Madison C. v. Hon. marwil/dcs ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MADISON C., Petitioner,
v.
THE HONORABLE SUZANNE MARWIL, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,
and
ARIZONA DEPARTMENT OF CHILD SAFETY, Real Party in Interest.
No. 1 CA-SA 22-0202
FILED 5-11-2023
Appeal from the Superior Court in Maricopa County
No. JD42176
The Honorable Suzanne Marwil, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Maricopa County Public Advocate, Phoenix
By Natalie Jones
Counsel for Petitioner
Arizona Attorney General’s Office, Tucson
By Autumn L. Spritzer
Co-Counsel for Real Party in Interest
MADISON C. v. HON. MARWIL/DCS
Opinion of the Court
The Huff Law Firm, Tucson
By Daniel R. Huff & Laura J. Huff
Co-Counsel for Real Party in Interest
OPINION
Judge Angela K. Paton delivered the opinion of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.
P A T O N, Judge:
¶1 Madison C. (“Mother”) filed this special action challenging
the superior court’s exercise of temporary emergency jurisdiction and
temporary custody over her child (“the Child”) under Arizona’s enactment
of the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”). See A.R.S. §§ 25-1001 to -1067. In this Opinion, we clarify the
UCCJEA’s requirement that a party seeking to invoke the superior court’s
temporary emergency jurisdiction must prove that a child is being
subjected to or threatened with mistreatment or abuse. Because the
Arizona Department of Child Safety (“DCS”) presented insufficient
evidence that the Child was “subjected to or threatened with mistreatment
or abuse” by Mother, see A.R.S. § 25-1034(A), to support the court’s exercise
of temporary emergency jurisdiction, we accept special action jurisdiction
and grant relief. We vacate the court’s minute entry exercising temporary
emergency jurisdiction.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and the Child are Arkansas residents. In late July
2022, Mother sent the Child to stay with Child’s maternal grandmother
(“Grandmother”) in Arizona, intending to join her shortly thereafter.
¶3 On August 10, the Arkansas Department of Health and
Human Services (“ADHHS”) received a report alleging that Mother abused
drugs, her home was unsafe for the Child, and the Child had inadequate
food and was being educationally neglected. That same day, an ADHHS
investigator visited Mother. Mother lied about who she was and denied
the investigator access to her property. About three weeks later, an
Arkansas court granted ADHHS’s request for an order permitting the
agency to access Mother’s property.
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MADISON C. v. HON. MARWIL/DCS
Opinion of the Court
¶4 When the ADHHS investigator and police officers returned to
the property two days later and presented Mother with the court order,
Mother cooperated. ADHHS asked Mother to provide a urine sample—
even though not required by the court order. Mother tried but was unable
to produce one. She offered to go to another testing location to provide a
urine sample but ADHHS—per department policy—declined to facilitate
another test.
¶5 Mother told ADHHS during the visit that the Child was with
Grandmother in Arizona and ADHHS asked DCS to conduct a courtesy
wellness check on the Child. DCS did so that same day, and, although
Grandmother did not permit DCS to enter the home, DCS saw the Child,
who appeared to be safe. DCS informed ADHHS that there were no
concerns about the Child’s safety.
¶6 Meanwhile, in Arkansas, the investigator examined Mother’s
home and found adequate housing and food and no evidence of drug use.
Consequently, ADHHS closed the investigation, and found the report of
abuse or neglect unsubstantiated.
¶7 One week later, the Child, Grandmother, and a third-party
driver were involved in a car accident in Arizona. Police found what they
characterized as a “meth pipe” in Grandmother’s jacket, and “four bags, a
little bit bigger than quarter-dollar size,” containing methamphetamine in
the car. Based on the drugs found in the car and Grandmother’s
hospitalization following the accident, DCS took the Child into custody.
The court granted DCS’s request for temporary custody of the Child the
next day, based on allegations that Mother abused substances and failed to
properly care for the Child by leaving the Child in Grandmother’s care.
