Opinion
No. 2 CA-JV 2013-0125
03-21-2014
I.L., L.L., AND A.L., Appellants, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, JULIA J., DANIEL L. AND GILA RIVER INDIAN COMMUNITY, Appellees.
Pima County Office of Children's Counsel By Sara E. Goldfarb, Tucson Counsel for Appellants Thomas C. Horne, Arizona Attorney General By Erika Z. Alfred, Assistant Attorney General, Tucson Counsel for Appellee Arizona Department of Economic Security
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pima County
No. J151345
The Honorable Catherine M. Woods, Judge
AFFIRMED
COUNSEL
Pima County Office of Children's Counsel
By Sara E. Goldfarb, Tucson
Counsel for Appellants
Thomas C. Horne, Arizona Attorney General
By Erika Z. Alfred, Assistant Attorney General, Tucson
Counsel for Appellee Arizona Department of Economic Security
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Minors I.L., L.L., and A.L., "Indian child[ren]" pursuant to the Indian Child Welfare Act (ICWA), appeal from the juvenile court's order granting the Arizona Department of Economic Security's (ADES's) motion to dismiss the dependency proceeding it had initiated, denying the children's request to substitute as petitioners, and denying their emergency motion for removal from the home. Because the children have failed to show the court erred as a matter of law or abused its discretion, we affirm the court's order.
At present, the children are ages five, three, and fourteen months, respectively.
25 U.S.C. § 1903(4) (definition); see generally 25 U.S.C. § 1901 through 1963.
¶2 We generally review a juvenile court's rulings on motions to modify a child's placement, to substitute a party, or to dismiss a dependency for an abuse of discretion. See, e.g., Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, ¶ 8, 187 P.3d 1115, 1117 (App. 2008) (placement orders); In re Yuma Cnty. Juv. Action No. J-90-283, 168 Ariz. 497, 498, 815 P.2d 424, 425 (App. 1991) (dependency dismissal); cf. Preston v. Kindred Hospitals W, L.L.C., 226 Ariz. 391, ¶ 13, 249 P.3d 771, 774 (2011) (motion to amend to substitute party). But we review de novo a challenge to the court's resolution of legal issues. In re Maricopa Cnty. Juv. Action No. JD-6236, 178 Ariz. 449, 451, 874 P.2d 1006, 1008 (App. 1994).
¶3 Essentially, the children maintain the court's order of dismissal left them "unable to protect their right to proper and effective parental care because they cannot file a dependency petition and pursue adjudication," even though the court expressly granted children's counsel "leave to file a private dependency petition if [she] believes grounds exist to support it, and is ready to assume [the] burden of proof on such a petition." Although the children's arguments are legal in nature, their resolution requires a review of the procedural history of this dependency proceeding.
The children have been represented throughout this proceeding by the Pima County Office of Children's Counsel. Personal pronouns used in this decision refer to the representative of that office who appeared on behalf of the children.
Factual and Procedural Background
¶4 Julia J. is the mother of the three children; Daniel L. is the father of L. and appears to be A.'s father as well. In January 2013, ADES filed a dependency petition alleging that Julia had failed to provide proper pre-natal care for A., who had "tested positive for Valium and methadone" at birth, and that Julia's "ongoing substance abuse impairs her ability to parent and care for all three of the children." ADES alleged that I.'s father had failed to support or protect him; it alleged Daniel was "aware of [Julia's] behaviors and ongoing struggle with substances" but "failed to take any legal steps to protect the children or ensure that [she] was not using substances while pregnant with [A.]" According to the petition, Child Protective Services (CPS) had taken I. into temporary physical custody, but L. and A. remained in the home.
ADES's dependency petition alleged paternity had not been established for A. but suggested Daniel "may be" A.'s father. Although the record contains no express resolution of the issue, the juvenile court later referred to Daniel as the father of both L. and A., and none of the parties dispute this determination. Paternity for I. has not been established, but there is no suggestion Daniel is I.'s father.
