Dep't of Child Safety v. Stocking-Tate

• Decision Date: 14 June 2019
• Docket Number: No. 1 CA-SA 19-0001,1 CA-SA 19-0001
• Citation: 247 Ariz. 108,446 P.3d 813
• Parties: DEPARTMENT OF CHILD SAFETY, Petitioner, v. The Honorable Kathryn STOCKING-TATE, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF YUMA, Respondent Judge, Mark R., M.S., and L.R.-S., Real Parties in Interest.
• Court: Arizona Court of Appeals

247 Ariz. 108

446 P.3d 813

DEPARTMENT OF CHILD SAFETY, Petitioner,

v. The Honorable Kathryn STOCKING-TATE, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF YUMA, Respondent Judge,Mark R., M.S., and L.R.-S., Real Parties in Interest.

No. 1 CA-SA 19-0001

Court of Appeals of Arizona, Division 1.

FILED June 14, 2019

Arizona Attorney General’s Office, Tucson, by Dawn Rachelle Williams, Counsel for Petitioner

Law Office of Denise-Avila Taylor, Yuma, by Denise Avila-Taylor, Counsel for Real Party in Interest Mark R.

Law Office of Heather C. Vinci, P.L.L.C, Yuma, by Heather C. Vinci, Counsel for Real Parties in Interest M.S. and L.R.-S.

Judge Kenton D. Jones delivered the Opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Chief Judge Samuel A. Thumma joined.

JONES, Judge:

¶1 The Department of Child Safety (DCS) seeks special action review of a juvenile court order granting a motion by Mark R. (Father) to strike an ex parte order authorizing DCS to take temporary custody of two young children. In our discretion, we accept special action jurisdiction and hold that the legal standard to be applied to a motion challenging temporary custody depends upon the timing of the motion. Because the court applied an incorrect legal standard here, we grant relief and vacate the order granting Father’s motion.

FACTS AND PROCEDURAL HISTORY

¶2 On October 26, 2018, M.S., an Indian child, was born substance-exposed. At the same time, her mother (Mother) tested positive for methamphetamine. Two days later, DCS filed an electronic application and sworn declaration in Maricopa County Superior Court seeking an ex parte order authorizing it to assume temporary custody over M.S. and his eighteen-month-old sister, L.S.-R. (collectively, the Children). See Ariz. Rev. Stat. (A.R.S.) § 8-821(B)¹ (authorizing temporary custody where, "on a sworn statement or testimony," the court finds "probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect and it is contrary to the child’s welfare to remain in the home"); Ariz. R.P. Juv. Ct. 47.3(A) ("On application under oath ..., the court will determine whether to authorize [DCS] to take temporary custody of a child.").

¶3 After considering DCS’s application and sworn declaration, the superior court found it "contrary to the [C]hildren’s welfare to remain" with Mother and Father and that "temporary custody was necessary to prevent imminent physical damage or harm to the [C]hildren." Thus, on October 28, 2018, the court found probable cause "to believe that temporary custody is clearly necessary to protect" the Children and issued an ex parte order authorizing DCS to take temporary custody of the Children.²

¶4 DCS took custody of the Children, and, on October 31, 2018, filed a verified petition in Yuma County Superior Court alleging the Children were dependent as to Mother and Father based upon substance abuse and neglect. After reviewing the petition, the juvenile court found it would be contrary to the Children’s welfare to place them with Mother and Father and issued a separate order, on November 1, authorizing DCS’s temporary custody of the Children. See A.R.S. § 8-821(B) (authorizing temporary custody where, "on a dependency petition filed ... under oath," the court finds "probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect and it is contrary to the child’s welfare to remain in the home"); Ariz. R.P. Juv. Ct. 48(B) ("Upon the filing of a [dependency] petition, the court may issue temporary orders necessary to provide for the safety and welfare of the child."). The court also scheduled and held a preliminary protective hearing (PPH) on November 6. Although Father did not appear, at the conclusion of the PPH, the court issued a third order finding temporary custody was necessary to prevent abuse and neglect and that return of the Children to Mother and Father was contrary to their best interests. See Ariz. R.P. Juv. Ct. 50(A) ("At the [PPH], the court shall determine whether continued temporary custody of the child is necessary and shall enter appropriate orders as to custody ....").

¶5 Three days later, Father personally appeared before the juvenile court at the initial dependency hearing (IDH). Although given the opportunity to do so, Father did not challenge the orders authorizing temporary custody of the Children at the IDH. At the conclusion of the hearing, the court again found "temporary custody [with DCS] is necessary to prevent abuse or neglect and return of the Children to the Parents ... is contrary to the best interest[s] of the Children" and issued a fourth order authorizing temporary custody on November 9, 2018. See Ariz. R.P. Juv. Ct. 52(D)(6) ("At the conclusion of the [IDH] the court shall ... [a]ffirm prior orders making the child a temporary ward of the court[.]").

