Holly C. v. Tohono O’odham Nation, 2 CA-JV 2018-0101

• Decision Date: 04 October 2019
• Docket Number: No. 2 CA-SA 2019-0027 (Consolidated),No. 2 CA-JV 2018-0101,2 CA-JV 2018-0101,2 CA-SA 2019-0027 (Consolidated)
• Citation: 247 Ariz. 495,452 P.3d 725
• Parties: HOLLY C., Appellant, v. TOHONO O’ODHAM NATION, Brian S. and G.C., Appellees. Elizabeth F. and Holly C., Petitioners, v. Hon. Lori B. Jones, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Department of Child Safety; Tohono O’odham Nation, Brian S. and G.C., Real Parties in Interest.
• Court: Arizona Court of Appeals

247 Ariz. 495

452 P.3d 725

HOLLY C., Appellant,

v.TOHONO O’ODHAM NATION, Brian S. and G.C., Appellees.

Elizabeth F. and Holly C., Petitioners,

v.Hon. Lori B. Jones, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andDepartment of Child Safety; Tohono O’odham Nation, Brian S. and G.C., Real Parties in Interest.

No. 2 CA-JV 2018-0101

No. 2 CA-SA 2019-0027 (Consolidated)

Court of Appeals of Arizona, Division 2.

Filed October 4, 2019

Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant and Petitioner Holly C.

Law Office of Belinda B. BreMiller, Tucson, By Belinda B. BreMiller, Counsel for Petitioner Elizabeth F.

Chad Smith, Tohono O’odham Nation Attorney General, By Jennifer L. Espino and Rosalynde Alexander, Assistant Attorneys General, Sells, Counsel for Appellee/Real Party in Interest Tohono O’odham Nation

Law Office of Jacqueline Rohr, Tucson, By Jacqueline Rohr, Counsel for Appellee Brian S.

James Fullin, Pima County Legal Defender, By Ruby J. Becker, Assistant Legal Defender, Tucson, Counsel for Real Party in Interest Brian S.

Pima County Office of Children’s Counsel, By Sybil Clarke, Tucson, Counsel for Minor

Presiding Judge Eppich authored the opinion of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

EPPICH, Presiding Judge:

¶1 In these consolidated appellate proceedings, we consider, as a matter of first impression, jurisdictional questions involving the interplay of Arizona’s child safety statutes, title 8, A.R.S.; the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 – 1963 ; and the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), A.R.S. §§ 25-1001 to 25-1067, as applied to private dependency proceedings in which Elizabeth F. sought custody of her seven-year-old grandson G.C. Because Holly and Elizabeth continue to challenge the jurisdiction of the Tohono O’odham Nation (the "Nation") to issue legal-decision-making and parenting-time orders in separate domestic relations proceedings pending in the Nation’s court since 2017, issues of comity between separate sovereigns may also be implicated.

¶2 As addressed below, we let stand the respondent judge’s decision declining to order G.C.’s emergency removal from the home of his paternal great aunt, Mary S. On the limited record before us, however, the evidence and analysis is insufficient to support the respondent’s dismissal of the dependency on jurisdictional grounds. We therefore vacate the dismissal in the 2019 dependency proceeding and remand the case for further proceedings.¹

Consolidation

¶3 In No. 2 CA-JV 2018-0101, Holly C. appealed from the juvenile court’s dismissal of the dependency petition her mother, Elizabeth, had filed in March 2018. This court dismissed the appeal for lack of jurisdiction, concluding that Holly, a respondent in a dependency proceeding against her, was not "aggrieved" by its dismissal, as required for an appeal under A.R.S. § 8-235(A).² Our supreme court vacated that decision, concluded Holly was entitled to an appeal, and remanded the case to this court for reinstatement and "disposition ... on the merits." Holly C. v. Tohono O’odham Nation , No. CV-19-0023-PR (Ariz. May 28, 2019) (order). Pursuant to that order, the appeal in No. 2 CA-JV 2018-0101 has been reinstated.

¶4 Three weeks before our supreme court issued the remand order in No. 2 CA-JV 2018-0101, Elizabeth and Holly filed the instant petition for special-action relief, No. 2 CA-SA 2019-0027, in which they contend the respondent judge abused her discretion by refusing to exercise jurisdiction in the second dependency proceeding, which commenced when Elizabeth filed her March 2019 petition. In that dependency petition, Elizabeth raised some of the same arguments she had raised in her 2018 dependency proceeding, but she also argued that changed circumstances warranted the exercise of "emergency jurisdiction" under ICWA and the UCCJEA.