According to a CPS report and case plan prepared for the preliminary protective hearing, L. and A. were placed in Daniel's care, and I. was placed with Daniel's parents.
¶5 In February, the Gila River Indian Community ("the Tribe") intervened, after notifying the juvenile court that Julia was an enrolled member of the Tribe, her children were eligible for enrollment, and the proceedings were therefore subject to ICWA. After discussion with the Tribe's counsel, the court ordered that I. be placed with Daniel, as his half-siblings had been, finding it "appropriate [and] in the minor's best interest." And, at a status conference in May, the juvenile court scheduled a contested dependency adjudication hearing for July 26, 2013, finding extraordinary circumstances warranted an extension of the presumptive, ninety-day deadline prescribed by rule. See Ariz. R. P. Juv. Ct. 55(B) ("dependency adjudication hearing shall be completed within ninety (90) days of service of the dependency petition" and may be continued "beyond the time prescribed by law only upon a finding of extraordinary circumstances").
¶6 But on July 16, ADES filed a motion to terminate the dependency. ADES reported that Julia, Daniel, and the Tribe had no objections to the dismissal, but that it had been unable to determine the children's position. On July 26, counsel for the children orally opposed the motion, arguing there was no "reason to say that this dependency doesn't exist now as it existed in January." After initially granting ADES's motion to dismiss, the juvenile court vacated its ruling in order to afford the children an opportunity to file a written response, and all parties agreed the court would rule on the motion to dismiss without further hearing.
¶7 On August 1, the children filed an opposition to ADES's motion for dismissal, urging that the motion be denied on the ground ADES owed a "fiduciary duty" to the children and had not offered "clear evidence that dismissing the action [would] not put the child[ren] at risk." Relying on Rule 17 and Rule 41, Ariz. R. Civ. P., they also suggested the juvenile court was without authority to dismiss the dependency "[a]bsent a stipulation to dismiss" in which they had joined. They told the court they were "willing and able to be substituted as Petitioners in this action to proceed to trial on the merits."
The record does not support the children's assertion that they "orally . . . requested to assume the burden of proof and proceed with the adjudication hearing" on July 26. Rather, children's counsel acknowledged "no one [was] ready or prepared to go forward to trial." Although counsel later stated, "I'm, if necessary, willing to proceed to trial this afternoon," she did not ask to be substituted as petitioner or assume the burden of proof, and instead complained the timing of ADES's motion had deprived her office of a "reasonable amount of time . . . to . . . assess our position and move to . . . become petitioners on their petition in a timely manner."
¶8 Then, in mid-August, the children filed pre-trial statements and an emergency motion for their removal from the home. In these filings, they stated witnesses would testify that on June 18, 2013, CPS had been called to a daycare facility to investigate possibly non-accidental injuries to L. and that, in early July, Daniel had told a law enforcement officer, who responded to a domestic violence call, that Julia "took off with his son." The children did not request an evidentiary hearing on their motion.
¶9 At a status conference and motion hearing held on September 25, the juvenile court granted the state's motion to dismiss and denied the children's motion for removal and their request to be substituted as petitioners. Ruling from the bench, the court stated,
I am today finding it appropriate to grant [ADES's] motion to dismiss the dependency action, and I am denying the minors' emergency motion for removal of children from the home.It also expressly ordered that "minors' counsel [the Pima County Office of Children's Counsel,] is granted leave to file its own dependency action if it believes there are reasonable and good faith grounds" to do so, adding that "whoever may file any new dependency action in the future will have all of the burdens of proof going forward. . . . includ[ing] the burdens under [ICWA] that might apply."
In making this finding, I am persuaded that the Department has repeatedly had contacts with the children
and the parents for at least the past three months, has investigated the allegations of concern in the emergency motion for removal and the concerns raised in the minors' objection to the motion to dismiss. It does appear that the minors have at least one parent who is ready, willing and able to properly and effectively parent them. The minors, at present, appear to be in a safe environment. According to the opinion of the Department's representatives.
The court overruled Julia's objection that its finding be limited to "the appeal period."