¶8 Also on the next day, DCS called Mother while she was
traveling to Arizona. When Mother arrived in Arizona, DCS asked her to
complete a urinalysis and hair follicle test. The drug testing provider
(“PSI”) returned documentation indicating Mother was unable to produce
a urine sample, and on the advice of her attorney, Mother declined a hair
follicle test. DCS filed a preliminary report with the court, alleging that
Mother was “very shakey [sic] and fidgety” and “had scabs and sores on
her legs.”
¶9 The superior court held an evidentiary hearing in late
September regarding temporary custody and whether to exercise
temporary emergency jurisdiction pursuant to Section 25-1034(A), given
that the Child had not been in Arizona for six consecutive months.
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MADISON C. v. HON. MARWIL/DCS
Opinion of the Court
Mother’s counsel and the Child’s counsel objected to the court’s proposed
exercise of jurisdiction.
¶10 The court heard testimony from the ADHHS and DCS
investigators. The DCS investigator admitted that, as of the date of the
hearing, DCS’s only concern “[was] the unknown of substance abuse[.]”
The DCS investigator testified that Mother appeared surprised when
informed of evidence of Grandmother’s possession of drug paraphernalia
and the methamphetamine found in the car.
¶11 After the presentation of evidence, Mother moved for
judgment as a matter of law, arguing insufficient evidence supported a
finding that she either abused substances or knew that Grandmother was
an unsafe caregiver. She argued that the court’s exercise of jurisdiction was
inappropriate because the Child was not at immediate risk of abuse or
mistreatment if returned to her care. The Child’s counsel joined in Mother’s
motion.
¶12 The court found it had temporary emergency jurisdiction
over the Child and probable cause that temporary custody of the Child
“remain[ed] necessary to prevent the Child from being subject to further
abuse or neglect, such as being exposed to methamphetamines or under the
care of a substance exposed caregiver, whether that be either her parents or
[Grandmother].” The court determined it had “jurisdiction to order that
Mother undergo a drug test so we can know whether there’s an ongoing
concern over drugs for Mother.”
¶13 This timely special action petition by Mother followed. After
Mother filed this petition, she submitted a negative urinalysis, and the
superior court dismissed the temporary custody order at the State’s request
at a hearing on October 31.
DISCUSSION
I. We accept special action jurisdiction despite the dismissal of
the temporary custody order.
¶14 The decision to accept or deny special action jurisdiction is
discretionary. See Ariz. R.P. Spec. Act. 1(a) (special action jurisdiction is
appropriate when a party has no “equally plain, speedy, and adequate
remedy by appeal”); Ariz. R.P. Spec. Act. 3(b), (c) (providing for special
action jurisdiction when a respondent party “has proceeded . . . without or
in excess of jurisdiction or legal authority” or has made “a determination
[that is] . . . an abuse of discretion”).
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MADISON C. v. HON. MARWIL/DCS
Opinion of the Court
¶15 This court may accept jurisdiction when the matter involves a
purely legal question of first impression, is of statewide importance, and is
likely to recur. See State ex rel. Adel v. Covil, 252 Ariz. 40, 41, ¶ 2 (App. 2021).
If the matter “can be resolved on legal principles,” this militates in favor of
accepting jurisdiction. Ariz. Dep’t of Econ. Sec. v. Super. Ct., 171 Ariz. 688,
690 (App. 1992).
¶16 After filing her special action petition, Mother submitted a
negative urinalysis. At the State’s request, the superior court dismissed the
temporary custody order, returning the Child to Mother’s care. The State
now argues we should dismiss this special action as moot. While we
ordinarily decline to review a question when its resolution “will have no
effect on the parties,” this is a prudential concern rather than a jurisdictional
bar. Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5 (App. 2012).
¶17 Whether a superior court errs by exercising temporary
emergency jurisdiction over a child is an issue capable of repetition yet
likely to evade appellate review, meaning special action jurisdiction is
proper here. Id. at 617, ¶ 7. Specifically, in this case, the short timeline from
the initial investigation to dismissal described above suggests that a
temporary exercise of this type will likely evade appellate review in the
ordinary course. Consequently, despite the dismissal of the underlying
dependency action, we accept special action jurisdiction to address an issue
of statewide importance: the findings necessary to establish temporary
emergency jurisdiction and award temporary custody of a child under the
UCCJEA. See A.R.S. § 25-1034(A).
