Tammy P. v. Dcs, E.P. ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TAMMY P., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, E.P., Appellees.
No. 1 CA-JV 18-0456
FILED 6-27-2019
Appeal from the Superior Court in Maricopa County
No. JD531123
The Honorable Arthur T. Anderson, Judge
VACATED AND REMANDED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
TAMMY P. v. DCS, E.P.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
T H U M M A, Chief Judge:
¶1 Tammy P. (Mother) appeals from an order terminating her
parental rights to her son, E.P. The Department of Child Safety (DCS)
concedes the superior court lacked jurisdiction to enter the order under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Accordingly, the order terminating Mother’s parental rights to E.P. is
vacated and this matter is remanded for further proceedings consistent
with this decision.
¶2 In August 2017, DCS took E.P. into custody and filed a
dependency petition. Mother stated she and E.P. lived in Arkansas and
planned to return there, and DCS concedes Arkansas was E.P.’s “home
state” under the UCCJEA at that time. DCS asserted Arizona had temporary
emergency jurisdiction under the UCCJEA because E.P. was present in
Arizona and “threatened with mistreatment or abuse.” See Ariz. Rev. Stat.
(A.R.S.) § 25-1034(A) (2019). In October 2017, the superior court found E.P.
dependent as to Mother. In doing so, the court found out-of-home care was
“necessary to protect the child’s welfare,” but did not specify it was
exercising temporary emergency jurisdiction under the UCCJEA.
¶3 In April 2018, DCS moved to terminate Mother’s parental
rights. Following a termination hearing, in November 2018, the court
granted the motion without complying with the UCCJEA, either by
conferring with Arkansas or concluding child custody in Arizona had
become final. Mother timely appealed.
¶4 In February 2019, at DCS’ request, this court stayed the appeal
and remanded to the superior court “to allow that court to confer with
Arkansas – the child’s home state – as required under” the UCCJEA. At a
telephonic conference in April 2019, the Arizona and Arkansas courts
“agree[d] that it is appropriate for jurisdiction to remain in Maricopa
County, Arizona,” and this court subsequently reinstated Mother’s appeal.
DCS then filed a Notice of Concession of Error, stating the superior court
lacked jurisdiction to terminate Mother’s rights to E.P. because “the court’s
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TAMMY P. v. DCS, E.P.
Decision of the Court
emergency jurisdiction had not yet ripened into permanent jurisdiction by
the time of the September 2018 termination hearing.”
¶5 The UCCJEA grants jurisdiction over child custody
proceedings to the child’s “home state,” meaning “[t]he state in which a
child lived with a parent . . . for at least six consecutive months immediately
before the commencement of a child custody proceeding, including any
period during which that person is temporarily absent from that state.”
A.R.S. §§ 25-1031(A), -1002(7)(a). Even when Arizona is not a child’s home
state, however, an Arizona court may exercise “temporary emergency
jurisdiction if the child is present in this state” and temporary emergency
jurisdiction is necessary to protect the child from a threat of mistreatment
or abuse. A.R.S. § 25-1034(A). When no child custody proceeding has been
brought in the child’s “home state,” a child custody determination made
under temporary emergency jurisdiction “becomes a final determination, if
it so provides” and, in that case, Arizona then “becomes the home state of the
child.” A.R.S. § 25-1034(B) (emphasis added).
¶6 DCS concedes the superior court did not properly comply
with the UCCJEA:
Here, Arkansas was clearly the child’s home
state. And the Arizona juvenile court clearly
had emergency jurisdiction on the basis of the
child’s and Mother’s presence here and her
inability to care for him. But because the
juvenile court’s order adjudicating [E.P.]
dependent did not specify that it would become
final at some later date (if proceedings were not
commenced in Arkansas) under A.R.S. § 25-
1034(B), the court’s emergency jurisdiction had
not yet ripened into permanent jurisdiction by
the time of the termination hearing.
Furthermore, although Arkansas subsequently
relinquished jurisdiction to Arizona, see A.R.S. §
25-1037, at which point Arizona’s child custody
determination became final and Arizona
became [E.P.’s] home state, see A.R.S. § 25-
1034(B), this Court has held that a court’s
UCCJEA determinations cannot be applied
retroactively. See Monique B. v. Duncan, 245 Ariz.
371, [376] ¶ 17 (App. 2018).
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TAMMY P. v. DCS, E.P.
Decision of the Court
¶7 Having considered DCS’ brief and the relevant portions of the
record, this court accepts this concession of error. Accordingly, the order
terminating Mother’s rights to E.P. is vacated and this matter is remanded
for proceedings consistent with this decision. Because this court accepts
DCS’ concession of error and the superior court lacked jurisdiction to enter
the termination order, this court need not, and explicitly does not, consider
Mother’s substantive arguments on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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