¶10 The juvenile court signed its minute entry "as its final order dismissing the Dependency Petition, denying Minors' Request to Substitute, and denying Minors' Motion for Emergency Removal." The minute entry included the court's finding that "the Office of Children's Counsel does have a legitimate interest in the health, safety and welfare of these three children" and expressly granted children's counsel "leave to file a private dependency petition if it believes grounds exist to support it, and is ready to assume its burden of proof on such a petition." The signed minute entry did not reflect any other findings by the court.
Discussion
¶11 "A dependency petition invokes the authority of the court to act on behalf of a child who is alleged to be a dependent child." Ariz. R. P. Juv. Ct. 48(A). As relevant here, a "[d]ependent child" is defined as one who is "[i]n need of proper and effective parental care and control and who has . . . no parent or guardian willing to exercise or capable of exercising such care and control." A.R.S. § 8-201(13)(a)(i). To prevail at a contested adjudication hearing, a petitioner must establish the existence of a dependency by a preponderance of the evidence. Ariz. R. P. Juv. Ct. 55(C).
¶12 But when, as here, a petitioner has alleged the dependency of Indian children subject to ICWA, additional standards and burdens of proof apply throughout the course of dependency proceedings. See, e.g., Ariz. R. P. Juv. Ct. 8 (incorporating ICWA and providing "[t]he court shall make all findings pursuant to the standards and burdens of proof as required by [ICWA]"). And in order to prevail at a dependency adjudication for an Indian child, a petitioner must not only establish, by a preponderance of evidence, that the child is dependent but "[i]n addition . . . must prove, by clear and convincing evidence, including testimony from a qualified expert witness, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child" and "must also satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proven unsuccessful." Ariz. R. P. Juv. Ct. 55(C). "[I]f the petitioner fails to meet the required burden of proof," the court "shall . . . [d]ismiss the petition and return the child to the parent." Ariz. R. P. Juv. Ct. 55(E)(2).
These same standards apply to a juvenile court's review of a temporary custody order involving an Indian child. Ariz. R. P. Juv. Ct. 51(B).
ADES's Motion for Voluntary Dismissal
¶13 Arizona's juvenile court rules do not address a petitioner's motion to voluntarily dismiss a dependency petition, such as the motion ADES filed here. The children urge us to apply Rule 41(a), Ariz. R. Civ. P., which pertains to a plaintiff's dismissal of a civil action. Pursuant to that rule, a plaintiff may voluntarily dismiss an action without leave of court before an adverse party has served an answer or a motion for summary judgment. Ariz. R. Civ. P. 41(a)(1). After that time, an action also may be dismissed "by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared." Id. Relevant to the application the children urge here, Rule 41(a)(2) further provides that an action "shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper" and that such a dismissal is "without prejudice" "[u]nless otherwise specified" by the court. Ariz. R. Civ. P. 41(a)(2). Thus, "'the allowance of a motion to dismiss under Rule 41(a)(2) . . . is discretionary with the court,'" after "notice to defendants [and a] hearing." Goodman v. Gordon, 103 Ariz. 538, 540, 447 P.2d 230, 232 (1968), quoting Grivas v. Parmelee Transp. Co., 207 F.2d 334, 336 (7th Cir. 1953).
Rule 41(a)(2) also provides that an action having a pending counterclaim "shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court."
¶14 The rules of civil procedure "generally do not apply in juvenile proceedings," Don L. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 556, ¶ 7, 975 P.2d 146, 149 (App. 1998), although we have recognized that "[i]n some instances it may be appropriate to resort to the civil rules where the juvenile rules are silent and where the civil rules are readily adaptable and necessary to the dependency proceedings," S.S. v. Superior Court, 178 Ariz. 423, 424, 874 P.2d 980, 981 (App. 1994). According to the children, application of Rule 41(a) is appropriate because the absence of a juvenile court rule that requires the court to "critically examine" a voluntary request for dismissal "has the potential to deprive parties of due process."
