Angel B. v. Vanessa N J..B.

• Decision Date: 21 January 2014
• Docket Number: No. 1 CA–JV 13–0063.,1 CA–JV 13–0063.
• Citation: 234 Ariz. 69,678 Ariz. Adv. Rep. 20,316 P.3d 1257
• Parties: ANGEL B., Appellant, v. VANESSA J., N.B., Appellees.
• Court: Arizona Court of Appeals

234 Ariz. 69

316 P.3d 1257

678 Ariz. Adv. Rep. 20

ANGEL B., Appellant,

v.VANESSA J., N.B., Appellees.

No. 1 CA–JV 13–0063.

Court of Appeals of Arizona, Division 1.

Jan. 21, 2014.

Robert D. Rosanelli, Phoenix, Counsel for Appellant.

Vanessa J., Phoenix, Appellee In Propria Persona.

Judge SAMUEL A. THUMMA delivered the opinion of the Court, in which Presiding Judge JON W. THOMPSON and Judge KENT E. CATTANI joined.

OPINION

THUMMA, Judge.

¶ 1 In this private severance case, Father Angel B. timely appeals from the Maricopa County Superior Court's order granting Mother Vanessa J.'s petition to terminate his parental rights to their child N.B. Noting Mother and Father were divorced in California after N.B.'s birth and that the California court issued child custody/parenting time orders, this court requested supplemental briefing on the application of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Having now considered those briefs, the court remands the matter to the superior court to determine whether Arizona, rather than California, is the appropriate jurisdiction in which to address severance.

FACTS AND PROCEDURAL HISTORY

¶ 2 N.B. was born in California in June 2008 while Mother and Father were married and living there. In July 2008, the couple separated and, later that year, Mother apparently filed for divorce in Imperial County, California. By December 2008, Mother and Father had agreed to a parenting plan entered by the California court granting Mother custody of N.B. and Father parenting time. In August 2009, the California court issued a dissolution decree incorporating the agreed parenting plan, with custody terms later modified by that court on several occasions.

¶ 3 After the California court granted Mother's request to relocate with N.B. to Orange County, California, they moved there in mid–2010. In late–2011, Mother and N.B. moved to Arizona and have lived in Arizona ever since. Mother did not notify the California court or Father of her move to Arizona, later claiming she did not need to do so. It does not appear that Mother ever domesticated the California decree in Arizona. Father continues to live in California.

¶ 4 In April 2012, Mother filed in Arizona a petition to terminate Father's parental rights based on abandonment. There is no indication that the Arizona Department of Economic Services (ADES) was ever involved with N.B. or that N.B. was ever a dependent child and ADES is not a party to this proceeding. Following a March 2013 contested severance trial, the Maricopa County Superior Court terminated Father's parental rights. Father timely appeals from that decision.

DISCUSSION

I. Subject Matter Jurisdiction.

¶ 5 Notwithstanding their reference to the California court's custody orders, neither of the parties ever raised with the superior court the potential jurisdictional impact of the UCCJEA, codified in Arizona at Arizona Revised Statutes (A.R.S.) sections 25–1001 to –1067 (2014). ¹See alsoA.R.S. § 25–1039(D) (“Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.”). This court has an independent obligation to evaluate subject matter jurisdiction. State v. Phelps, 67 Ariz. 215, 220, 193 P.2d 921, 924–25 (1948); Kim v. Mansoori, 214 Ariz. 457, 459, ¶ 5, 153 P.3d 1086, 1088 (App.2007) (noting this court “has the duty to review its jurisdiction and, if jurisdiction is lacking, to dismiss the appeal”).

¶ 6 Whether the superior court had jurisdiction to sever Father's parental rights is a question of law this court reviews de novo. Danielson v. Evans, 201 Ariz. 401, 411, ¶ 36, 36 P.3d 749, 759 (App.2001); David S. v. Audilio S., 201 Ariz. 134, 136, ¶ 4, 32 P.3d 417, 419 (App.2001). The parties have not cited, and this court has not found, any Arizona case discussing the application of the UCCJEA to private severance proceedings. Accordingly, this court writes on a clean slate in addressing this matter of first impression in Arizona.

II. Application Of The UCCJEA.A. Overview.

¶ 7 Promulgated by the Uniform Law Commission in 1997, the UCCJEA is a uniform act adopted in all 50 states and the District of Columbia. See Legislative Fact Sheet, Uniform L. Comm'n, http:// www. uniformlaws. org/ Acts. aspx (click on “Child Custody Jurisdiction and Enforcement Act” and “Legislative Fact Sheet”) (last visited Jan. 14, 2014). Key purposes of the UCCJEA include “to create consistency in interstate child custody jurisdiction and enforcement proceedings.” Melgar v. Campo, 215 Ariz. 605, 606, ¶ 7, 161 P.3d 1269, 1270 (App.2007).

