Kimberly D.-D. v. Arizona Department of Economic Security

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

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

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 KIMBERLY D. v. ADES
Opinion of the Court
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.

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 KIMBERLY D. v. ADES
Opinion of the Court
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

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 KIMBERLY D. v. ADES
Opinion of the Court
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 ninety-
day 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,

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Opinion of the Court
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.

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