Tracy D. v. Dep't of Child Safety

• Decision Date: 30 December 2021
• Docket Number: 1 CA-JV 20-0204
• Parties: TRACY D., Tarah D., Appellants, v. DEPARTMENT OF CHILD SAFETY, T.D., Appellees.
• Court: Arizona Court of Appeals

252 Ariz. 425
504 P.3d 934

TRACY D., Tarah D., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, T.D., Appellees.

No. 1 CA-JV 20-0204

Court of Appeals of Arizona, Division 1.

FILED December 30, 2021

The Stavris Law Firm PLLC, Scottsdale, By Alison Stavris, Counsel for Appellant, Tracy D.

Denise L. Carroll Esq., Scottsdale, Counsel for Appellant, Tarah D.

Arizona Attorney General's Office, Tucson, By Autumn Spritzer, Counsel for Appellee, Department of Child Safety

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

BROWN, Judge:

¶1 Tracy D. ("Father") and Tarah D. ("Mother") appeal the juvenile court's dependency and termination orders concerning their daughter, T.D. Both parents challenge the court's subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), and Mother argues the court denied her due process when it conducted the consolidated adjudication hearing by telephone. Neither parent challenges the merits of the dependency or termination orders. Because the court had default jurisdiction under the UCCJEA, and Mother was not denied due process, we affirm.

BACKGROUND

¶2 In 2012, after a contested hearing, the juvenile court terminated Mother's parental rights to two older children (involving a different father) based on chronic substance abuse. In March 2019, after receiving no contest pleas from each parent, the court terminated Mother and Father's parental

504 P.3d 937

rights to two other children, again due to chronic substance abuse. Sometime in May that year, and near the end of her pregnancy with T.D., Mother traveled to Indiana, where her parents lived. Father remained in Arizona.

¶3 Mother gave birth to T.D. in early June 2019. She returned to Arizona with T.D. about seven weeks after the child was born. After receiving a report about T.D.’s welfare, the Department of Child Safety ("DCS") investigated and took the child into temporary custody. DCS then petitioned for dependency on August 12, 2019, alleging the parents neglected T.D. because of their substance abuse and were unwilling or unable to provide effective parental care. DCS also alleged Mother gave birth to T.D. in Indiana to avoid DCS involvement.

¶4 On September 18, 2019, DCS petitioned to terminate parental rights, alleging chronic substance abuse and prior termination due to the same cause as to both parents, and neglect as to Mother. See A.R.S. § 8-533(B)(2)–(3), (10). DCS noted both parents’ long history of substance abuse and specifically alleged that Mother tested positive for methamphetamine during her pregnancy with T.D. as recently as the end of January 2019.

¶5 After scheduling delays, the court conducted a consolidated dependency/termination hearing on April 24 and 28, 2020. Because of health and safety concerns arising from the COVID-19 pandemic, the court conducted the hearing by telephone. The court later granted both petitions, finding T.D. dependent as to both parents, DCS proved all three statutory grounds for termination by clear and convincing evidence, and DCS met its burden of showing that termination of parental rights was in the child's best interests by preponderance of the evidence. Each parent timely appealed, and we have jurisdiction under A.R.S. § 8-235(A).

DISCUSSION

A. Subject Matter Jurisdiction

1. Procedural History

¶6 In its termination ruling, the juvenile court found that T.D. had "been physically present within Arizona at all relevant times ... [and] Arizona is the ‘home state’ of [T.D.] under the [UCCJEA]." On appeal, Father argued for the first time that the juvenile court lacked subject matter jurisdiction, contending T.D.’s home state was Indiana, not Arizona. Although the juvenile court had summarily concluded Arizona was T.D.’s home state, because the parties had not addressed the issue, we stayed the appeal and remanded to allow the juvenile court to conduct further proceedings to determine its jurisdiction under the UCCJEA.¹ See Bruce v. State , 126 Ariz. 271, 272, 614 P.2d 813, 814 (1980) ("Jurisdiction cannot be waived and may be raised at any stage of the proceedings.").

