Willie G. v. Arizona Dept. of Economic Sec.
| Decision Date | 29 July 2005 |
| Docket Number | No. 2 CA-JV 2004-0065.,No. 2 CA-JV 2004-0066.,2 CA-JV 2004-0065.,2 CA-JV 2004-0066. |
| Citation | 211 Ariz. 231,119 P.3d 1034 |
| Parties | WILLIE G., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Nykole G., Appellees. Bonnie H., Appellant, v. Arizona Department of Economic Security and Nykole G., Appellees. |
| Court | Arizona Supreme Court |
Joan Spurney Caplan, Tucson, for Appellant Willie G.
Jacqueline Rohr, Tucson, for Appellant Bonnie H.
Terry Goddard, Arizona Attorney General, By Dawn R. Williams, Tucson, for Appellee Arizona Department of Economic Security.
¶ 1 Appellants Willie G. and Bonnie H. appeal from the juvenile court's order of July 14, 2004, adjudicating their daughter, Nykole G., a dependent child. In these consolidated appeals, the parents collectively challenge the court's jurisdiction to entertain the dependency proceeding and the sufficiency of the evidence establishing that Nykole was dependent as to Willie. They also argue the juvenile court abused its discretion and deprived them of constitutional rights by refusing to let them appear telephonically at the contested dependency hearing and in other respects.
¶ 2 As defined in A.R.S. § 8-201(13)(a), a dependent child includes one:
(i) In need of proper and effective parental care and control and who has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control[;]
(ii) Destitute or who is not provided with the necessities of life, including adequate food, clothing, shelter or medical care[; or]
(iii) A child whose home is unfit by reason of abuse, neglect, cruelty or depravity by a parent, a guardian or any other person having custody or care of the child.
The petitioner's burden of proof in a dependency proceeding is a preponderance of the evidence. A.R.S. § 8-844(C)(1); In re Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 159, 650 P.2d 459, 461 (1982).
¶ 3 Before Nykole was born on June 5, 2001, the Arizona Department of Economic Security (ADES) and Child Protective Services (CPS) had been involved over a period of years with Bonnie and four older children not fathered by Willie. ADES had first filed dependency petitions in 1993 and 1994 as to Bonnie's daughters Alexandria and Blake, born in 1992 and 1994. Bonnie ultimately relinquished her parental rights to those two in 1996. She gave birth to a third daughter, Bridget, in 1997 and to a son, Anthony, in 1999. ADES took Bridget and Anthony into protective custody in 2000, and they were adjudicated dependent as to Bonnie in September of that year. Within days of Nykole's birth in June 2001, ADES filed a dependency petition as to her as well, and the juvenile court adjudicated Nykole dependent as to both Bonnie and Willie in September 2001.
¶ 4 The parents appealed, and this court reversed the adjudication in September 2002, finding ADES had failed to prove by a preponderance of the evidence that Nykole was in fact dependent as to either Bonnie or Willie. Bonnie H. v. Ariz. Dep't of Econ. Sec., Nos. 2 CA-JV 2001-0077, 2 CA-JV 2001-0078 (consolidated) (memorandum decision filed Sept. 13, 2002). The dependency proceeding as to Nykole was dismissed soon after our mandate issued, and Nykole was returned to her parents' custody in December 2002. In light of those and other events, severance proceedings that had been pending as to Bridget and Anthony were also dismissed. The dependency proceeding remained open as to them, but the case plan goal for Bridget and Anthony was changed from severance to family reunification.
¶ 5 Bridget and Anthony were not returned to Bonnie's physical custody until February 2004. Despite the passage of over three years since the children had been adjudicated dependent, by February 2004, Bonnie and Willie still had not achieved stable employment, steady income, or independent housing. They and Nykole had been living with Willie's parents and planning to move to Kentucky to live with an aunt once Bonnie regained custody of Bridget and Anthony. On March 26, 2004, the juvenile court expressly denied permission for Bonnie and Willie to take Bridget and Anthony from Arizona to Kentucky, stating:
At this point I don't feel comfortable saying[, "]Okay, you can move to Kentucky now.["] I want to see a period of time in which the children are placed with you and things are going well. I'm really encouraged by what I'm hearing, but I need to see a bit more time.
¶ 6 Nonetheless, sometime between April 9 and April 11, Bonnie and Willie took all three children and left Arizona for Kentucky. ADES learned that the family was in a motel in Texas and arranged for authorities there to pick up Bridget and Anthony on April 11. ADES then filed a dependency petition as to Nykole and obtained a court order authorizing CPS to take her into custody. The same authorities picked Nykole up on April 13 and placed her in a temporary foster home with Bridget and Anthony. Although all three children were returned to Arizona, Bonnie and Willie did not return but, instead, continued to Kentucky without the children.
¶ 7 In May 2004, the juvenile court denied the parents' oral request for permission to appear telephonically at the contested dependency hearing. In June, it denied a written motion to reconsider its ruling. Neither parent appeared in person at the contested dependency hearing on July 7, at which the state presented the testimony of five witnesses and other evidence, and the juvenile court found Nykole's dependency had been proved by a preponderance of the evidence as to both parents.