¶15 In arguing the juvenile court abused its discretion in granting ADES's motion to dismiss, the children rely on authorities that hold voluntary dismissal is improper if it impairs an adverse party's "substantial legal rights." See Schoolhouse Educ. Aids, Inc. v. Haag, 145 Ariz. 87, 90, 699 P.2d 1318, 1321 (App. 1985) (abuse of discretion to grant voluntary dismissal after plaintiff obtained property from defendant's possession through writ of replevin); Crawford v. Superior Court, 144 Ariz. 498, 499, 501, 698 P.2d 743, 744, 746 (App. 1984) (no abuse of discretion in denying voluntary dismissal that would render defense of contributory negligence "less effective" due to intervening change in law).
¶16 ADES contends "significant portions of Civil Rule 41(a)(1) and (a)(2) are inapplicable in juvenile cases," noting that, pursuant to Ariz. R. P. Juv. Ct. 48(D)(4), "'[n]o responsive pleading to [a dependency] petition is required'" and no juvenile court rule permits a counterclaim in a dependency proceeding. It argues Rule 41(a) is thus not "readily adaptable and necessary to dependency proceedings."
¶17 We need not resolve the issue here, however. Assuming, without deciding, that Rule 41(a) applies to juvenile proceedings, as the children urge, we agree with ADES that the children have failed to establish the juvenile court abused its discretion in granting the dismissal, because the dismissal did not impair any of the children's substantial legal rights. See Goodman, 103 Ariz. at 541, 447 P.2d at 233 ("[O]nly the most extraordinary circumstances will justify" denial of plaintiff's motion to dismiss without prejudice).
No Res Judicata Effect from Dismissal Without Prejudice
¶18 The children do not argue ADES was precluded from moving to voluntarily dismiss the dependency and "agree . . . that when considering a voluntary dismissal, an evidentiary hearing generally is not required." They thus suggest the juvenile court properly could have resolved the motion by "merely inquir[ing] pursuant to Rule 41 whether an interest of the minors would be harmed by the dismissal." But they maintain "in its ultimate ruling, the juvenile court did not proceed as though it were ruling on a voluntary motion to dismiss" but instead "substantively concluded a dependency did not exist."
¶19 This characterization of the juvenile court's ruling is at the heart of the children's argument that the juvenile court abused its discretion in granting ADES's motion to dismiss. The children recognize the court "intended its dismissal to be without prejudice and specifically contemplated the minors could pursue a dependency through the filing of their own petition." But, notwithstanding the court's intent and the language in its signed minute entry, the children maintain the "court conclusively determined the minors' rights with respect to the then-existing dependency petition when it found a dependency did not exist and dismissed ADES's petition." According to the children, the court's ruling thus "operates with respect to future litigation as a dismissal upon the merits" subject to principles of res judicata, and, therefore, the dismissal deprived them of their "substantial legal right" to a dependency adjudication based on any allegations that could have been raised on the date the instant dependency was dismissed.
¶20 We have recently stated that "the doctrine of res judicata must be given limited application to dependency adjudications and proceedings to terminate parental rights," because "‘[c]onsiderations regarding a child's welfare are rarely, if ever, static. In fact, it is more likely that the child's environment is constantly evolving." Bennigno R. v. Ariz. Dep't of Econ. Sec., 233 Ariz. 345, ¶ 16, 312 P.3d 861, 865 (App. 2013), quoting People ex rel. L.S., 721 N.W.2d 83, ¶ 27 (S.D. 2006) (alteration in Bennigno). But even were we to find the doctrine of res judicata, or claim preclusion, generally applicable to dependency determinations, we reject the children's argument that, under the circumstances here, the doctrine would prevent them from proceeding on their own petition after ADES's petition had been dismissed.