¶6 On November 27, 2018, Father filed a motion to return the Children to his care, arguing that the October 28 application and sworn declaration in support of DCS’s request for the original ex parte temporary custody order "d[id] not set forth sufficient facts to support findings of probable cause" to remove the Children from his care. In response, DCS asked the juvenile court to set an evidentiary hearing pursuant to Arizona Rule of Procedure for the Juvenile Court (Rule) 59. See Ariz. R.P. Juv. Ct. 59(E)(1) (authorizing the juvenile court to return a child to a parent upon request made after the PPH if it finds, "by a preponderance of the evidence, that return of the child would not create a substantial risk of harm to the child’s physical, mental or emotional health or safety"). The court held oral argument on December 31 but did not apply Rule 59 or require Father to show the Children would be safe in his care; nor did the court allow DCS to present evidence regarding the need for continued out-of-home care. Instead, the court found the application and declaration in support of the ex parte order deficient and ordered the Children returned to Father. This Court stayed the return order pending resolution of the special action.

JURISDICTION

¶7 This Court has discretion to accept special action jurisdiction and will generally do so when there is no equally plain, speedy, and adequate remedy by appeal and the case presents purely legal issues, issues involving a matter of first impression, or issues of statewide importance. See Ariz. R.P. Spec. Act. 1(a) ; Glenn H. v. Hoskins , 244 Ariz. 404, 407, ¶ 7, 419 P.3d 567, 570 (App. 2018) (quoting State ex rel. Pennartz v. Olcavage , 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001) ). Invoking "[s]pecial action jurisdiction is also appropriate to prevent the superior court from acting without jurisdiction." Glenn H. , 244 Ariz. at 407, ¶ 7, 419 P.3d at 570 (citing Caruso v. Superior Court , 100 Ariz. 167, 170, 412 P.2d 463 (1966) ).

¶8 The appropriate mechanism to challenge a temporary custody order presents a novel legal question of statewide importance. Accordingly, we accept jurisdiction of DCS’s petition.

DISCUSSION

¶9 DCS argues the juvenile court failed to comply with applicable law when considering Father’s motion. To resolve this issue, we interpret and apply the statutes and procedural rules governing temporary custody orders, a task undertaken de novo . See Logan B. v. DCS , 244 Ariz. 532, 537, ¶ 12, 422 P.3d 1072, 1077 (App. 2018) (citing Premier Physicians Grp., P.L.L.C. v. Navarro , 240 Ariz. 193, 194-95, ¶ 6, 377 P.3d 988, 989-90 (2016), and Valerie M. v. Ariz. Dep’t of Econ. Sec. , 219 Ariz. 155, 161, ¶ 19, 195 P.3d 192, 198 (App. 2008) ). If the rules and statutes are clear and unambiguous, we apply the plain meaning as written. Id. (quoting State v. Burbey , 243 Ariz. 145, 147, ¶ 7, 403 P.3d 145, 147 (2017) ).

¶10 Until recently, DCS assumed temporary custody over a child using a DCS-issued "temporary custody notice" that involved no advanced court review or approval. See, e.g. , Kimu P. v. Ariz. Dep’t of Econ. Sec. , 218 Ariz. 39, 41, ¶ 5, 178 P.3d 511, 513 (App. 2008) ; Michael J., Jr. v. Michael J., Sr. , 198 Ariz. 154, 155, ¶ 4, 7 P.3d 960, 961 (App. 2000). In 2017 and 2018, in response to litigation in federal court concerning the constitutionality of removing a child from a parent’s care without judicial authorization, see Rogers v. Cty. of San Joaquin , 487 F.3d 1288, 1294-96 (9th Cir. 2007) (collecting cases), the legislature amended A.R.S. § 8-821(A) to abolish this practice, see 2018 Ariz. Sess. Laws, ch. 191, § 1 (2d Reg. Sess.); 2017 Ariz. Sess. Laws, ch. 282, § 3 (1st Reg. Sess.). Our supreme court adopted Rule 47.3, effective July 1, 2018, to implement those amendments.

¶11 Currently, absent exigent circumstances or parental consent, DCS may take temporary custody of a child only if it first obtains an ex parte order authorizing it to do so on the grounds that "probable cause exists to believe that temporary custody is clearly necessary to protect the child from suffering abuse or neglect." A.R.S. § 8-821(A)-(B) ; accord Ariz. R.P. Juv. Ct. 47.3(B). If the child is an Indian child, the superior court must also find "temporary custody is necessary to prevent imminent physical damage or harm to the child." Ariz. R.P. Juv. Ct. 47.3(B). DCS may request such an order from Maricopa County Superior Court "[o]n application under oath." Ariz. R.P. Juv. Ct. 47.3(A) ; accord A.R.S. § 8-821(B) ; see also Sup. Ct. Admin. Dir. No. 2018-06 (requiring all applications for orders authorizing a child’s removal to be filed in Maricopa County Superior Court); accord Ariz. R.P. Juv. Ct. 47.3(C)(1).

¶12 Father relies exclusively upon principles underlying the issuance of criminal warrants to justify his objection to the juvenile court’s procedural approach. But, although a criminal warrant and an ex parte temporary custody order in a dependency proceeding have some similarities, they...