¶7 On remand, the juvenile court held a UCCJEA conference with a circuit court judge from Jay County, Indiana, where Mother had given birth. Mother briefly testified, though no other parties were given the opportunity to cross-examine or to present additional evidence. The juvenile court then stated that it appeared "Indiana would be the home state" because Mother intended to reside there with T.D. after birth. When asked about Indiana's "inclination in terms of exercising jurisdiction," the Indiana judge explained he was unaware of any dissolution matter or Indiana Department of Child Services ("Indiana DCS") investigation involving T.D., but he would defer to the juvenile court's decision. The juvenile court then directed that a copy of T.D.’s file be provided to the Indiana judge and canceled a previously scheduled oral argument on jurisdiction.

¶8 The Indiana judge and an attorney with Indiana DCS participated in a follow-up status conference with the juvenile court. The attorney stated he did not think Indiana had jurisdiction, as Indiana DCS had not received a report about T.D. at birth, and thus Indiana lacked a sufficient connection to the child to "open a case." The Indiana judge said he would defer to the juvenile court's ruling, but noted he could not compel Indiana

504 P.3d 938

DCS to initiate proceedings for T.D. At the same hearing, T.D.’s guardian ad litem ("GAL") explained he had been unable to attend the prior UCCJEA conference and did not receive notice that the oral argument on jurisdiction had been vacated. In response, the juvenile court scheduled an evidentiary hearing to permit the parties to present evidence and to allow the court to make factual findings affecting jurisdiction.

¶9 Following the hearing, the juvenile court found that Arizona was T.D.’s home state at the time of the "commencement of the dependency and termination proceedings," and Mother and T.D.’s presence in Indiana for a period of weeks after the child was born was merely a temporary absence from Arizona. After considering Mother's testimony and other evidence, the court reasoned in part that, other than her own assertions, there was "no indicia of Mother's intent to remain in Indiana." After receiving the court's ruling, we permitted the parties to file supplemental briefing addressing the court's UCCJEA ruling.

2. Analysis

¶10 We review de novo whether the juvenile court has subject matter jurisdiction under the UCCJEA. Gutierrez v. Fox , 242 Ariz. 259, 264, ¶ 17, 394 P.3d 1096, 1101 (App. 2017). But to the extent a court's jurisdictional decision depends on its resolution of disputed facts, we will accept the court's findings if they are supported by reasonable evidence. Holly C. v. Tohono O'odham Nation , 247 Ariz. 495, 505, ¶ 26, 452 P.3d 725, 735 (App. 2019). We also review de novo the interpretation of statutes. Nicaise v. Sundaram , 245 Ariz. 566, 567, ¶ 6, 432 P.3d 925, 926 (2019). "We interpret statutory language in view of the entire text, considering the context and related statutes on the same subject." Id . at 568, ¶ 11, 432 P.3d at 927.

¶11 "The jurisdiction and authority of the courts of this state in all proceedings and matters affecting juveniles shall be as provided by the legislature ...." Ariz. Const. art. VI, § 15. As the legislature has mandated, jurisdiction over interstate child custody proceedings is governed by the UCCJEA. See A.R.S. §§ 25-1002(4)(A), 25-1031(A)(1) ; Angel B. v. Vanessa J. , 234 Ariz. 69, 73, ¶ 14, 316 P.3d 1257, 1261 (App. 2014). Almost all states have adopted the UCCJEA, Sha'quia G. v. Dep't of Child Safety , 251 Ariz. 212, 214, ¶ 9, 488 P.3d 994, 996 (App. 2021), including Arizona, A.R.S. §§ 25-1001 to -1067, and Indiana, Ind. Code. §§ 31-21-1-1 to -7-3.

¶12 Mother and Father first argue the juvenile court proceedings should have ended after the initial UCCJEA conference when the court concluded Indiana was likely the home state. Nothing in the record, however, shows the court intended that statement as a final ruling; in fact, the court decided to conduct a full evidentiary hearing after the GAL pointed out the procedural irregularities of the earlier UCCJEA hearing. The court acted within its discretion in conducting additional proceedings and then entering a definitive jurisdictional ruling. Thus, we turn to UCCJEA's statutory framework to decide whether the court had subject matter jurisdiction to hear the dependency and termination petitions.

¶13 Except for temporary emergency jurisdiction, under the UCCJEA, an Arizona court

has jurisdiction to make an initial child custody determination only if any of the following is 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

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