This caveat seems particularly appropriate to a finding of dependency, because a determination that a child "has . . . no parent or guardian" who is willing and able to exercise proper and effective parental care and control under § 8-201(13)(a)(i) only reflects the child's status at the time that determination is made. See Ariz. R. P. Juv. Ct. 58(B) (requiring periodic review hearings, after finding of dependency, to "determine whether the child continues to be dependent"); In re Yavapai Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 14, 680 P.2d 146, 150 (1984) ("From a practical perspective, each periodic review of a dependency determination is a new determination of whether or not a child is dependent."); cf. In re Maricopa Cnty. Juv. Action No. JS-8441, 175 Ariz. 463, 467, 857 P.2d 1317, 1321 (App. 1993), abrogated on other grounds by Kent K. v. Bobby M., 210 Ariz. 279, 110 P.3d 1013 (2005) (legislature's use of present tense in referring to "circumstances that cause" child's out-of-home placement, A.R.S. § 8-533(8), reflects intent that court consider "circumstances existing at the time of the severance rather than at the time of the initial dependency petition").
¶21 "Under the doctrine of claim preclusion, a final judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same claim." Dressler v. Morrison, 212 Ariz. 279, ¶ 15, 130 P.3d 978, 981 (2006). "A dismissal without prejudice, however, is not an adjudication on the merits and does not bar a second action under the doctrine of claim preclusion." Airfreight Exp. Ltd v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 13, 158 P.3d 232, 237 (App. 2007). The record here simply does not support the children's assertions that the order appealed from was "a ruling on the merits" of the petition or that "the juvenile court substantively concluded a dependency did not exist."
In light of the requirement in Rule 55(E)(2), Ariz. R. P. Juv. Ct., that a dependency be dismissed "if the petitioner fails to meet the required burden of proof," this characterization of a dismissal might never be appropriate, absent express findings by the court, "just as an acquittal does not establish a [criminal] defendant's innocence." State v. Mohajerin, 226 Ariz. 103, n.6, 244 P.3d 107, 114 n.6 (App. 2010), citing United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984) (acquittal on criminal charges "merely proves the existence of a reasonable doubt as to [defendant's] guilt.").
¶22 The juvenile court's only "findings" at the September hearing were its finding that it was "appropriate to grant [ADES's] motion to dismiss" and its finding that children's counsel "are fully authorized to file a private dependency action." In stating its reasons for granting the motion to dismiss, the court cited ADES's "repeated[] . . . contacts with the children and the parents," its investigation of allegations and concerns raised by the children, and "the opinion of the Department's representatives" that the children, "at present, appear to be in a safe environment" with "at least one parent who is ready, willing, and able to properly and effectively parent them." After close review of the record, we conclude the court's ruling was not based on a determination of facts alleged in the dependency petition, but on its consideration of whether ADES's motion to dismiss the dependency had been made in good faith and was based on sufficient investigation. Cf. In re J.J.Z., 630 A.2d 186, 194 (D.C. 1993) (when state petitioner "makes a motion to dismiss [child neglect petition] based on insufficient evidence and has made a good faith determination that it cannot establish the allegations of the petition, in the absence of an objection based on a lack of good faith, dismissal is appropriate").
Impairment of Right to Proceed after Dismissal of Counsel
¶23 The children's alternative claim of prejudice—that the juvenile court's order impaired their substantial legal right to pursue a dependency adjudication because "[a]s of the expiration of this action, counsel would no longer represent them"—finds little support in the procedural record before us. The court's order provided that counsel would be relieved of "further responsibility in this case once the time for appeal has expired"—which would have been October 15, 2013, fifteen days after the court's signed minute entry was filed, see Ariz. R. P. Juv. Ct. 104(A), and twenty days after the September hearing. On October 10, 2013, the children petitioned this court for special action relief from the court's order. That same day, they asked us to "stay . . . that portion of the [juvenile court's] order relieving counsel of responsibility after the time for appeal has passed" in order to preserve their "right to file a subsequent dependency petition" through their appointed counsel. We granted that request, and the stay remained in effect until we declined jurisdiction of the special action petition on November 12, 2013.
