Volesky v. Dep't of Child Safety (Jan. 21, 2026)

Case details
Full caption
Volesky v. Department of Child Safety
Country
United States
Jurisdiction
Arizona (AZ)
Court
Arizona Supreme Court
Decided
Jan. 21, 2026
Disposition
Affirmed
Majority
Furuya (Judge), joined by Jacobs (Presiding Judge), Morse (Judge)
Volesky v. Department of Child Safety, Not Reported in Pac. Rptr. (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 165195Only the Westlaw citation is currently available.NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDERARIZONA RULE OF THE SUPREME COURT 111(c),THIS DECISION IS NOT PRECEDENTIAL ANDMAY BE CITED ONLY AS AUTHORIZED BY RULE.Court of Appeals of Arizona, Division 1.Teresa VOLESKY, Plaintiff/Appellant,v.DEPARTMENT OF CHILDSAFETY, et al., Defendants/Appellees.No. 1 CA-CV 25-0423|Filed January 21, 2026Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Appeal from the Superior Court in Mohave County No.CV-2025-00755 The Honorable Steven C. Moss, Judge,AFFIRMEDAttorneys and Law FirmsTeresa Barbara Volesky, Bullhead City Plaintiff/AppellantArizona Attorney General's Office, Tucson By DawnRachelle Williams Counsel for Defendant/AppelleeDepartment of Child SafetyCoppersmith Brockelman PLC, Phoenix By John C. Kelly,Andrew T. Fox Counsel for Defendant/Appellee WesternArizona Regional Medical CenterJudge Brian Y. Furuya delivered the decision of the Court, inwhich Presiding Judge Andrew M. Jacobs and Judge JamesB. Morse Jr. joined.MEMORANDUM DECISIONFURUYA, Judge:*1 ¶1 Teresa Volesky (“Volesky”) appeals the superiorcourt's dismissal of her petition seeking pre-litigationdiscovery from the Department of Child Safety (“DCS”) andBullhead City Hospital Corporation d/b/a Western ArizonaRegional Medical Center (the “Hospital”). For the followingreasons, we affirm.FACTS AND PROCEDURAL HISTORY¶2 In 2007, Volesky took her child, C.H., to the Hospital withtwo fractured collar bones. Teresa V. v. Ariz. Dep't of Econ.Sec., 1 CA-JV 11-0084, 2012 WL 10928, at *1 2 (Ariz.App. Jan. 3, 2012) (mem. decision). After examining C.H.,the Hospital reported Volesky to DCS for potential abuse.DCS later removed C.H. from Volesky's care, alleging C.H.had “severe or serious non-accidental injuries that requiredimmediate medical treatment.” Id. The following year, DCSremoved another child, J.H., the day after he was born because“he was in imminent risk of harm as a result of [Volesky's]unfitness as a parent.” Id. The juvenile court terminatedVolesky's parental rights to both children in 2011. Id. at *1 5. In 2012 we affirmed the termination. Id. at *1 1.¶3 In March 2025, Volesky filed a document captioned as“Petition for Pre-suit Discovery to Compel Medical Recordsin Fraud Investigation Under Rule 27 Arizona Rules of CivilProcedure. Motion to Compel Release of Medical Recordsof Minor Child.” In her petition, Volesky asked the courtto order DCS and the Hospital to produce C.H.’s medicalrecords from 2007 because the records were “necessary for afraud investigation.” The court denied the petition because ofinsufficient information but permitted Volesky to amend thepetition.¶4 Volesky then filed an amended petition two weeks later,alleging that fraud committed by DCS and the Hospital led tothe termination of her parental rights to C.H., and as such, themedical records were necessary “to assess the full scope offraudulent activity and determine if legal action is warranted.”The court dismissed Volesky's petition with prejudice, findingVolesky “has no legal interest in [C.H.’s] records” becauseher parental rights were terminated, and any claim she mayhave related to the termination or alleged fraud is barred bythe statute of limitations. Volesky moved for reconsideration,arguing the court should vacate its judgment “based on newlydiscovered evidence, fraud, judicial error, and due processviolations.” The court denied Volesky's motion, and shetimely appealed.
