THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

JOHNSEN, Judge.

¶ 1 Tammy D. ("Grandmother") appeals the superior court's dismissal of her Motion to Set Aside Adoption pursuant to Arizona Rule of Procedure for the Juvenile Court 85. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 J.D. ("Mother") gave birth to D.D. in 2007 and S.D. in 2008. Mother left the children in Grandmother's care. In early August 2008, the Arizona Department of Economic Security ("ADES") took the children into temporary physical custody. On August 13, ADES filed a dependency petition, alleging Mother had left the children in the care of "an inappropriate caregiver," namely Grandmother.

¶ 3 Child Protective Services ("CPS") then evaluated Grandmother and her boyfriend and recommended against placing the children with Grandmother. The superior court ruled the children dependent and placed them in the custody of ADES. The court found that placing the children with Grandmother was not in their best interests at that time because she had an unfit home. A few weeks later, Grandmother underwent a second assessment by CPS, and CPS again recommended not placing the children in her care. Grandmother then filed a motion to intervene in the dependency action, which the court denied. Grandmother appealed the order denying her motion; her appeal was dismissed for lack of jurisdiction.

¶ 4 On August 11, 2009, ADES moved to terminate the children's relationships with their parents. The court granted the motion on May 7, 2010. In its termination order, the court found ADES had "attempted to identify and assess placement with the children's grandparent or extended family" as required by statute and that while Grandmother had been considered for placement, she did not pass the home study. Accordingly, the court found placement with Grandmother was not in the children's best interests. Although Grandmother had filed a notice of appeal from a March 9, 2010 order ending her visitations with the children and approving their placement in foster care, she did not appeal the judgment of termination.1

¶ 5 Adoption proceedings for the two children were set for May 12, 2010. Grandmother filed an objection in which she argued that CPS had failed properly to investigate her as a potential placement and had "provided this Court with erroneous information as to the circumstances at Petitioners [sic] home." She asked the court to stay the adoption "until the Appeal is completed." At a hearing on May 12, 2010, the court denied Grandmother's motion to stay the adoption proceedings and granted the foster parents' order of adoption. Grandmother did not file a notice of appeal from the adoption order.

¶ 6 On October 26, 2010, Grandmother filed a motion to set aside the adoption pursuant to Arizona Rule of Procedure for the Juvenile Court 85. Her motion asserted in summary fashion that the adoption should be set aside because of "Newly Discovered Evidence" and "Fraud, misrepresentation, and misconduct of an adverse party" and that "The Judgment is Void." Her motion argued that "neither the removal, the continued out-of-home placement, nor the adoption was in the best interest of the children," and that CPS had provided the court "with lies" and had "fail[ed] to include required information." At an initial hearing on the motion to set aside, ADES orally requested that the motion be dismissed. The court ordered ADES to file a written motion to dismiss and later set an evidentiary hearing and ordered the parties to exchange discovery.

¶ 7 After receiving Grandmother's disclosures, ADES filed a Renewed Objection to Motion to Set Aside Adoption and Request to Vacate Evidentiary Hearing. On the day set for the evidentiary hearing, the court first heard oral argument on ADES's motion. The court granted the motion, reasoning that Grandmother's disclosure statements made clear she was challenging the dependency and termination proceedings rather than the adoption.

¶ 8 Grandmother timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 8-235 (2012).2

DISCUSSION

¶ 9 On appeal, Grandmother argues the superior court erred by failing to conduct an evidentiary hearing on her Motion to Set Aside Adoption. "We will not disturb the juvenile court's order in an adoption proceeding absent an abuse of discretion." Marco C. v. Sean C., 218 Ariz. 216, 218, ¶ 4, 181 P.3d 1137, 1139 (App. 2008); see also In re Anonymous, 4 Ariz.App. 588, 589, 422 P.2d 419, 420 (1967). We review de novo any issues of law, including the interpretation of a statute. Kimu P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 39, 43, ¶ 13, 178 P.3d 511, 515 (App. 2008).

¶ 10 Arizona Rule of Procedure for the Juvenile Court 85(A) states, "A person seeking to set aside a final order of adoption shall file a motion to set aside the adoption with the clerk of the court. The motion shall allege grounds only as permitted by [Arizona] Rule [of Civil Procedure] 60(c) . . . ." As relevant to Grandmother's motion, Arizona Rule of Civil Procedure 60(c) permits the court to set aside a judgment upon a showing of newly discovered evidence or fraud, misrepresentation or other misconduct of an adverse party; that the judgment is void; or any other reason justifying relief. Ariz. R. Civ. P. 60(c)(2)-(4), (6).

¶ 11 Under Rule 85, the superior court sets an initial hearing within ten days of the filing of a motion to set aside an adoption, at which, according to the Rule, "the court shall set an evidentiary hearing within forty-five (45) days." Ariz. R.P. Juv. Ct. 85(C). Grandmother argues the superior court erred by dismissing her motion before holding the evidentiary hearing referenced in the statute.

¶ 12 The superior court did not err. As the court concluded, Grandmother's motion and her disclosure statements revealed that she was not challenging the adoption itself, but instead meant to challenge the dependency and termination proceedings. The superior court's questioning of Grandmother confirmed its conclusion. Grandmother's motion was not based on any facts she had discovered about the adoptive parents or any wrongful conduct by them. Instead, her sole complaint was that CPS had improperly removed the children from her in the first place and acted improperly in investigating her as a potential placement for the children.

¶ 13 Rule 85 is not a means by which to challenge a judgment terminating a parent's rights to a child. By the time the court ruled on Grandmother's motion, the termination order had become final. Because the only grounds Grandmother asserted to set aside the adoption concerned not the adoption but the court's prior judgment of termination, the superior court acted within its discretion in dismissing her motion and vacating the evidentiary hearing.

CONCLUSION

¶ 14 For the foregoing reasons, we affirm the superior court's judgment.3

DONN KESSLER, Judge, MICHAEL J. BROWN, Judge, concurring.