Joslin G. v. Dcs ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOSLIN G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.R., N.D., O.D., Appellees.
No. 1 CA-JV 14-0138
FILED 11-18-2014
Appeal from the Superior Court in Maricopa County
No. JD21968
The Honorable Joan Sinclair, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee Department of Child Safety
JOSLIN G. V. DCS
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Judge Kent E. Cattani joined.
K E S S L E R, Judge:
¶1 Joslin G. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to her children, arguing the court lacked
jurisdiction. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Joslin G. is the mother of T.R., born in 2007, N.D., born in 2008,
and O.D., born in 2010 (collectively “the children”). Joshua D. is the father
of N.D. and O.D. Travis R. is the father of T.R.1
¶3 In May 2012, the Arizona Department of Child Safety
(“DCS”) received a report that Mother and Joshua D. were abusing
2
substances and neglecting the children. DCS went to the family’s home and
found the children very dirty, one child with an untreated eye infection,
and another inappropriately clothed for the weather.
¶4 During the initial assessment, Mother reported she and the
children lived most of their lives in Washington, but had moved every few
months since September 2011.3 Mother admitted that she and Joshua D.
had used methamphetamine before moving to Arizona, but claimed they
had not used drugs in quite some time. Joshua D., however, passed out
during the initial assessment and needed to be transported to the hospital.
1 The fathers are not parties to this appeal.
2 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014)
(enacted), the Arizona Department of Child Safety (DCS) is substituted for
the Arizona Department of Economic Security (ADES) in this matter. See
ARCAP 27. All references to ADES will be changed to reflect the change.
3 Mother reported living in Alabama for two months, Georgia for three
months, and Alabama for a month immediately preceding their move to
Arizona in March of 2012, two months prior to the removal of the children
by DCS.
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Decision of the Court
The responding crisis team determined Joshua D. was under the influence
of an unknown narcotic. Mother also was hospitalized for being a
perceived danger to herself. DCS placed the children with Joshua D.’s
parents (“the paternal grandparents”) and granted the paternal
grandparents temporary custody of the children.4 Mother and Joshua D.
moved back to Washington in June 2012. Mother, however, returned to
Arizona in July of 2013.
¶5 Upon removal of the children in May 2012, DCS filed a
dependency petition and petition for paternity and/or child support. The
court ordered the children temporary wards of the state and to remain with
the paternal grandparents. Mother moved to dismiss the petition for lack
of jurisdiction under the Uniform Child Custody Jurisdiction Enforcement
Act (“UCCJEA”). See Ariz. Rev. Stat. (“A.R.S.”) § 25-1001 (2007). Mother
conceded Arizona likely had temporary emergency jurisdiction because the
children were present in Arizona without a parent, a legal guardian, or
anyone with proper legal authority over them, but argued that Washington
retained ongoing jurisdiction. Mother asked the court to dismiss the action
or, alternatively, to communicate with Washington courts to resolve the
jurisdictional question.
¶6 DCS opposed Mother’s motion to dismiss, arguing the
children did not have a home state under the UCCJEA because of the
family’s frequent relocations dating back to September 2011.5 As such, DCS
argued Arizona had jurisdiction under A.R.S. § 25-1031(A)(2).6 Further,
4 The paternal grandparents were identified as having a significant
relationship with all three children, including T.R., who is not their
biological grandchild.
5 For the purposes of this decision, the term “home state” is defined as the
state in which a child has lived with a parent or person acting as a parent
for at least six consecutive months prior to the commencement of a child
custody proceeding. A.R.S. § 25-1002(7)(a).
6 A.R.S. § 25-1031(A)(2) confers jurisdiction to make an initial child custody
determination to an Arizona juvenile court if no court in any other state has
jurisdiction to do so as the home state of the child or a court of the home
state has declined to exercise jurisdiction on the ground that Arizona is the
more appropriate forum. Further, A.R.S. § 25-1031(A)(2)(a)–(b) confer
jurisdiction if the child and at least one parent have a significant connection
with Arizona, beyond mere physical presence, and substantial evidence is
available in Arizona regarding the child’s care, protection, training, and
personal relationships.