Volesky v. Department of Child Safety, Not Reported in Pac. Rptr. (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2¶5 We have jurisdiction pursuant to Article 6, Section 9of the Arizona Constitution and Arizona Revised Statutes(“A.R.S.”) Section 12-2101(A)(1).DISCUSSION¶6 Volesky argues the court erred in dismissing her case withprejudice because the dismissal was “factually unsupported”and “legally and constitutionally defective.” Specifically, sheargues the court violated Arizona Rules of Civil AppellateProcedure (“ARCAP”) 10 and 11 by sealing records andfailing to provide transcripts, and that her due process rightswere violated because of eighteen years of “systemic judicialbias.” She further argues that during the 2011 terminationhearing, (1) her due process rights were violated becausethe removal of C.H. was coerced and a conspiracy involvingDCS prevented her from attending the hearing; (2) DCS usedbaseless criminal charges to support the termination groundof abandonment; (3) DCS and the Hospital submitted, and thecourt admitted, falsified medical records; and (4) the courterroneously denied placement of C.H. with a qualified bloodrelative.1I. We Decline to Apply Waiver to Volesky's Brief.*2 ¶7 DCS argues Volesky has waived her claims byfailing to comply with ARCAP 13. Under ARCAP 13, anopening brief must state “the nature of the case, the courseof the proceedings, the disposition in the court from whichthe appeal is taken ... the basis of the appellate court'sjurisdiction ... [and] must include appropriate referencesto the record.” ARCAP 13(a)(4). Additionally, argumentswithin the brief must identify “the applicable standard ofappellate review with citation to supporting legal authority.”ARCAP 13(a)(7)(B). Failure to comply with ARCAP 13generally results in waiver, see, e.g., Ramos v. Nichols, 252Ariz. 519, 522 9 (App. 2022), but we have discretion todecline to apply waiver and decide a case on its merits,see Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342(App. 1981) (“We recognize that courts prefer to decide eachcase upon its merits rather than to dismiss summarily onprocedural grounds.”); see also Clemens v. Clark, 101 Ariz.413, 414 (1966). Volesky's brief is deficient under ARCAP13, because it fails to include references to the record, thebasis for appellate jurisdiction, or the applicable standardof review with supporting legal authority. ARCAP 13(a)(4),(7). Regardless, we decline to apply waiver because Voleskyargues that termination of her parental rights as to J.H., a child,are also implicated in her suit seeking records related to C.H.See In re E.C., ___ Ariz. ___, ___, 579 P.3d 452, 456 17(App. 2025) (declining to apply waiver in a termination ofparental rights case “[b]ecause the child's best interests are atissue”).II. We Lack Jurisdiction to Review the 2011 TerminationHearing.¶8 Volesky raises several concerns with the 2011 terminationhearing and seeks “reversal and a new hearing with full dueprocess protections.” But after Volesky's parental rights toC.H. and J.H. were terminated in 2011, she appealed, andwe affirmed the termination in 2012. Teresa V., 2012 WL10928. Upon the filing of our decision, Volesky had fifteendays to file a motion for reconsideration or thirty days to filea petition for review with the supreme court. ARCAP 23(b)(2)(A)–(B). Because it has been well over thirty days, thetermination of Volesky's parental rights is final, and we do nothave jurisdiction to reconsider it. See Baker v. Bradley, 231Ariz. 475, 479 8 (App. 2013) (“Our jurisdiction is definedby statute, and we must dismiss an appeal over which we lackjurisdiction.”).III. Volesky Does Not Have a Right to C.H.’s MedicalRecords or a Cognizable Claim of Fraud.¶9 We review the court's denial of a motion forreconsideration and its ruling on a discovery issue for abuseof discretion. Worldwide Jet Charter, Inc. v. Christian, 255Ariz. 67, 70 10 (App. 2023); City of Casa Grande v. Ariz.Water Co., 199 Ariz. 547, 555 26 (App. 2001). A courtabuses its discretion if it makes “[a]n error of law” or its orderis “unsupported by the record[.]” Shinn v. Ariz. Bd. of Exec.Clemency, 254 Ariz. 255, 259 13 (2022).¶10 A person who anticipates litigation may file a Rule27 petition “to obtain [pre-litigation] discovery to preserveevidence ....” Ariz. R. Civ. P. 27(a)(1). The petition mustestablish, in part, the petitioner's interest in the expectedaction and that the expected action is “cognizable in anycourt within the United States ....” Ariz. R. Civ. P. 27(a)(1)(A)–(B). An action is cognizable if it is “[c]apable of beingjudicially tried or examined before a designated tribunal ....”Cognizable, BLACK'S LAW DICTIONARY (12th ed. 2024).¶11 In denying Volesky's petition, the court found thatVolesky “has no legal interest in [C.H.’s] records” because herparental rights were terminated, making her a “legal stranger”
