Ariz. Dep't of Econ. Sec. v. Grant

• Decision Date: 15 August 2013
• Docket Number: No. 1 CA–SA 13–0147.,1 CA–SA 13–0147.
• Parties: ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. The Honorable Larry GRANT, Judge of the Superior Court of the State of Arizona, in and for the COUNTY of MARICOPA, Respondent Judge, Angie P.; Devin P.; K.P.; K.P., Real Parties in Interest.
• Court: Arizona Court of Appeals

232 Ariz. 576

307 P.3d 1003

667 Ariz. Adv. Rep. 55

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner,

v.The Honorable Larry GRANT, Judge of the Superior Court of the State of Arizona, in and for the COUNTY of MARICOPA, Respondent Judge,Angie P.; Devin P.; K.P.; K.P., Real Parties in Interest.

No. 1 CA–SA 13–0147.

Court of Appeals of Arizona,

Division 1, Department B.

Aug. 15, 2013.

Thomas C. Horne, Attorney General by Dawn R. Williams, Assistant Attorney General, Phoenix, Tucson, Attorneys for Petitioner.

Law Office of Lynn Pucino by Lynn Pucino, Phoenix, Attorney for Real Party in Interest Devin P.

Law Office of Sara J. Smith, PLLC by Sara Smith, Goodyear, Attorney for Real Party in Interest Angie P.

Law Office of Iris Garcia Maes Phoenix by Iris G. Maes, Phoenix, Guardian ad Litem for Real Parties in Interest K.P. and K.P.

OPINION

PORTLEY, Judge.

¶ 1 The Arizona Department of Economic Security (“ADES”) challenges the dismissal of a dependency petition based on lack of jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”),¹ codified in Arizona Revised Statutes (“A.R.S.”) sections 25–1001 to 25–1067 (West 2013). Because we find that the juvenile court has jurisdiction, we accept special action jurisdiction and grant relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Angie P. (“Mother”) and Devin P. (“Father”) (collectively “Parents”), Real Parties in Interest, are the parents of two children. The U.S. Air Force transferred Father from Japan to Luke Air Force Base, and he and his family relocated to Arizona. One month later, ADES received a report from military authorities in Japan that the children had allegedly been abused and neglected by their parents. After receiving the report, ADES contacted local law enforcement and local military authorities, and implemented a safety plan. Parents, however, did not comply, and ADES subsequently removed the children from Parents' care, placed them in temporary foster care, and filed a dependency petition.

¶ 3 Following the preliminary protective hearing, Parents requested a temporary custody hearing. At that hearing, the juvenile court received testimony from Parents and a Child Protective Services (“CPS”) investigator, and an ADES report and other documents were admitted as exhibits. Following a recess, the court determined it lacked jurisdiction over the case because the petition “refer[red] to events that allegedly occurred in Japan, not in the state of Arizona.” The court then dismissed the dependency action, and ADES filed this special action petition. We previously stayed the dismissal of the dependency and return of the children to Parents pending the resolution of this special action.

SPECIAL ACTION JURISDICTION

¶ 4 We have discretion to accept special action jurisdiction, Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257, 1260 (App.2010), and will accept jurisdiction if a petitioner does not have an “equally plain, speedy, and adequate remedy by appeal,” Ariz. R.P. Spec. Actions 1(a), or “if a case presents an issue of first impression and one of statewide importance that is likely to recur.” Gray v. Irwin, 195 Ariz. 273, 275, ¶ 5, 987 P.2d 759, 761 (App.1999); Ariz. Dep't of Econ. Sec. v. Leonardo, 200 Ariz. 74, 75, ¶ 1, 22 P.3d 513, 514 (App.2001). And, the issue of whether a court has jurisdiction under the UCCJEA despite the children's presence in Arizona for less than six months “is of first impression, has statewide importance, and is likely to recur.” Welch–Doden v. Roberts, 202 Ariz. 201, 204, ¶ 10, 42 P.3d 1166, 1169 (App.2002). Consequently, we exercise our discretion and accept jurisdiction.

DISCUSSION

¶ 5 ADES asserts that the juvenile court erred by finding that it did not have jurisdiction over its dependency petition. We review the “decision to dismiss a case for lack of jurisdiction” de novo. Guminski v. Ariz. State Veterinary Med. Examining Bd., 201 Ariz. 180, 182, ¶ 9, 33 P.3d 514, 516 (App.2001). We also review “this matter de novo because it involves a matter of statutory interpretation.” Melgar, 215 Ariz. at 606, ¶ 6, 161 P.3d at 1270 (citing Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 233, ¶ 8, 119 P.3d 1034, 1036 (App.2005)).