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Decision of the Court
DCS maintained that Arizona had temporary emergency jurisdiction under
A.R.S. § 25-1034(A) and there were no orders entitled to enforcement nor
custody proceedings in any other state at the time of removal.
¶7 In reply, Mother argued Washington was the children’s home
state because Washington courts had issued several orders between 2007
and 2011 dealing with the best interests of the children.7 She contended
because Washington had issued these orders based on the best interests of
the children and had acknowledged Washington as the children’s home
state at the time those orders were issued, Washington was the children’s
home state.
¶8 After a pretrial conference in September 2012, during which
the juvenile court designated the case plan to be family reunification
concurrent with severance and adoption, the court issued a minute entry
informing the parties that it had spoken to a juvenile court judge in
Washington concerning the case. The judges agreed it was sensible to
return the children to Washington, given the children’s parents were
located, or were soon to be located, in Washington. The Arizona juvenile
court ordered DCS and the Arizona Attorney General’s Office to coordinate
with their counterparts in Washington to transfer the children to
Washington, but indicated it would not dismiss the case until receipt of
written verification, from the Washington counterpart of DCS, that the
children were in Washington’s custody.
¶9 However, at the time of a report and review hearing in
November 2012, the children continued to reside in Arizona. Although
counsel for DCS had contacted her counterpart in Washington, she was
informed the Washington Attorney General’s Office would not file or move
forward until they heard from the Washington counterpart of DCS. DCS
requested the Arizona juvenile court to contact a Washington judicial
7 The orders presented by Mother included: (1) a 2007 judgment and
sentencing order entered against Travis R., T.R.’s father, for misdemeanor
domestic violence against Mother, requiring Travis R. to have no contact
with Mother; (2) a 2008 judgment and order determining the parentage of
T.R.; (3) a 2008 order granting summary judgment with regards to paternity
of T.R. and child support; (4) a 2011 order of child support for the benefit of
T.R.; (5) an order of contempt against Travis R.; (6) a 2009 temporary order
of protection against Travis R., granting Mother temporary custody of T.R.;
and (7) a 2009 order of protection against Travis R., granting Mother
temporary custody of T.R. and N.D., declaring Washington the home state
of the children.
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JOSLIN G. V. DCS
Decision of the Court
officer and request that a DCS case be opened in Washington and that DCS
in Washington take custody of the children. The juvenile court agreed to
continue to attempt to contact the Washington juvenile court, noting it had
tried to contact the Washington court several times about the case but had
received no response.
¶10 At the report and review hearing in April 2013, the juvenile
court stated it had made additional efforts to work with its counterpart in
Washington, including having sent a letter stating an intent to set a formal
UCCJEA hearing, but had not received a reply from the Washington court.
Because the Washington court had failed to reply to the numerous attempts
at contact, the juvenile court ruled it would retain jurisdiction in the matter.
¶11 In August 2013, the juvenile court changed the case plan to
severance and adoption. DCS petitioned to terminate Mother’s parental
rights based on the children being in an out-of-home placement for longer
than fifteen months; on Mother not being able to remedy the circumstances
which resulted in removal; and on the substantial likelihood that Mother
would not be capable of exercising proper and effective parental care and
control in the near future.8 See A.R.S. § 8-533(B)(8)(c).
¶12 The juvenile court held a severance hearing in April 2014.
Mother did not appear except by counsel, and the court proceeded by
default because mother had waived her rights by failing to appear.
Mother’s counsel continued to object to the severance based on lack of
jurisdiction, but the court found it had jurisdiction because the children
were in Maricopa County at the time the proceedings were commenced.
See A.R.S. § 8-532(A) (2014). The court found termination of mother’s
parental rights to the children was appropriate by clear and convincing
evidence and that severance would be in the best interest and welfare of the
children by a preponderance of the evidence.
¶13 Mother filed a timely appeal, within fifteen days of the
severance order. We have jurisdiction pursuant to A.R.S. §§ 8-235(A)(2007),
8 DCS also petitioned to terminate the parental rights of Travis R., based on
his abandonment of T.R., see A.R.S. § 8-533(B)(1); and of Joshua D., based
on N.D. and O.D.’s being in an out-of-home placement for longer than
fifteen months; on Joshua D.’s inability to remedy the circumstances which
resulted in removal; and on the substantial likelihood that Joshua D. would
not be capable of exercising proper and effective parental care and control
in the near future, see A.R.S. § 8-533(B)(8)(c). The parental rights of both
Travis R. and Joshua D. were terminated on December 17, 2013.