Volesky v. Department of Child Safety, Not Reported in Pac. Rptr. (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3to C.H. Volesky does not challenge this specific finding inher opening brief, but merely states she “has a right to theserecords.” A court order terminating a party's parental rightsto a child “divest[s] the parent and the child of all legalrights, privileges, duties and obligations with respect to eachother[.]” A.R.S. § 8-539. This includes divesting the parentof any legal right to the child's medical records. A.R.S. §1-602(A)(6). Because the termination of Volesky's parentalrights to C.H. is final, supra 8, she has no legal right toC.H.’s medical records. Without such a right, Volesky cannotestablish an interest in any expected action based on thoserecords.*3 ¶12 The court also found the statute of limitations onVolesky's fraud claim was not tolled by fraudulent conduct, asVolesky argued. A party seeking to file a claim of fraud mustdo so within, at most, four years of accrual of the cause ofaction. See A.R.S. §§ 12-543(3) (three years for fraud), -821(one year for claims against government entities), -550 (fouryears if no other statute applies). The statute of limitations ona fraud claim is tolled “until the plaintiff possesses a minimumknowledge sufficient to recognize that a wrong occurred andcaused injury.” ELM Ret. Ctr., LP v. Callaway, 226 Ariz.287, 290 11 (App. 2010) (citation modified). But the partyalleging fraud may not “hide behind [their] ignorance whenreasonable investigation would have alerted [them] to theclaim.” Id. at 290 12.¶13 Volesky argued to the superior court that the statute oflimitations was tolled until she discovered the fraud, whichshe alleges did not occur until her twelve-year-old son'sdesire for “sibling rights” prompted her to investigate thetermination of her parental rights to C.H. The court rejectedthis argument, noting that “[i]f [Volesky] wanted to pursuethese claims, she should have acted 13–17 years ago,” ratherthan wait for a third party to “motivate[ ] her to look into it.”Volesky now argues “she could not reasonably [have] knownthe fraud and misconduct which had occurred as it was theresponsibility of qualified professionals to not engage in thistype of fraud and misconduct.” She also claims “[t]he fraudis recently becoming more discoverable,” but does not citesupporting evidence in the record.¶14 Professionals do indeed have a responsibility not toengage in fraudulent activity, but that has no bearing onVolesky's own duty to investigate the circumstances of thetermination hearing, if she had wished to do so. The Hospital'sstaff reported its concerns that C.H. had been abused in 2007.DCS removed C.H. on that basis. Volesky argued in 2011that she did not abuse C.H. and claimed to be in possessionof a medical report that established as much. See Teresa V.,2012 WL 10928, at *2 9 n.5. Thus, Volesky had enoughinformation at that time to obligate her to investigate anyalleged fraud back then. Her son's request for “sibling rights”years later does not relieve Volesky of her duty, which arosein 2011, to investigate any such claims in a reasonable andtimely manner. We thus agree with the court that the statute oflimitations was not tolled and any fraud claim Volesky mayhave had in relation to the 2011 termination hearing is barred.¶15 Because Volesky does not have a legal right to C.H.’srecords and her claim of fraud is time-barred, she cannotassert a cognizable claim sufficient to satisfy Rule 27. Thus,we discern no abuse of discretion in the court's order.CONCLUSION¶16 We affirm the court's dismissal of Volesky's petition withprejudice.All CitationsNot Reported in Pac. Rptr., 2026 WL 165195Footnotes1In support of this argument, Volesky cites “In re Dependency of D.F.- M., 236 Ariz. 33, 36 (App. 2014).”However, “In re Dependency of D.F.-M.” is the name of a Washington state juvenile case (157 Wash.App.179), while the reporter citation to “236 Ariz. 33” references an Arizona criminal case (State v. Flores).Fabricated cases, whether included by using A.I. or otherwise, are entirely inappropriate and we will notconsider them.
Volesky v. Department of Child Safety, Not Reported in Pac. Rptr. (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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