¶ 8 Bonnie and Willie first challenge the jurisdiction of the juvenile court to order Nykole to be taken into custody in Texas and to entertain dependency proceedings in Arizona. Bonnie argues that, because Nykole was not the subject of a pending dependency action or custody order when she left the state, Arizona lacked jurisdiction over her once she was physically outside Arizona. Both Bonnie and Willie argue that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), A.R.S. §§ 25-1001 through 25-1067, does not apply in these circumstances. Matters of statutory interpretation are questions of law, which we review de novo. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 9, 83 P.3d 43, 47 (App.2004). Our review of mixed questions of fact and law is similarly de novo. Wilmot v. Wilmot, 203 Ariz. 565, ¶ 10, 58 P.3d 507, 510 (2002).
¶ 9 Contemporaneously with its motion for an order authorizing CPS to take custody of Nykole in Texas, ADES filed a dependency petition concerning Nykole, mistakenly entitled "Third Amended Dependency Petition." Although ADES had indeed filed a previous dependency petition and two subsequent amended petitions, all three preceded our decision on appeal, which reversed the September 2001 adjudication of dependency and led in turn to the termination of that proceeding. As a result, the new petition was mistitled an "amended" petition. ADES rectified the mistake three days later by filing a "dependency petition and petition for paternity and financial responsibility."
¶ 10 Willie argues that the order authorizing ADES to take custody of Nykole was invalid because the "third amended dependency petition" on which it was based had been invalid. Although the petition was indeed mislabeled, it was replaced almost immediately by the substantively similar, and correctly titled, dependency petition filed three days later. The error in the title of the first petition was one of form, not substance, and it was promptly remedied. We decline to hold that the error in labeling the petition invalidated the juvenile court's attendant order authorizing CPS to take Nykole into custody pursuant to the general authority conferred by A.R.S. § 8-821.
¶ 11 Like Arizona, Texas also has adopted the UCCJEA, Tex. Fam.Code Ann. §§ 152.001 through 152.317, which encompasses dependency proceedings among the various "[c]hild custody proceeding[s]" to which the Act applies. A.R.S. § 25-1002(4)(a). An Arizona court "has jurisdiction to make an initial child custody determination" if Arizona "is the home state of the child on the date of the commencement of the proceeding." § 25-1031(A)(1). Pursuant to § 25-1031(A)(4), Arizona also has jurisdiction if no other state would have jurisdiction under any of the alternative criteria specified in § 25-1031(A)(1), (2), or (3).
¶ 12 Clearly, Arizona was Nykole's "home state" by virtue of her having lived here since her birth, including "at least six consecutive months immediately before the commencement" of the dependency proceeding. § 25-1002(7)(a). Notwithstanding her removal from the state only days before ADES filed the correctly titled dependency petition, Arizona remained Nykole's home state for purposes of the UCCJEA. Moreover, no other state qualified as her home state under the definitions of § 25-1002(7)(a), making Arizona's jurisdiction manifest under either § 25-1031(A)(1) or (A)(4). We thus reject the parents' contentions that the juvenile court lacked jurisdiction over this dependency proceeding.
¶ 13 Second, the parents contend the juvenile court abused its discretion by refusing to allow them to participate in the contested dependency hearing by telephone from Kentucky. We review a juvenile court's ruling on a discretionary matter for a clear abuse of the court's discretion. E.g., In re Stephanie B., 204 Ariz. 466, ¶ 8, 65 P.3d 114, 116 (App.2003) (); William Z. v. Ariz. Dep't of Econ. Sec., 192 Ariz. 385, ¶ 9, 965 P.2d 1224, 1226 (App.1998) (); In re Pima County Severance Action No. S-2248, 159 Ariz. 302, 305, 767 P.2d 25, 28 (App.1988) (...
To continue reading
Request your trial
-
Gerald M. v. Dep't of Child Safety
...of dependency, we view the evidence in the light most favorable to sustaining the juvenile court's findings." Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 21, 119 P.3d 1034, 1038 (App. 2005). But a determination of dependency may be based only on the allegations raised in a depe......
-
Terrell v. Torres
...Application of the balancing approach involves mixed questions of law and fact, which we review de novo. See Willie G. v. Ariz. Dep’t of Econ. Sec. , 211 Ariz. 231, 233, ¶ 8, 119 P.3d 1034, 1036 (App. 2005). We accept the trial court’s factual findings unless they are clearly erroneous. In ......
-
Gutierrez v. Fox
...has subject matter jurisdiction under the UCCJEA. Mangan v. Mangan , 227 Ariz. 346, 350, ¶ 16, 258 P.3d 164 (App. 2011) ; see Willie G. v. ADES, 211 Ariz. 231, 233, ¶ 8, 119 P.3d 1034 (App. 2005) (this Court reviews de novo matters of statutory interpretation and mixed questions of fact and......
-
I.L. v. Ariz. Dep't of Econ. Sec.
...have failed to show the court abused its discretion in denying their request to be substituted as petitioners. See Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 13, 119 P.3d 1034, 1037 (App. 2005) ("We review a juvenile court's ruling on a discretionary matter for a clear abuse o......