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JOSLIN G. V. DCS
Decision of the Court
12-120.21(A)(1) (2003), 12-2101(A)(1) (Supp. 2013) and Juv. Ct. Rules of
Proc., Rule 104(A).
ISSUE AND STANDARD OF REVIEW
¶14 Mother argues on appeal the juvenile court did not properly
consider whether it had jurisdiction under the UCCJEA, given the
“possibility of a custody order in Washington.” At trial, DCS argued the
juvenile court had jurisdiction to make an initial child custody
determination under A.R.S. § 25-1031(A)(2) because there was no home
state when DCS filed the dependency petition or within six months prior to
the filing, the children and parents had a significant connection with
Arizona, and there was substantial evidence regarding the children’s
welfare in Arizona. On appeal DCS argues the juvenile court had
jurisdiction under A.R.S. § 25-1031(A)(2) or, in the alternative, A.R.S. § 25-
1031(A)(4). Further, DCS argues that the Arizona juvenile court had
jurisdiction to modify Washington’s initial child custody determination as
to T.R. under A.R.S. § 25-1033.
¶15 Subject matter jurisdiction cannot be waived or forfeited.
State v. Chacon, 221 Ariz. 523, 526, ¶ 5, 212 P.3d 861, 864 (App. 2009). An
order entered by a court lacking subject matter jurisdiction is void. Id. We
review issues of subject matter jurisdiction de novo. Angel B. v. Vanessa J.,
234 Ariz. 69, 71, ¶ 6, 316 P.3d 1257, 1259 (App. 2014); Ariz. Dep’t of Econ. Sec.
v. Grant, 232 Ariz. 576, 579, ¶ 5, 307 P.3d 1003, 1006 (App. 2013) (holding
jurisdiction over severance is a question of law and is reviewed de novo).
We review any evidence presented to the juvenile court in the light most
favorable to affirming the court’s decision. Christy C. v. Ariz. Dep’t of Econ.
Sec., 214 Ariz. 445, 449, ¶ 12, 153 P.3d 1074, 1079 (App. 2007); see also Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 13, 53 P.3d 203, 207 (App.
2002). We assume the trial court considered any admissible evidence
presented to it before making its decision, Fuentes v. Fuentes, 209 Ariz. 51,
55–56, ¶ 18, 97 P.3d 876, 880–81 (App. 2004) and will affirm the court on any
basis supported by the record. Adage Towing and Recovery, Inc. v. City of
Tucson, 187 Ariz. 396, 398, 930 P.2d 473, 475 (App. 1996).
DISCUSSION
¶16 We summarily reject Mother’s argument that the trial court
did not consider the possibility of jurisdiction under the UCCJEA. In her
motion to dismiss, Mother presented the court with evidence Washington
might have been the children’s home state for UCCJEA purposes. We
presume the court considered any evidence and arguments presented to it.
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JOSLIN G. V. DCS
Decision of the Court
Fuentes, 209 Ariz. at 55–56, ¶ 18, 97 P.3d at 880–81 (App. 2004). The court
also repeatedly contacted Washington to determine which court should
have jurisdiction, indicating that it was considering whether it had
jurisdiction under the UCCJEA.
¶17 To the extent Mother argues the evidence she presented
showed the juvenile court did not have jurisdiction under the UCCJEA, we
disagree.
I. The Arizona juvenile court had jurisdiction to issue an initial custody
determination with respect to N.D. and O.D. under A.R.S. § 25-
1031(A)(2).
¶18 Jurisdiction to issue an initial child custody determination is
conferred on the superior court by A.R.S. § 25-1031(A)(2) if another state
does not have jurisdiction under A.R.S. § 25-1031(A)(1),9 the child and at
least one parent have a significant connection to Arizona, other than mere
physical presence, and there is substantial evidence in Arizona concerning
the child’s care.
¶19 In this case, no court in any other state had jurisdiction to
make an initial child custody determination under A.R.S. § 25-1031(A)(1).