¶24 Thus, leaving aside the children's suggestion of unidentified "potential ethical issues" that allegedly could prevent the Office of Children's Counsel from filing a petition on their behalf after it ceased to represent them, nothing prevented counsel from filing a dependency petition during the six weeks after the court's ruling. Nor has the Office of Children's Counsel, which has represented the children throughout these proceedings, identified any reason it has been precluded from filing a dependency petition on the children's behalf during the pendency of this appeal. We decline to find the juvenile court's dismissal order impaired the children's right to pursue a dependency adjudication when the court expressly granted counsel leave to file a new dependency petition, and counsel failed to do so.
Hearing Procedures
¶25 Similarly, the children have failed to show the juvenile court's order must be reversed because of the procedures followed at the September status conference and hearing. As an initial matter, this argument appears to have been waived. Although children's counsel objected, after the court had ruled, that she had been unable to "cross-examine" the case manager on issues raised by the dependency, she appears to have waived that objection in light of the court's express finding that she was authorized to file a new dependency petition. Even if the argument is not waived, however, we find it without merit.
After the juvenile court had ruled, children's counsel stated, "I'm objecting to the Court's dismissal of this action without allowing me the opportunity to provide evidence, especially [to] cross-examine the State's witness, whom the Court examined," and then added, "But I'm willing to overlook that if the Court will cite for the record some authority that allows me to proceed as a private person to file a dependency for these children when I have been discharged from this case." The court responded that its minute entry would contain a finding that the Office of Children's Counsel is "fully authorized to file a private dependency action."
¶26 The children had agreed that ADES's motion be decided without further hearing, and they failed to request an evidentiary hearing on their motion for removal from the home. Cf. Ariz. R. Juv. Ct. 58(D) ("[a]ny party seeking an evidentiary hearing on any issue [relevant to a dependency review hearing] shall file a motion requesting that the matter be set for a contested hearing" which "shall identify the issues to be litigated, the names and addresses of all witnesses and the estimated time the parties will need to present evidence"). The thirty-minute hearing held in September was therefore limited to counsel's arguments on the pending motions. Counsel presented the juvenile court with his or her client's position and the bases for it, and the children have identified no reason the court was precluded from making further inquiry of counsel. Although the children assert counsel for ADES "essentially testified to the court regarding statements his client[, the CPS case manager,] was whispering in his ear," similar argument had been made by children's counsel at the July hearing, when she relied on her own observations of the children in objecting to dismissal of the dependency. The court did not question the case manager directly until it permitted him to answer a follow-up question raised by children's counsel; the court then asked him to clarify the date and place of ADES's recent conversations with the children.
¶27 Although the juvenile court should have continued to pose any questions to ADES's counsel, as an officer of the court, rather than permit the case manager to answer questions directly without being sworn as a witness, the children have not shown this procedure violated their right to due process, as they seem to allege. See Ariz. R. P. Juv. Ct. 6 (juvenile proceedings "shall be conducted as informally as the requirements of due process and fairness permit"). The children assert, "[T]o the extent the juvenile court resolved factual issues regarding whether a dependency existed . . . it erred by failing to permit the minors to present evidence or cross-examine the [case manager,] whose counsel's statements formed the basis of the court's ruling." But as addressed above, we conclude the court's inquiries were relevant to whether ADES's legal decision to seek a dismissal had been an informed one based on adequate investigation, and were not intended, as the children charge, to support "factual findings and [a] ruling on the existence of a dependency." Because the court did not rule on the merits and instead dismissed the proceeding without prejudice to the children's ability to proceed on their own dependency petition, the children have failed to show they were denied any constitutionally protected right.
