Opinion
No. 1 CA-JV 11-0105
10-04-2011
MICHELET S., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, SERENITY S., FATIMA S., Appellees.
Maricopa County Superior Court No. JD508903
DECISION ORDER
The court, Presiding Judge Margaret H. Downie and Judges Peter B. Swann and Donn Kessler, participating, has considered this appeal.
Michelet S. ("Father") appeals from an order denying his motion for genetic testing in an ongoing dependency case. Because this is not an appealable order, we lack jurisdiction over the appeal. See Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App. 1991) (an appellate court has the independent duty to review its jurisdiction over a matter and to dismiss an appeal if jurisdiction is lacking).
Father adopted sisters S.S. and F.S. in 2007. His deceased brother is listed as the biological father on both girls' birth certificates. The Arizona Department of Economic Security ("ADES") removed the children from Father's care in October 2010 and later filed a dependency petition. The juvenile court found the children dependent as to Father.
Several months later, Father filed a motion requesting genetic testing of the children, explaining that his brother's paternity had never "been established by genetic testing" and stating it was "imperative that [Petitioner] know[] with certainty whether his adopted children are in fact of his family line." ADES and the children's guardian ad litem opposed Father's motion. The court denied the motion in a signed minute entry. Father filed a notice of appeal from "the Ruling . . . denying father's motion for the children to submit to genetic testing."
"Any aggrieved party may appeal from a final order of the juvenile court to the court of appeals." Ariz. R.P. Juv. Ct. 103(A). Our appellate courts have held that certain orders entered before the conclusion of a dependency proceeding are in fact appealable. See, e.g., Yavapai County Juv. Action No. J-8545, 140 Ariz. 10, 14, 680 P.2d 146, 150 (1984) (allowing appeals from findings of dependency); Maricopa County Juv. Action No. JD-500116, 160 Ariz. 538, 542, 774 P.2d 842, 846 (App. 1989) (order transferring child from Phoenix foster home to maternal relatives in Florida was appealable because it would "have a substantial impact on the natural father's practical ability to have any contact with his child," affecting his fundamental rights as a parent); Maricopa County Juv. Action No. JD-5312, 178 Ariz. 372, 374, 873 P.2d 710, 712 (App. 1994) (order terminating visitation in a dependency case is appealable because it conclusively defines the parent's visitation rights).
Other interlocutory orders issued in dependency cases are not appealable. See Maricopa County Juv. Action No. J-57445, 143 Ariz. 88, 92, 691 P.2d 1116, 1120 (App. 1984) (order changing foster child's placement from one home to another is not appealable); Rita J. v. Ariz. Dep't of Econ. Sec., 196 Ariz. 512, 513, ¶ 1, 1 P.3d 155, 156 (App. 2000) (order finding that a return to mother would create substantial risk of harm and approving concurrent case plans of reunification and severance was not appealable); cf. Jared P. v. Glade T., 221 Ariz. 21, 27, ¶ 30, 209 P.3d 157, 163 (App. 2009) (order that putative father had not established paternity and, as a result, could not participate in adoption proceeding was not a final order for purposes of appeal; decree of adoption was the final order giving rise to his appeal rights).
The denial of Father's motion for genetic testing neither "conclusively defines [his] rights and/or duties," J-8545, 140 Ariz. at 15, 680 P.2d at 151, nor affects his fundamental rights as a parent, JD-500116, 160 Ariz. at 542, 774 P.2d at 846. It is instead an interlocutory order that resolves one narrow (and arguably collateral) issue in the ongoing dependency proceedings. See Rita J., 196 Ariz. at 515, ¶ 8, 1 P.3d at 158 ("An order 'is interlocutory if it directs an inquiry into a matter of fact preparatory to a final decision' and is not the final decision in the case.") (citation omitted).
Because the order denying Father's motion for genetic testing is not appealable, we lack jurisdiction over this appeal.
IT IS THEREFORE ORDERED dismissing father's appeal. IT IS FURTHER ORDERED vacating conference scheduled for October 25, 2011, before Department B.
MARGARET H. DOWNIE,
Presiding Judge