I.

¶ 6 The UCCJEA provides that a court “has jurisdiction to make an initial child custody determination” if any of the following are true:

1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

2. A court of another state does not have jurisdiction under paragraph 1 ... and both of the following are true:

(a) The child and the child's parents ... have a significant connection with this state other than mere physical presence.

(b) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.

3. All courts having jurisdiction under paragraph 1 or 2 have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 25–1037 or 25–1038.

4. A court of any other state would not have jurisdiction under the criteria specified in paragraph 1, 2 or 3.

A.R.S. § 25–1031(A) (West 2013).

¶ 7 As we stated in the dependency case of Willie G., “[a]n Arizona court has jurisdiction to make an initial child custody determination if Arizona is the home state of the child on the date of the commencement of the proceedings” or “if no other state would have jurisdiction under any alternative criteria specified in § 25–1031(A)(1), (2), or (3).” 211 Ariz. at 234, ¶ 11, 119 P.3d at 1037 (internal quotation marks omitted). Here, although the children are living in Arizona with their parents, they technically do not have a “home state” as defined by § 25–1031(A)(1). See Welch–Doden, 202 Ariz. at 204, ¶ 15, 42 P.3d at 1169 (“Section 25–1031 is the statutory starting place for determining initial jurisdiction.”). The children were born in Texas, moved to Japan with their parents in 2010, and, when the military assigned Father to Luke Air Force Base, the family moved to Arizona in March 2013. Consequently, though Texas was the children's home state while they were living in Japan pursuant to A.R.S. § 25–1013 (West 2013) (explaining that when a child's custodial parent is stationed by the military “outside of the United States and the child is relocated outside of the United States during the deployment,” the child's home state “at the time of the military deployment ... remains the home state of the child until the deployment ends ”) (emphasis added), that relationship ended once Father brought his family to Arizona.

¶ 8 Arizona was not technically the children's home state because they had not lived here for six consecutive months before ADES filed the dependency petition. SeeA.R.S. § 25–1002(7) (West 2013) (explaining that “home state” means “[t]he state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding”) (emphasis added). No other jurisdiction, however, has sought to assert jurisdiction to address custody or the allegations the military forwarded to Arizona.

¶ 9 Arizona can assert jurisdiction over the children under § 25–1031(A)(2) if it meets the statutory requirements. See Welch–Doden, 202 Ariz. at 205, ¶ 15, 42 P.3d at 1170 (stating that paragraphs (2)-(4) of A.R.S. § 25–1031(A) “provide the circumstances whereby Arizona may have jurisdiction when it does not qualify as the home state”). The statute provides that jurisdiction is appropriate if: (1) no other state has “home state” jurisdiction; (2) the children and parents “have a significant connection with this state other than mere physical presence;” and (3) “[s]ubstantial evidence is available in this state concerning the child's care, protection, training and personal relationships.” A.R.S. § 25–1031(A).

¶ 10 Parents argue that the court cannot exercise jurisdiction under the UCCJEA because their children lack the requisite “significant connection” to the state required by § 25–1031(A)(2). Specifically, they argue that no social services were being provided to them in Arizona, they had no previous contact with CPS, and the children have little academic, medical, and social history in Arizona. We disagree.

¶ 11 Although Arizona has yet to define the phrase “significant connection” in § 25–1031(A)(2), other jurisdictions have defined the term. In Rennie v. Rosenthol, 995 A.2d 1217 (Pa.Super.Ct.2010), for example, the court defined the phrase based on the dictionary meaning of the words and determined the “significant connection” meant the connection to the state must be meaningful. Id. at 1221, ¶ 13. As a result, in order to determine whether a child has a significant connection to justify the exercise of “exclusive, continuing jurisdiction,” a court “must look at the nature and quality of the child's contacts with the parent[s] living in the [state].” Id.; see also West v. West, 364 Ark. 73, 216 S.W.3d 557, 562 (2005); Fish v. Fish, 266 Ga.App. 224, 596 S.E.2d 654, 655–56 (2004). Consequently, to determine whether there is a significant connection to Arizona requires a factual analysis of the record.

¶ 12 Here, the children have significant connections to the state. First, their parents live here by virtue of Father's military assignment and will remain until such time as the military transfers Father to another duty station or his military obligation ends and the family moves to another jurisdiction. The children's paternal grandfather lives in Maricopa County and has helped care for the children. Second, Arizona has the military report of the investigation from Japan, as well as the forensic evaluation of the children that was...