¶28 In a single paragraph, the children also argue the juvenile court abused its discretion because it failed to "independently evaluate[] the 'evidence' provided by [ADES's counsel]" and instead cited "the opinion of the Department's representatives" in granting the motion for voluntary dismissal. Citing Maricopa County. No. JD-6236, 178 Ariz. at 451, 874 P.2d at 1008, the children point out that we have recognized the court's "ongoing responsibility to review [A]DES's placement, case planning, and services" while a dependency proceeding is pending. In that case, for example, we determined the court had erred in approving a child's placement based only on its finding that ADES had not "abused its discretion" in recommending a transfer. Id. But the children have developed no argument regarding whether a court's "independent[] evaluat[ion]" is similarly required when a petitioner moves to voluntarily dismiss a dependency, or, if required, the scope of such an evaluation. In particular, the children fail to explain how this proposition is consistent with their position—clearly stated in their briefs—that ADES's motion could properly have been decided without an evidentiary hearing. In the absence of meaningful argument on the issue, we decline to consider the nature and scope of any review that may be required before a dependency is voluntarily dismissed by a petitioner. See Ariz. R. Civ. App. P. 13(a)(6) (opening briefs must present "[a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"); Ariz. R. P. Juv. Ct. 106(A) (Rule 13, Ariz. R. Civ. App. P., applies to juvenile appeals); City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 2008) (appellate court will not address issues waived by party's failure to develop adequate argument).
¶29 In summary, to the extent the children suggest it would have been appropriate for the juvenile court to "merely inquire pursuant to Rule 41 whether an interest of the minors would be harmed by the dismissal," the court appears to have done just that. After making such inquiry, the court apparently concluded the children's legal interests were adequately protected by their ability to file a new petition directly, through appointed counsel. See Cheney v. Superior Court, 144 Ariz. 446, 448, 698 P.2d 691, 693 (1985) ("the mere prospect of a second suit does not constitute substantial prejudice" justifying denial of motion to voluntarily dismiss). The children have failed to show the court abused its discretion in granting ADES's motion to dismiss.
The Children's Request for Substitution
¶30 Relying on Arizona Department of Economic Security v. Superior Court, 178 Ariz. 236, 240-41, 871 P.2d 1172, 1176-77 (App. 1994), the children argue the juvenile court possessed "inherent powers" to enter orders "'essential to the due administration of justice,'" including the substitution of a party-petitioner. Id., quoting State ex. rel Polley v. Superior Court, 181 Ariz. 127, 130, 302 P.2d 263, 265 (1956). They argue "in the absence of an objection by the parents, [they] should have been permitted to substitute [as petitioners and proceed] on ADES's dependency petition" and the court therefore abused its discretion in denying their request to do so. We disagree.
¶31 As ADES argues, the juvenile court properly could consider that the dependency already had been pending well past the presumed ninety-day deadline for an adjudication and that the children had failed to establish their ability to meet the required standard of proof. Despite the children's assertion that they were "willing and able to be substituted as Petitioners in this action to proceed to trial on the merits of the dependency petition," their pre-trial statements failed to identify the expert testimony required to sustain their burden of proof under ICWA. In light of these circumstances, the children have failed to show the court abused its discretion in denying their request to be substituted as petitioners. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 13, 119 P.3d 1034, 1037 (App. 2005) ("We review a juvenile court's ruling on a discretionary matter for a clear abuse of the court's discretion.").
Expert testimony also would have been required to sustain the children's burden of proof on their emergency motion for removal. See 25 U.S.C. § 1912(e). ("No foster care placement may be ordered . . . in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."). At the September hearing, the children suggested the juvenile court rule on ADES's motion to dismiss and their request for substitution before setting a future evidentiary hearing on their motion for removal; the court did so, and its dismissal of the dependency rendered the motion for removal a nullity. See Osuna v. Wal-Mart Stores, Inc., 214 Ariz. 286, ¶ 10, 151 P.3d 1267, 1270 (App. 2007) (after dismissal without prejudice, "trial court no longer has 'jurisdiction to grant affirmative relief to the parties'"), quoting Crawford v. Crawford, 20 Ariz. App. 599, 600, 514 P.2d 1050, 1051 (1973).
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Disposition
¶32 The children have failed to establish the juvenile court abused its discretion in granting ADES's motion to dismiss the dependency, in denying their request to be substituted as petitioner, or in denying their motion for removal, all without prejudice to the children filing a private dependency petition if "ready to assume [their] burden of proof on such a petition." Accordingly, the court's order is affirmed.