¶ 8 Based on principles of comity and the Full Faith and Credit Clause of the United States Constitution, the UCCJEA provides that the issuance of a child custody order by a court with jurisdiction is binding on other states unless and until certain changes or specified events occur. SeeA.R.S. §§ 25–1032 to –33, –1063 (“A court of this state shall afford full faith and credit to an order that is issued by another state, that is consistent with” the UCCJEA); Melgar, 215 Ariz. at 606, ¶ 8, 161 P.3d at 1270 (noting purposes of UCCJEA include avoiding “jurisdictional competition and conflict with courts of other states [, and to] ... [p]romote cooperation with the courts of other states”); see also Lofts v. Superior Court, 140 Ariz. 407, 410, 682 P.2d 412, 415 (1984) (applying Full Faith and Credit Clause to child custody decrees). This primacy concept is designed to prevent competing and conflicting custody orders by courts in different jurisdictions that would put all involved at risk of uncertainty and unilateral removals of children from or to various jurisdictions. Melgar, 215 Ariz. at 606, ¶ 8, 161 P.3d at 1270. The UCCJEA seeks to eliminate such issues by vesting exclusive, continuing jurisdiction with the state that issues the initial child custody determination, subject to statutory exceptions. See id. at 607, ¶ 10, 161 P.3d at 1271 (“The UCCJEA rejects the concurrent modification interpretation and adopts a rule of exclusive continuing jurisdiction.”).

B. Original Jurisdiction Under The UCCJEA.

¶ 9 Under the UCCJEA, original jurisdiction for the initial child custody determination is the child's home state. A.R.S. § 25–1031(A)(1); Cal. Fam.Code § 3421(a)(1) (West). An initial custody determination is “the first child custody determination concerning a particular child.” A.R.S. § 25–1002(8); Cal. Fam.Code § 3402(h) (West). “Home state” is the state in which the child lived with a parent for at least six consecutive months before the filing of a custody petition, or since birth. A.R.S. § 25–1002(7); Cal. Fam.Code § 3402(g) (West); Welch–Doden v. Roberts, 202 Ariz. 201, 208, ¶ 33, 42 P.3d 1166, 1173 (App.2002).

¶ 10 As applied, the California court had original jurisdiction to issue the initial child custody determination in December 2008. Father and Mother both lived in California at least six months prior to the initial custody petition and N.B. lived in California with at least one parent since birth. Therefore, California was N.B.'s home state and the California court had original jurisdiction for the initial child custody determination. SeeCal. Fam.Code §§ 3402, 3421 (West 2008).

C. Exclusive, Continuing Jurisdiction.

¶ 11 Once a court with original jurisdiction issues an initial child custody order, the UCCJEA gives that court exclusive, continuing jurisdiction over all future custody determinations, subject to statutory exceptions. A.R.S. § 25–1032(A); Cal. Fam.Code § 3422(a) (West). Unless a statutory exception applies, courts in other states are prohibited from modifying an initial child custody order entered by a court with exclusive, continuing jurisdiction. A.R.S. § 25–1033 (noting, as applicable here, that unless a statutory exception applies, “a court of this state shall not modify a child custody determination made by a court of another state”); Cal. Fam.Code § 3423 (West) (similar, but substituting “may” for “shall”); Melgar, 215 Ariz. at 605, 161 P.3d at 1269 (finding UCCJEA “requires that the family 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”).

D. Application Of The UCCJEA To Severance Proceedings.

¶ 12 The Arizona superior court has “exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state.” A.R.S. § 8–532. Under the UCCJEA, however, the Arizona superior court “shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter.” A.R.S. § 25–1053(A). The UCCJEA applies to any “child custody proceeding,” which includes proceedings addressing “termination of parental rights.” A.R.S. § 25–1002(4)(a); Cal. Fam.Code § 3402(d) (West).²

¶ 13 The broad exclusive jurisdictional grant in A.R.S. Title 8 over severance actions based on the child's presence in Arizona could be read to conflict with the requirement in A.R.S. Title 25 (“Marital and Domestic Relations”) of deference to a court from another state with exclusive, continuing jurisdiction. CompareA.R.S. § 8–532withA.R.S. §§ 25–1032, –1053(A). But “[I]f statutes relate to the same subject and are thus in pari materia, they should be construed together ... as though they constituted one law.” Pima County v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988).

¶ 14 Read together, these statutes indicate that the exclusive jurisdictional grant to address severance petitions based on the presence of a child in Arizona must yield to the requirement to recognize an initial child custody determination by a court in another state with original jurisdiction under the UCCJEA. Such a construction avoids what would be a significant constitutional Full...