II. The superior court must apply Section 25-1034(A) when the
Child’s home state is not Arizona, even in the absence of
parallel court proceedings.
¶18 We review the superior court’s exercise of jurisdiction and its
interpretation of relevant statutes de novo. Stapert v. Ariz. Bd. of Psych.
Exam’rs, 210 Ariz. 177, 179, ¶ 7 (App. 2005). Jurisdiction is conferred
directly by the Arizona Constitution or by statute. See generally Ariz. Const.
art. 6, § 14; Schoenberger v. Bd. of Adjustment of City of Phx., 124 Ariz. 528, 530
(1980).
¶19 The UCCJEA is the requisite jurisdictional basis for making
an initial custody determination. See A.R.S. §§ 25-1002(3), 25-1031(A), (B).
While home state jurisdiction is the typical ground for jurisdiction, see
Section 25-1031(A)(1), (2)-(4), temporary emergency jurisdiction may be
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MADISON C. v. HON. MARWIL/DCS
Opinion of the Court
appropriate where necessary to protect a child in exceptional, enumerated
circumstances. A.R.S. § 25-1034.
¶20 Section 25-1034(A) provides the basis for jurisdiction over a
child whose home state is not Arizona in cases where “the child is present
in this state and the child has been abandoned or it is necessary in an
emergency to protect the child because the child . . . is subjected to or
threatened with mistreatment or abuse.” The UCCJEA and the
jurisdictional prerequisites under Section 25-1034(A) apply even absent a
court proceeding or prior custody determination in another state. See
Sha’quia G. v. Dep’t of Child Safety, 251 Ariz. 212, 215, ¶ 13 (App. 2021)
(affirming an Arizona court’s exercising temporary emergency jurisdiction
in the absence of a prior custody determination in the children’s foreign
home state); A.R.S. § 25-1034(B), (D) (permitting the exercise of temporary
emergency jurisdiction regardless of the status of proceedings or prior
custody determinations in other states).
¶21 Both the requirements to confer with another court and
requirements to exercise jurisdiction are mandatory where the statute so
requires. See Sha’quia G., 251 Ariz. at 215, ¶¶ 13-14. When Arizona is not
the child’s home state, a court may “make an initial child custody
determination only” in circumstances specified by statute. A.R.S.
§ 25-1031(A) (emphasis added); see also A.R.S. § 25-1031(A)(2)-(4)
(providing for other circumstances short of an emergency). Section 25-1034
is an exception to this general rule, expanding jurisdiction only in specific
circumstances, see Welch-Doden v. Roberts, 202 Ariz. 201, 209-10, ¶¶ 39-40
(App. 2002) (interpreting Section 25-1031(A), such as in cases of
abandonment or when “it is necessary in an emergency to protect the
child . . . subjected to or threatened with mistreatment or abuse.” A.R.S.
§ 25-1034(A)).
¶22 But neither Section 25-1031(A) nor Section 25-1034(A) is
limited to situations where a competing court order or proceedings in
another jurisdiction exist. A court must apply these statutes in cases where
it is asked to exercise jurisdiction over a child whose home state is not
Arizona.
¶23 Neither party disputes that the Child’s home state is
Arkansas, not Arizona. Consequently, to acquire jurisdiction absent
Section 25-1031 findings, the superior court had to apply Section
25-1034(A).
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MADISON C. v. HON. MARWIL/DCS
Opinion of the Court
III. The superior court lacked reasonable evidence to support an
exercise of jurisdiction under Section 25-1034(A).
