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affirming an Arizona court's exercising temporary emergency jurisdiction in the absence of a prior custody determination in the children's foreign home state
Summary of this case from Madison C. v. MarwilOpinion
No. 1 CA-JV 20-0223
04-27-2021
Maricopa County Public Advocate's Office, Mesa By Suzanne Sanchez Counsel for Appellant Sha'quia G. David W. Bell, Attorney at Law, Higley By David W. Bell Counsel for Appellant Matthew W. Arizona Attorney General's Office, Phoenix By Emily M. Stokes Counsel for Appellee Department of Child Safety
Maricopa County Public Advocate's Office, Mesa By Suzanne Sanchez Counsel for Appellant Sha'quia G.
David W. Bell, Attorney at Law, Higley By David W. Bell Counsel for Appellant Matthew W.
Arizona Attorney General's Office, Phoenix By Emily M. Stokes Counsel for Appellee Department of Child Safety
Judge D. Steven Williams delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig joined.
WILLIAMS, Judge:
¶1 Sha'quia G. ("Mother") and Matthew W. ("Father") appeal the juvenile court's order terminating their parental rights to their three children, arguing the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). Because the juvenile court had jurisdiction, the order is affirmed.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother moved from California to Arizona with the two older children in 2016. In August of that year, the Arizona Department of Child Safety ("DCS") received a report that, while in California, Mother and Father had been investigated for concerns of domestic violence and that Mother might have obtained an order of protection against Father on behalf of herself and the children. DCS filed a dependency action on September 21, 2016. The juvenile court found the two children dependent as to both Mother and Father and DCS took them into care.
¶3 In 2017, the couple's youngest child was born in Arizona. DCS removed the child from Mother's care, and the juvenile court adjudicated the youngest child dependent as well. Neither of the juvenile court's dependency orders specified the basis for its jurisdiction over the children.
¶4 In 2019, DCS moved to terminate Mother's and Father's parental rights. At trial, when asked what month in 2016 she moved to Arizona with the two older children, Mother responded: "January, February -- it was like March. Around March. The end of March." The precise date the three moved to Arizona, however, is not clear. Conflicting evidence suggests that they may have arrived in Arizona later, sometime between May and August of 2016.
¶5 Following trial, the juvenile court terminated Mother's and Father's parental rights. In its termination order, the court acknowledged that while it had not previously stated the basis for its jurisdiction in 2016, it had been exercising temporary emergency jurisdiction under the UCCJEA at the commencement of the dependency because:
(1) the children were present in Arizona and were threatened with abuse due to Mother's mental health and the parents’ domestic violence issues; (2) there were no other child-custody determinations to be enforced; and (3) no court with custody jurisdiction had commenced a child custody proceeding during this period.
¶6 The court also stated that, if Mother's testimony were true, and the family had in fact moved to Arizona in March 2016, "Arizona is the home state and would have [original] child custody jurisdiction" because the children would have resided in Arizona for at least six months before the commencement of the proceedings. See A.R.S. § 25-1002(7)(a). The court noted its termination order was final.
¶7 Mother and Father timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), and Arizona Rule of Procedure for the Juvenile Court 103(A).
DISCUSSION
¶8 Mother and Father do not challenge the merits of the juvenile court's termination ruling, but argue the court lacked jurisdiction under the UCCJEA to issue the order. Whether the juvenile court had jurisdiction to sever Mother's and Father's parental rights is a question of law this court reviews de novo. Angel B. v. Vanessa J. , 234 Ariz. 69, 71, ¶ 6, 316 P.3d 1257 (App. 2014).
¶9 "Promulgated by the Uniform Law Commission in 1997, the UCCJEA is a uniform act adopted in 49 states, including Arizona, as well as the District of Columbia, the U.S. Virgin Islands, and Guam. Compare Interests of A.A.-F. , 310 Kan. 125, 135 (2019) (noting that the UCCJEA has been adopted in 49 states), with Angel B. , 234 Ariz. at 71–72, ¶ 7 (noting, incorrectly, that the UCCJEA has been adopted in all 50 states); see also Unif. Law Comm'n, Child Custody Jurisdiction and Enforcement Act , https://www.uniformlaws.org/committees/community-home?Commun ityKey=4cc1b0be-d6c5-4bc2-b157-16b0baf2c56d (last visited July 1, 2021). Key purposes of the UCCJEA include to ‘create consistency in interstate child custody jurisdiction and enforcement proceedings.’ " Angel B. , 234 Ariz. at 71–72, ¶ 7, 316 P.3d 1257 ; see also A.R.S. § 25-1001 to -1067 (UCCJEA in Arizona). Arizona's version of the UCCJEA grants jurisdiction over child custody proceedings to the child's "home state," defined as the "state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which [the parent] is temporarily absent from that state." A.R.S. § 25-1002(7)(a). As defined by statute, "child custody proceeding" includes a proceeding for termination of parental rights. A.R.S. § 25-1002(4)(a). Even if Arizona is not a child's home state, however, Arizona may exercise temporary emergency jurisdiction if the child is "present in [Arizona] and ... is subjected to or threatened with mistreatment or abuse." A.R.S. § 25-1034(A). In such a case, the court is authorized to enter temporary custody orders to protect the child. A.R.S. § 25-1034(A) ; Melgar v. Campo , 215 Ariz. 605, 607–08, ¶ 12, 161 P.3d 1269 (App. 2007).
