In Re Guardianship of E.C. and A.S.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN RE GUARDIANSHIP OF E.C. and A.S.

No. 1 CA-JV 23-0173
FILED 2-27-2024

Appeal from the Superior Court in Maricopa County
No. JD533269
The Honorable Marvin Davis, Judge

VACATED AND REMANDED

COUNSEL

Denise L. Carroll, Scottsdale
Counsel for Appellant Mother

Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee Department of Child Safety
 IN RE GUARDIANSHIP OF E.C. and A.S.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Genesis S. (Mother) challenges an order denying her petition
to revoke a permanent guardianship, arguing the superior court erred by
not holding an evidentiary hearing addressing best interests. Conceding
error, the Department of Child Safety (DCS) asks that the matter be
remanded for the court to clarify the basis of its decision or hold an
evidentiary hearing. Accepting the concession of error, the order is vacated,
and this matter is remanded for the court to either hold an evidentiary
hearing or otherwise explain the basis of its decision.

FACTS AND PROCEDURAL HISTORY

¶2 Mother’s minor children E.C. and A.S. were found dependent
in 2020 and 2021, respectively. In August 2021, with Mother’s support, the
children’s maternal aunt was appointed permanent guardian pursuant to
Arizona Revised Statute (A.R.S.) Section 8-872 (2024).1 In April 2023, as a
self-represented party, Mother made a filing seeking the return of her
children, construed as a request to revoke guardianship. See A.R.S. § 8-873.
The court then appointed counsel for Mother.

¶3 At a June 2023 status conference, the court ordered DCS to
“conduct an immediate investigation into the [children’s] living situation to
determine if the revocation of the guardianship is in the [children’s] best
interest,” to investigate possible visitation with Mother, to prepare a written
report of those investigations and provide a copy of that report to all
parties. The court set an August 2023 status conference to address the DCS
report.

¶4 At that August 2023 status conference, the court stated it had
considered a report from DCS. Both DCS and the children’s guardian ad
litem (GAL) objected to revoking the guardianship. Mother disagreed and

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

refer to the current version unless otherwise indicated.

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 IN RE GUARDIANSHIP OF E.C. and A.S.
Decision of the Court

asked the court to set the matter “for an evidentiary hearing.” The court
asked if there was “any reason to believe that this matter could not be ruled
on based upon the pleadings and oral argument here today?” The relevant
pleading on file was Mother’s April 2023 petition seeking return of the
children. DCS and the GAL repeated their positions that the guardianship
should remain in place, while Mother’s counsel stated, “we do need to have
presentation of evidence” to address best interests, “[s]o we are asking for
a full evidentiary hearing.” The court then stated that, “based on the
statements made here today, based on what’s been filed, I’m going to deny
the request to revoke the guardianship,” adding that the DCS report
“doesn’t suggest or conclude that it’s in the best interest of the children to
have that guardianship revoked.”

¶5 After the court’s ruling, Mother stated “I don’t understand
why this is going on when my son’s getting physically abused from the
(indiscernible) . . . I don’t understand why you guys are doing this.” The
court responded that Mother should “speak with your counsel on that
issue.” This court has jurisdiction over Mother’s timely appeal of that denial
pursuant to A.R.S. §§ 8-235, 12-120.21(A)(1) and -2101(A) and Ariz. R.P. Juv.
Ct. 601-03.

DISCUSSION

¶6 Mother argues she was entitled to an evidentiary hearing on
her request to revoke the guardianship. By rule, at a status conference like
the one conducted here, unless it orders the preparation of further reports
or continues the hearing, the court may “set a contested hearing if a party
objects to the petition.” Ariz. R. P. Juv. Ct. 349(e)(3). After such an
evidentiary hearing, the court may rule on the petition, including granting
it if petitioner “proves a change of circumstances by clear and convincing
evidence and the revocation is in the child’s best interest.” A.R.S. § 8-873(C).
In this case, it was uncontested that there was a change of circumstances,
leaving open whether revocation was in the children’s best interests.

¶7 The court appears to have made its best interests ruling on the
DCS report, which was not received as an exhibit and is not part of the
record on appeal. DCS concedes on appeal that, because “it is unclear from
the record” whether that report “contained disputed issue of material fact,
this Court should remand the matter to the juvenile court for it to either
clarify that there were no disputed issues of material fact in DCS’s court
report that necessitated a hearing or hold an evidentiary hearing if there
were disputed issues of fact in the report.” Although this court is not
required to accept this concession of error, State v. Sanchez, 174 Ariz. 44, 45

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Decision of the Court

(App. 1993), particularly given that the children’s best interests are at issue,
the court does accept this concession of error in this case.

CONCLUSION

¶8 The order denying Mother’s request for revocation of
guardianship is vacated. This case is remanded for the superior court to
hold an evidentiary hearing where, among other things, Mother can offer
evidence supporting her request and contest DCS’ court report, or to
articulate the undisputed material facts on which it bases its finding
without an evidentiary hearing.

AMY M. WOOD • Clerk of the Court
FILED: AA

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