¶24 The superior court could exercise temporary emergency
jurisdiction over the Child in this case only if the facts demonstrated an
emergency in which “the child . . . is subjected to or threatened with
mistreatment or abuse.” See A.R.S. § 25-1034(A). We will affirm a superior
court’s exercise of temporary emergency jurisdiction “if reasonable
evidence and inferences” support the factual basis. See Holly C. v. Tohono
O’odham Nation, 247 Ariz. 495, 505, ¶ 26 (App. 2019). But we are mindful,
in keeping with our duty to harmonize our interpretation of uniform laws
with other jurisdictions, that exercise of temporary emergency jurisdiction
is “extraordinary” and “reserved for extraordinary circumstances.”
UCCJEA § 204 cmt. (Unif. L. Comm’n 1997) (quoting Unif. Child Custody
Jurisdiction Act § 3 cmt. (Unif. L. Comm’n 1968)).
¶25 The superior court conflated the evidentiary standard for a
dependency, which references and considers “neglect” under Section
8-201(25), with the “mistreatment or abuse” standard under Section
25-1034(A). See also UCCJEA § 204(a) (Unif. L. Comm’n 1997). As
commentary to UCCJEA Section 204 explains, the Uniform Law
Commission intentionally omitted “neglect” as a basis for exercising
temporary emergency jurisdiction. UCCJEA § 204 cmt. (Unif. L. Comm’n
1997); see also May v. Ellis, 208 Ariz. 229, 232, ¶ 12 (2004) (“[C]ommentary
to . . . a uniform act is highly persuasive.”) (quoting UNUM Life Ins. Co. of
Am., 200 Ariz. 332, 515 ¶ 25 (2001)). Arizona courts interpret uniform laws
consistently with sister jurisdictions. Canon Sch. Dist. No. 50 v. W.E.S.
Constr. Co., 180 Ariz. 148, 154 (1994). Other courts have found that an
immediate risk of harm to the child upon return to the parent is necessary
for an emergency finding, and we find their interpretations of the UCCJEA
persuasive. See e.g., Bowman v. Bowman, 811 S.E.2d 103, 106 (Ga. Ct. App.
2018) (“Generally, to exercise jurisdiction under this statute, there must be
an immediate danger of harm or abuse.”); In re Cristian I., 224 Cal. App. 4th
1088, 1097 (2014) (“An ‘emergency’ exists when there is an immediate risk
of danger to the child if he or she is returned to a parent.”).
¶26 Of course, conduct that constitutes neglect may also qualify
as mistreatment or abuse; such terms are not mutually exclusive, and the
Uniform Law Commission specifically omitted neglect due to its elastic
ability to encompass more conduct than abuse and mistreatment. See
UCCJEA § 204 cmt. (Unif. L. Comm’n 1997). We do not mean to say that
any specific conduct by a parent is excluded from consideration under
Section 25-1034(A). While no statute or controlling case law defines
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MADISON C. v. HON. MARWIL/DCS
Opinion of the Court
“mistreatment,” the dictionary definition suggests that it—like abuse—is
characterized based on the direct impact of the behavior of the parent on
the child, in a manner constituting an emergency. Compare A.R.S.
§ 8-201(25) (“neglect”) with -201(2) (“abuse”) and Mistreat, Random House
Webster’s Unabridged Dictionary (2d ed. 2001) (“to treat badly or
abusively”). But while we cannot say conduct that constitutes neglect could
never rise to the level of “mistreatment or abuse,” prior conduct
constituting neglect (such as allegations of drug use standing alone) that
does not also establish an immediate risk of danger to the child upon return
to the parent does not justify exercise of temporary emergency jurisdiction.
¶27 With Mother in Arizona seeking to care for her Child, the
question for the court was whether the Child would be “subjected to or
threatened with mistreatment or abuse” upon return to Mother’s care. See
A.R.S. § 25-1034(A). DCS presented evidence supporting its suspicion of
both drug abuse by Mother and that Grandmother was potentially an
unsafe caregiver, but that evidence was insufficient to show that returning
the Child to Mother’s care posed any risk of immediate danger. Therefore,
no ongoing emergency was proven. On these facts, the superior court erred
by exercising temporary emergency jurisdiction.
CONCLUSION
¶28 We vacate the superior court’s minute entry exercising
temporary emergency jurisdiction over the Child.
AMY M. WOOD • Clerk of the Court
FILED: AA
8