¶10 Mother and Father do not dispute that the juvenile court had the authority to exercise temporary emergency jurisdiction when it found the two older children dependent in October 2016 (as to Mother) and January 2017 (as to Father). Similarly, neither parent offers facts or legal authority to support any contention that the juvenile court lacked subject-matter jurisdiction over their youngest child, who was born in Arizona and immediately taken into custody by DCS. Because Arizona was the youngest child's home state when he was taken into care, see A.R.S. § 25-1002(7)(b), the juvenile court had jurisdiction under A.R.S. § 25-1031 to adjudicate that child dependent and exclusive and continuing jurisdiction under A.R.S. § 25-1032 to terminate parental rights as to that child.
¶11 The parents argue, however, that the court lacked jurisdiction to terminate their rights to the two older children when it ruled in July 2020. We hold, to the contrary, that the juvenile court properly exercised jurisdiction under the UCCJEA when it terminated Mother's and Father's parental rights.
¶12 Mother and Father contend that California was the home state of the two older children when the Arizona dependency proceedings began. Citing A.R.S. § 25-1031(A)(2), they argue the juvenile court lacked jurisdiction to rule on the severance motion absent a waiver from California. According to the parents, because California was the children's home state when the Arizona proceedings began, and because the juvenile court did not confer with a California court or obtain California's waiver of jurisdiction under A.R.S. § 25-1031(A)(2), the juvenile court lacked jurisdiction to issue the termination order. We disagree.
¶13 Assuming, arguendo , that California was the older children's home state when the proceedings began, that fact did not prevent the juvenile court's exercise of temporary emergency jurisdiction and subsequent termination of Mother's and Father's parental rights. See Arturo D. v. Dep't of Child Safety , 249 Ariz. 20, 24, ¶ 13, 464 P.3d 1286 (App. 2020) (holding that, while California was the child's home state, the Arizona court had jurisdiction to adjudicate the child dependent when there was no prior custody determination made in California). A court exercising temporary emergency jurisdiction is required to confer with the court of another state only if it is "informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under § 25-1031, 25-1032 or 25-1033." A.R.S. § 25-1034(D). Here, the juvenile court had no notice of any existing child custody determination in California, nor does the record suggest such a determination was ever made by any California court. Accordingly, because no California court had issued any prior child custody determination, the juvenile court was not required to contact California or to obtain California's waiver of jurisdiction before it exercised temporary emergency jurisdiction. See A.R.S. § 25-1034(D) ; Melgar , 215 Ariz. at 608, ¶ 12 n.6, 161 P.3d 1269 ("The court that is taking emergency jurisdiction is required, [only] upon notice of an existing custody order, to contact the issuing court to facilitate modification or retain jurisdiction.").
¶14 The absence of a prior custody order by another state distinguishes this case from the cases Mother and Father cite. In each of those cases, a court of another state had issued a prior custody determination. See Melgar , 215 Ariz. at 605, ¶ 1, 161 P.3d 1269 (finding that where a prior custody determination has been made in a court of another state, the UCCJEA "requires that the [juvenile] court must confer with the judge who issued the out-of-state custody order and/or get the out-of-state court to release its continuing jurisdiction over its custody order before modifying an out-of-state order"); Angel B. , 234 Ariz. at 71, 74, ¶¶ 2, 17, 316 P.3d 1257 (holding that, where an initial child custody determination had been made in California, Arizona lacked jurisdiction to terminate father's parental rights because "California [had not] determined that it no longer had exclusive, continuing jurisdiction ... or that California was an inconvenient forum and Arizona would be a more convenient forum"). Here, no child custody determination had been made in California, meaning there was no California court with which to confer. Consequently, the Arizona juvenile court was not required to confer with a California court or obtain California's waiver of jurisdiction before it exercised jurisdiction to terminate Mother's and Father's parental rights.
¶15 Our analysis does not end there. Section 25-1034(B) expressly allows a custody order issued by a court exercising temporary emergency jurisdiction to become "final" when (1) the order so states, and (2) the state has become the child's home state:
If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under [ A.R.S. §§ 25-1031, -1032 or -1033], a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
¶16 When interpreting a statute, our primary goal is to find and give effect to legislative intent, Ariz. Chapter of the Associated Gen. Contractors of Am. v. City of Phoenix , 247 Ariz. 45, 47, ¶ 7, 445 P.3d 2 (2019), looking to the statute's plain language as the best indicator of that intent, Glazer v. State , 244 Ariz. 612, 614, ¶ 9, 423 P.3d 993 (2018). If statutory language is unclear or ambiguous, however, we may consider secondary principles of statutory interpretation such as "historical background, effects and consequences, and spirit and purpose." Mathews ex rel. Mathews v. Life Care Ctrs. Of Am., Inc. , 217 Ariz. 606, 608, ¶ 6, 177 P.3d 867 (App. 2008). Here, portions of the Comment to the UCCJEA Temporary Emergency Jurisdiction section (on which A.R.S. § 25-1034 is based) are helpful to our analysis:
[A] custody determination made under the emergency jurisdiction provisions of this section is a temporary order. The purpose of the order is to protect the child until the State that has jurisdiction ... enters an order.
