Arizona Dept. of Economic Sec. v. Leonardo

• Decision Date: 03 May 2001
• Docket Number: No. 2 CA-SA 01-0023.,2 CA-SA 01-0023.
• Citation: 200 Ariz. 74,22 P.3d 513
• Parties: ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. Hon. John S. LEONARDO, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Melissa N., Mitchell N., Mark N., and Matthew N., Real Parties in Interest.
• Court: Arizona Court of Appeals

22 P.3d 513

200 Ariz. 74

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. Hon. John S. LEONARDO, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Melissa N., Mitchell N., Mark N., and Matthew N., Real Parties in Interest.

No. -0023.

Court of Appeals of Arizona, Division 2, Department B.

May 3, 2001.

Janet Napolitano, Arizona Attorney General, By Marianne I. Hardin and Michelle R. Nimmo, Tucson, for Petitioner.

Phillip H. Larriva, Tucson, for Real Party in Interest Melissa N.

Suzanne Laursen, Tucson, for Real Party in Interest Mitchell N.

Scott Schlievert, Tucson, for Real Parties in Interest Mark N. and Matthew N.

Mitchell Wendell and Dennis Eshman, Washington, D.C., for Amicus Curiae Association of Administrators of the Interstate Compact on the Placement of Children.

OPINION

ESPINOSA, Chief Judge.

¶ 1 In this special action, we are asked to decide whether the Interstate Compact on the Placement of Children (ICPC), A.R.S. §§ 8-548 through 8-548.07, applies to the court ordered placement of children with a noncustodial, out-of-state parent. Because this purely legal question is of state-wide importance, Fiveash v. Superior Court, 156 Ariz. 422, 752 P.2d 511 (App.1988), and because petitioner Arizona Department of Economic Security (ADES) has no equally plain, speedy, and adequate remedy by appeal, Rule 1, Ariz. R.P. Special Actions, 17B A.R.S., we have accepted jurisdiction of this special action.¹ Based on the ICPC regulations, the purpose and policy of the compact, and our adoption of the view held by the majority of jurisdictions that have addressed this question, we conclude that the respondent judge erred as a matter of law in finding the ICPC inapplicable. Because the respondent judge exceeded his jurisdiction by placing the real parties in interest, Mark N. and Matthew N., with their mother, real party in interest Melissa N., in violation of the ICPC, we grant relief. See Pima County Juvenile Action No. 18635 v. Fisher, 125 Ariz. 430, 610 P.2d 64 (1980)

(finding juvenile court exceeded jurisdiction by authorizing foster parents to release child to persons in another state in violation of ICPC).

FACTS AND PROCEDURAL BACKGROUND

¶ 2 The marriage of Melissa N. and real party in interest Mitchell N. was dissolved by a decree of divorce entered by the Orange County District Court of Texas on June 13, 1990. The parties are the parents of four children, including Mark, born June 22, 1985, and Matthew, born December 6, 1986.² The Texas court appointed Mitchell "Sole Managing Conservator" of the children, granting him "all the rights, privileges, duties, and powers of a parent, subject only to the rights, privileges, duties, and powers granted" to Melissa as the children's "possessory conservator." Melissa concedes that, under Texas law, this was tantamount to an award of sole custody of Mark and Matthew to Mitchell, subject to Melissa's visitation rights, which were set forth in the decree. Tex. Fam.Code Ann. §§ 101.019 (West 1996) (defining "managing conservatorship" as "relationship between a child and a managing conservator appointed by court order"); 153.251 (outlining policy and guidelines for standard possession order, intended to guide courts in ordering terms and conditions for possession of a child by a parent named possessory conservator). Shortly after the parties were divorced, Mitchell moved with the children to Arizona, where they have since resided.

¶ 3 On March 6, 2001, Child Protective Services (CPS) took Mark and Matthew into custody after it was reported that Mitchell and his new wife were neglecting and abusing them. Based on the verified allegations of ADES's dependency petition, the respondent judge found in his March 9 temporary orders that "it was reasonable to make no efforts to maintain the children in the home" and awarded ADES temporary legal and physical custody of the children. See A.R.S. § 8-822; Ariz. R.P. Juv. Ct. 48(B), 17B A.R.S.

