MERYL R. v. ARIZONA DEPT. OF ECONOMIC SEC.

• Decision Date: 30 December 1999
• Docket Number: No. 1 CA-JV 99-0068.,1 CA-JV 99-0068.
• Citation: 195 Ariz. 24,992 P.2d 616
• Parties: MERYL R., Guardian Ad Litem for the Child, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Appellee.
• Court: Arizona Court of Appeals

992 P.2d 616

195 Ariz. 24

MERYL R., Guardian Ad Litem for the Child, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Appellee.

No. -0068.

Court of Appeals of Arizona, Division 1, Department A.

December 30, 1999.

Janet A. Napolitano, The Attorney General by Judy A. Sheirbon, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Gregory J. Navazo, Phoenix, Attorney for Appellant.

OPINION

FIDEL, Presiding Judge.

¶ 1 Guardian ad litem Meryl R. appeals from the juvenile court's dismissal of her dependency petition on behalf of David D., a thirteen-year-old juvenile. David currently lives by choice with his father, an Arizona resident, but the father lacks legal custody. Legal custody rests with David's mother pursuant to a dissolution decree which was entered in Missouri, her former residence. David's mother has lived in Kansas for the last several years.

¶ 2 Appellant maintains that David is dependent as to his mother on the ground that she has neglected and abused him in the past and is unfit to parent him at present. In contrast, Appellant maintains that David's father is both fit and willing to parent him, but lacks a legal basis for the physical custody that he presently exercises over the boy. Appellant therefore asserts that David is dependent as to his father because his father is legally unable to exercise care and control over David or protect him from a potentially abusive and neglectful mother. Appellant refers to David's status as a "legal dependency." She pursues this dependency as a means to achieve a placement with the father and thus a legal basis for his exercise of care and control. David's father is a party to these Arizona proceedings but his mother is not.

¶ 3 A court-ordered investigation by ADES revealed that dependency proceedings were underway in the mother's home state of Kansas as to David's half-siblings, aged six and two. The study revealed that the half-siblings had been placed outside the home, but that the mother was cooperating in rehabilitative services and working toward reunification of the family. As far as we can tell from the record, David is not a subject of the Kansas dependency proceedings.

¶ 4 The trial court dismissed the petition, stating, "if custody of this child is to be modified, it must be done either through [Domestic Relations] court or the Kansas court involved in the dependency proceedings." From the trial court's more extended comments, we gather that its ruling had two bases. In part, we understand the court to have rejected, as a matter of law, the assertion that the father's lack of legal custody amounted to a dependency within the meaning of the Arizona statute. In further part, we understand the court to have declined to exercise jurisdiction in deference to other, more suitable, courts. We decide the case on the first ground, reviewing the trial court's legal determination de novo. Arizona Dep't of Economic Security v. Ciana H., 191 Ariz. 339, 341-42, 955 P.2d 977, 979-80 (1998)

.

¶ 5 A dependent child is one "[i]n need of proper and effective parental care and control and who has ... no parent or guardian willing to exercise or capable of exercising such care and control." Ariz.Rev.Stat. Ann. ("A.R.S.") § 8-201(13)(a)(i). It was undisputed in these proceedings that David's father was willing to exercise parental care and control. It was also undisputed that he was capable of exercising parental care and control in the sense that he was fit to do so. The legal question narrows to whether his present lack of legal custody renders him incapable within the meaning of the statute. We hold that it does not.

¶ 6 Appellant argues that David's legal dependency is established by In the Matter of the Appeal in Pima County Juvenile Action No. J-77188, 139 Ariz. 389, 678 P.2d 970 (App.1983). There, a juvenile division of the superior court had dismissed a dependency petition, concluding that the petition raised visitation issues that should be handled in a pending proceeding in a domestic relations division of the court. The domestic relations division had issued orders permitting a father to have visitation with the child. The dependency petitioner, DES, asserted that the father was sexually abusive and that the visitation order rendered the mother legally incapable of protecting the child. DES offered expert opinion evidence in support of its allegation. Because the domestic relations division was on vacation, it was unavailable to conduct a hearing on the allegation of danger to the child before visitation was scheduled to proceed. Under the circumstances, this court held, DES had reasonably initiated a dependency proceeding and the juvenile court had erred in dismissing its petition.

¶ 7 There are good reasons to construe ...