¶5 This court consolidated these matters on its own motion. Both cases involve the respondent judge’s rulings dismissing the dependency proceedings on jurisdictional grounds. Elizabeth and Holly have also filed notices of appeal from the April 2019 dismissal of the second dependency proceeding, but the remedy by appeal is not equally "speedy," as briefing is not yet complete. Ariz. R. P. Spec. Act. 1(a) ("special action ... not ... available where there is an equally plain, speedy, and adequate remedy by appeal"). In addition, the special action raises legal issues related to the manner in which jurisdiction is to be determined in these circumstances, a matter of statewide importance that relates to child welfare. See Monique B. v. Duncan , 245 Ariz. 371, ¶¶ 9-10, 429 P.3d 1165, 1168 (App. 2018) (accepting special-action jurisdiction "[b]ecause the petition presents a legal issue of first impression in applying the UCCJEA [to title 8 proceedings], is likely to recur and involves the welfare of a child"). In our discretion, we accept special-action jurisdiction. See id.

Factual and Procedural Background

¶6 The following facts are undisputed. As an enrolled member of the Nation, Brian sought tribal enrollment for G.C., which was approved on June 6, 2016. On December 9, 2016, the Arizona Department of Economic Security ("ADES") filed a "Petition to Establish Child Support (Post Paternity)" in Pima County Superior Court ("Child Support Proceeding"). On May 1, 2017, that trial court entered a judgment establishing Brian’s child support obligations. The form of order specified paternity had previously been established by his filing a voluntary acknowledgment of paternity with the ADES. See A.R.S. § 25-812(D) ; cf. Michael J., Jr. v. Michael J., Sr. , 198 Ariz. 154, ¶ 12, 7 P.3d 960, 962–63 (App. 2000) (ICWA only "requires that a putative Indian father acknowledge or establish paternity") (citing Coconino Cty. Juv. Action No. J-10175 , 153 Ariz. 346, 350, 736 P.2d 829, 833 (App. 1987) and noting that court "applied ICWA despite the lack of a formal paternity proceeding, where the putative father acknowledged paternity and enrolled the child in his tribe"). On a portion of the form titled "[o]ther findings and orders," the court noted, "There is a parenting time order from [the Tohono O’odham] tribal court."

¶7 That court may have been referring to a custody action Brian had filed on February 22, 2017, in the Judicial Court of the Nation ("Parenting-Time Proceeding"). Holly does not dispute that she appeared in that proceeding and responded to Brian’s petition without challenging the Nation’s jurisdiction.³ On October 18, 2017, apparently pursuant to a stipulation filed by Brian and Holly, the Nation’s court awarded Brian sole legal decision-making authority and primary parenting time for G.C., with review hearings scheduled to consider whether Holly "should be awarded supervised parenting time given the concerns over her mental state and ability to parent" G.C.⁴ On February 20, 2018, ADES filed a motion in the Child Support Proceeding to terminate Brian’s child support obligations, based on his having had physical custody of G.C. after September 2017. The trial court granted that motion on April 2, 2018.

Dismissal of the First Dependency Proceeding (No. 2 CA-JV 2018-0101)

¶8 On March 16, 2018, while the motion to terminate support was pending, Elizabeth filed a dependency petition in Pima County Superior Court alleging Brian had neglected G.C. by failing to maintain suitable living conditions and was unable to parent G.C. due to alcohol and marijuana use. She also alleged that he had "a history of aggravated assault" and had "engaged in serious domestic violence with [Holly] between 2010 and 2018." Elizabeth sought custody of G.C., asserting in an affidavit that she had "lived with" and "supported" G.C. from his birth until Brian was awarded physical custody in the Parenting-Time Proceeding and that Holly "has a history of mental health issues that make it difficult for her to parent right now" and, additionally, was on felony probation.

¶9 In temporary orders entered pursuant to A.R.S. § 8-841(F),⁵ the juvenile court ordered the Department of Child Safety (DCS) to conduct an investigation, including "a safety check of the child[ ]’s home," but it declined Elizabeth’s request that she be awarded temporary custody. An initial dependency hearing was scheduled for April 6, 2018.

¶10 Two days before that hearing, on April 4, 2018, the Nation’s court held a custody review hearing and was informed that Elizabeth had filed the dependency petition in Pima County. That court found the parties had acknowledged its subject matter and personal jurisdiction when they stipulated to Brian’s having sole legal-decision-making authority, and it further found it "continues to have jurisdiction over the subject minor child, as the child is a registered member of the Tohono O’odham Nation." The Nation’s court reaffirmed supervised visitation guidelines previously entered for Holly, ordered that DCS records be provided for an in-chambers review, and scheduled an evidentiary hearing for June 27, 2018.

¶11 On April 6, 2018, at the initial dependency hearing in Pima County Juvenile Court, Brian entered a special appearance for the purpose of challenging the court’s jurisdiction and filed a motion to dismiss the dependency proceeding on that ground. In it, he argued the Nation had continuing, exclusive jurisdiction over G.C.’s custody pursuant to both the UCCJEA and ICWA.

¶12 The juvenile court scheduled briefing on Brian’s motion to dismiss and continued the hearing until May 15, 2018, stating it did not believe an evidentiary hearing would be needed. DCS, which was not a party but had submitted a court-ordered investigation report, asked that it be excused from further proceedings, advising the court, "Our report documents that we do not believe that a dependency exists at this time." After confirming that none of ...