¶ 4 In accordance with A.R.S. § 8-824 and Rule 50, Ariz. R.P. Juv. Ct., the respondent judge held a preliminary protective hearing on March 15. By that time, Melissa and Mitchell had been served with the dependency petition. All parties were represented by counsel. Mitchell did not contest ADES's continued temporary custody of the children and waived his right to a hearing. He did, however, object to placement of the children with Melissa without a home study and compliance with the ICPC. Melissa insisted that the respondent judge proceed with the hearing and testified telephonically from Texas. She objected to ADES's continued custody of the children and requested that they be placed with her in Texas. CPS's investigative caseworker also testified, reporting preliminary information he had obtained about Melissa, but stated he had not had sufficient time to complete a background check on her and that the equivalent of CPS in Texas had not responded to his specific inquiries. The caseworker did not believe it was in the children's best interests to be placed with their mother because "there are too many questions at this point to allow the boys to go there," adding, "We don't have enough information." He testified that Mark had not seen his mother in almost three years and that Matthew had seen her during the summer of 2000, apparently while visiting his paternal grandparents in Texas.

¶ 5 Melissa denied allegations that she had a substance abuse problem, denied that she had ever abused the children, and claimed she had had no involvement with CPS in Texas. She insisted she had a suitable home for the children. Mitchell and ADES objected to placing the children with Melissa until ADES could comply with the ICPC, arguing Texas would have to approve the children's placement there, after finding it "does not appear to be contrary to the interests of the child[ren]." See § 8-548, Art. III(d). At the end of the hearing, the respondent judge found that ADES had failed to establish probable cause to believe the children would be subject to abuse or neglect if they were placed with Melissa. See § 8-824(F). The judge ordered the children to be removed from their current placement in a shelter and placed with Melissa if she came for them. The court further ordered her to cooperate with a background check and home study.

¶ 6 The next day, ADES filed a motion for reconsideration and a request that the ruling on the motion be expedited, asking the respondent judge to reconsider his factual findings and, alternatively, to give ADES time to comply with the ICPC by obtaining the necessary authorization from Texas. The judge denied the motions, finding that ADES had not presented any new facts in its motion to change his finding that ADES had not established probable cause to believe that placement of the children with Melissa would clearly subject them to abuse or neglect. And, the judge concluded that, based on Article III(a), § 8-548, the ICPC is inapplicable "to return of custody to a biological parent as occurred here."

¶ 7 ADES immediately asked this court to stay the respondent judge's March 15 order. After a hearing, we granted the stay and set a briefing schedule on ADES's forthcoming petition for special action and responses by the real parties in interest. On March 23, we accepted jurisdiction of this special action, permitted further briefing, and granted the request by the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC) to either join in ADES's petition or file an amicus brief; AAICPC chose the latter and filed its brief the following week. We ordered ADES to continue its efforts to comply with the ICPC while this special action was pending, directing it to proceed as expeditiously as possible, and continued our previous order staying the respondent judge's March 15 order. Additionally, we found the respondent judge had not abused his discretion by finding that ADES had failed to establish at the preliminary protective hearing probable cause to believe that placement of the children with Melissa would clearly result in their abuse or neglect pending the hearing on the dependency petition. We now address the question whether the respondent judge exceeded his jurisdiction by finding the ICPC inapplicable to the out-of-state placement of these children with their noncustodial mother.

THE ICPC

¶ 8 An interstate compact is " `an agreement between two or more states, entered into for the purpose of dealing with a problem that transcends state lines.'" In re Adoption No. 10087, 324 Md. 394, 597 A.2d 456, 461 (1991), quoting P. Hardy, Interstate Compacts: The Ties That Bind 2 (1982). When adopted by a state, the compact is not only an agreement between that state and the other states that have adopted it, but it becomes the law of that state as well. Adoption No. 10087. The ICPC was drafted in the late 1950s to address concerns about the interstate adoption and foster care placement of children. Kimberly M. Butler, Child Welfare—Outside the Interstate Compact on the Placement of Children—Placement of a Child with a Natural Parent, 37 Vill. L.Rev. 896 (1992). Arizona adopted the ICPC in 1976. 1976 Ariz. Sess. Laws, ch. 17, § 1. All fifty states are now participating members. See Historical and Statutory Notes to § 8-548.

¶ 9 The ICPC expressly defines its purpose and policy as facilitating cooperation between states in the placement and monitoring of dependent children. § 8-548, Art. I; J.D. S. v. Franks, 182 Ariz. 81, 893 P.2d 732 (1995); In re Johnny S., 40 Cal.App.4th 969, 47 Cal.Rptr.2d 94 (App.1995); see also In re Adoption of A.M. M. and A.N.M., 24 Kan.App.2d 605, 949 P.2d 1155, 1158 (1997)

("The purpose of the ICPC is to protect the interests of children who fall within its parameters."); Butler, supra at 906 ("The [ICPC] is geared toward gathering information prior to placement in order to ensure that the sending and receiving...