Under certain circumstances, however, subsection (b) provides that an emergency custody determination may become a final custody determination. If there is no existing custody determination, and no custody proceeding is filed in a State with jurisdiction ... an emergency custody determination made under this section becomes a final determination, if it so provides, when the State that issues the order becomes the home State of the child.
¶17 Mother argues the July 2020 termination order did not satisfy the first condition of § 25-1034(B) because the court "did not expressly provide for the possibility that it might subsequently become final." Her contention is without merit; the termination order explicitly designated the ruling as "a final order of the court."
¶18 Mother and Father also argue the second condition was not satisfied because Arizona was not the children's home state. As noted, § 25-1002(7)(a) states that a child's home state is "[t]he state in which [the] child lived with a parent or a person acting as a parent for at least six consecutive months immediately before commencement of a child custody proceeding." Mother and Father contend Arizona was not the children's home state because the children had not lived in Arizona for six consecutive months immediately before DCS filed its dependency petition in September 2016.
¶19 An "overwhelming number" of courts construing the UCCJEA (and its predecessor) have held that the six-month period triggering home-state status is measured from the specific custody proceeding at issue, not from when the child first came to the attention of the court. Barden v. Blau , 712 P.2d 481, 485 (Colo. 1986) ("the proceeding" as contained in the definition of home state "mean[s] the pending motion affecting custody or visitation"); see Terrell v. Ark. Dep't of Hum. Servs. , 2015 Ark. App. 582, 474 S.W.3d 90, 92–93 (Ark. Ct. App. 2015) (although state was not children's home state when court exercised temporary emergency jurisdiction to issue initial dependency order, by the time court ordered termination several months later, the state had become the children's home state); L.F. v. G.W.F. , 183 N.J.Super. 195, 443 A.2d 751, 755 (N.J. Super. Ct. App. Div. 1982) ("the home state of the child should be determined at the time of filing of the immediate application being considered by the court"); Campbell v. Alpers , 110 N.M. 21, 791 P.2d 472, 475 (N.M. Ct. App. 1990) ("[T]he term ‘proceeding’ as used in the [New Mexico version of the UCCJEA] has been interpreted to refer to the most recent proceeding concerning child custody, not the initial proceeding."); Paul v. Paul , 161 A.D.3d 888, 77 N.Y.S.3d 88, 92 (2018) (court became child's home state for purposes of final custody order after child had lived in the state for more than six months pursuant to temporary emergency custody order). ¶20 Applying the same principle here, that the "child custody proceeding" referenced in the definition of "home state" in A.R.S. § 25-1002(7)(a) is the motion or petition then pending before the court, the issue is not whether the older children lived in Arizona for six consecutive months before the commencement of their dependencies in 2016. Instead, the issue is whether the children lived in Arizona for at least six consecutive months preceding the termination. Given the length of the dependency period that preceded the termination proceedings in this case, we need not decide whether the required six-month period was measured from the filing of the motion for termination, the commencement of the trial, or the issuance of the court's under-advisement ruling. The record makes clear that the children had lived in Arizona for more than six consecutive months before any of those dates. Accordingly, Arizona was the children's home state when the juvenile court issued its termination order. A.R.S. § 25-1034(B) ; see Terrell , 474 S.W.3d at 92–93 (after court exercised temporary emergency jurisdiction in ordering the children dependent, it acquired home-state status during the period of the dependency, which allowed it to issue final order terminating parental rights); In re K.L.B. , 56 Kan.App.2d 429, 431 P.3d 883, 893–94 (2018) (after court initially exercised temporary emergency jurisdiction to issue custody order, its jurisdiction "ripen[ed] into home-state jurisdiction" before it entered termination order).
Similarly, a few courts have held that orders issued under temporary emergency jurisdiction may become "final" when the child remains in the state for six consecutive months after the ruling, an issue we need not address here. See In re E.D. , 812 N.W.2d 712, 721 (Iowa Ct. App. 2012) ("this provision allows an order to become a final determination, as opposed to a temporary order, although it preceded home state status so long as the state ultimately becomes the home state"); see also In re J.C.B. , 209 S.W.3d 821, 824 n.4 (Tex. App. 2006) (six-month period required for home-state jurisdiction may run "once the order is entered").
The statute requires that the child lived in the state "with a parent or a person acting as a parent." A.R.S. § 25-1002(7). After the juvenile court granted the dependencies and removed the children from the custody of their parents, DCS was "acting as a parent" for them.
CONCLUSION
¶21 Based on the record before us, the juvenile court had jurisdiction to terminate Mother's and Father's parental rights. Accordingly, the termination order is affirmed.