mandee M. (Mother) appeals from the trial court's order imposing a $500.00 sanction against her for failing to attend her dependency report-and-review hearing. For the following reasons, we vacate the imposition of the fine.
FACTS AND PROCEDURAL HISTORY
¶2 The Department of Child Safety (DCS) filed a dependency petition against Mother and Father. In January 2017, the juvenile court set a report-and-review hearing for May 23 at 9:00 a.m. Because Mother's therapist "recommended that [she] not have direct contact with [F]ather," Mother filed a "motion for bifurcated hearings." The court granted the motion and scheduled Mother's hearing for May 23 at 10:45 a.m.
Father is not a party to this appeal. --------
¶3 Father orally moved to dismiss the dependency during his hearing, and the State did not oppose the dismissal. The court therefore dismissed the dependency action. When Mother's hearing began, Mother was not present. The following exchange occurred:
The Court: Now, counsel, my understanding is Mother was here and she left?
[Mother's counsel]: Yes, Your Honor.
The Court: Okay. It's ordered affirming the dismissal. It's further ordered that Mother . . . pay to the Office of Public Defender Services $500 within 30 days of today's date, for . . .
requesting a scheduled hearing . . . which she purposely did not attend.
¶4 The court subsequently entered a final order dismissing the dependency petition and affirming the imposition of the fine, reiterating that Mother had "purposefully" failed to attend the hearing. Mother filed a notice of appeal challenging only the $500.00 fine. For purposes of this decision, we assume, without deciding, the $500.00 fine is a contempt finding. A finding of contempt is generally not appealable, and may only be reviewed by special action. In re Juv. Action No. JT-295003, 126 Ariz. 409, 411-12 (App. 1980). In the exercise of our discretion, we elect to treat Mother's appeal as a petition for special action, accept jurisdiction, and grant Mother relief. See Peace v. Peace, 234 Ariz. 546, 547, ¶ 4 (App. 2014).
DISCUSSION
¶5 In general, this court reviews contempt findings and resulting sanctions for an abuse of discretion. See Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 9 (App. 2010). We will accept the juvenile court's factual findings unless no reasonable evidence supports those findings. See Bennigno R. v. Ariz. Dep't Econ. Sec., 233 Ariz. 345, 346-47, ¶ 2 (App. 2013).
¶6 Under A.R.S. § 8-247, the juvenile court has "specifically been granted contempt power by statute." JT-295003, 126 Ariz. at 411 (citing the previous version of the statute). The juvenile court may punish a person for contempt of court if it concludes, for example, that the person is "obstructing or interfering with the proceedings of the juvenile court." A.R.S. § 8-247. But a finding of contempt and any resulting sanction must comply with due process. Cf. Lund v. Donahoe, 227 Ariz. 572, 583, ¶ 41 (App. 2011).
¶7 Here, there is absolutely no evidence supporting the court's conclusion that Mother "purposefully" failed to attend her hearing. At the hearing, the court did not try to find out why Mother was absent. Nor did it give Mother a subsequent opportunity to explain her absence before imposing the fine. The lack of any record explaining her absence leaves this court speculating about why she failed to attend. Mother could have been absent as a result of pure negligence. It is just as likely she failed to attend because she had a medical emergency. Whatever the reason might have been, there is no evidence to support the court's finding that Mother "purposefully" failed to attend the hearing. See Bennigno R., 233 Ariz. at 346-47, ¶ 2. Consequently, we vacate the portion of the juvenile court's order imposing a $500.00 fine.
CONCLUSION
¶8 For the reasons previously stated, we vacate the imposition of the $500.00 fine against Mother.