Washington could not be considered the children’s home state pursuant to
A.R.S. § 25-1031(A)(1), because, at the time of removal and the
commencement of these proceedings, the children had not been in
Washington for more than six months. Further, the children were present
in Arizona with one of their parents at the time DCS placed the children
with the paternal grandparents. The presence of the paternal grandparents
in Arizona, as well as the investigation by DCS, demonstrates not only there
was substantial evidence in Arizona concerning the children’s care,
protection, training and personal relationships, but also the children and at
least one of the children’s parents had a connection with Arizona, more
significant than mere physical presence at the time of removal.
9A.R.S. § 25-1031(A)(1) confers jurisdiction on Arizona to make an initial
custody determination if Arizona 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 [Arizona] but a parent or person acting as a parent
continues to live in [Arizona].”
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JOSLIN G. V. DCS
Decision of the Court
¶20 Moreover, the Arizona juvenile court had jurisdiction to enter
initial custody orders because none of the Washington orders proffered by
Mother can be considered initial custody orders as to N.D. and O.D. The
2007 judgment and sentence of T.R.’s father for misdemeanor domestic
violence did not confer custody of any child to either parent.10 The 2008
determination of parentage of T.R., and the order granting summary
judgment on the same issue, also did not confer custody of N.D. and O.D.
to Mother or Joshua D. Further, an order for child support is not a child
custody determination. See A.R.S. § 25-1002(3)(b). Thus, neither order for
child support was a determination of custody for any of the children. The
order of contempt against Travis R. also failed to confer custody of any of
the children in any way to either parent. Finally, while the orders of
protection issued in 2009 did provide that Washington was the home state
of the children and that Mother had temporary custody of T.R. and N.D.,
those orders expired long before the current proceedings began. Under
Washington law, the orders of protection do not extend jurisdiction under
the UCCJEA beyond the term of the order. In re Parentage, Parenting, and
Support of A.R.K.-K. v. Kelly, 174 P.3d 160, 164, ¶ 16 (Wash. Ct. App. 2007).
Therefore, the Arizona juvenile court had jurisdiction under A.R.S. § 25-
1031(A)(2).
II. The Arizona juvenile court had jurisdiction to make an initial child
custody determination with respect to N.D. and O.D. under A.R.S. §
25-1031(A)(4).
¶21 Alternatively, the juvenile court had jurisdiction to make an
initial child custody determination with respect to N.D. and O.D. under
A.R.S. § 25-1031(A)(4) because no court of any other state had jurisdiction
under the criteria specified in A.R.S. § 25-1031(A)(1)–(3).11 No other state
could be considered the home state of any of the children under A.R.S. § 25-
1031(A)(1) for the reasons stated above concerning length of time the
children were in any particular state. Further, neither the children nor
evidence concerning their care, protection, training, and personal
relationships were present in any other state as required by section 25-
1031(A)(2). Finally, since Washington did not have jurisdiction under
(A)(1) or (A)(2), subsection (A)(3) does not apply because it requires a state
10 RCW 26.27.021 states a child custody determination is a “judgment,
decree, parenting plan, or other order of a court providing for the legal
custody . . . with respect to a child.” It parallels A.R.S. § 25-1002(3)(a).
11 A.R.S. § 25-1031(A)(4) confers jurisdiction to Arizona where no other state
has jurisdiction under A.R.S. § 25-1031(A)(1)–(3).
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JOSLIN G. V. DCS
Decision of the Court
which has jurisdiction under the first two subsections to exercise such
jurisdiction to allow Arizona to determine custody.12 Therefore, the
Arizona juvenile court had jurisdiction under A.R.S. § 25-1031(A)(4).
III. The Arizona juvenile court had jurisdiction to make an initial child
custody determination with respect to N.D. and O.D. under A.R.S. §
25-1034(B).
¶22 We also conclude the juvenile court had jurisdiction to make
an initial child custody determination with respect to N.D. and O.D. under
A.R.S. § 25-1034(B).13 Section 1034(A) provides that an Arizona court has
temporary emergency jurisdiction to act when a child is present in Arizona
and there is an emergency situation requiring that child to be protected
from mistreatment or abuse. Pursuant to section 25-1034(B), if there is no
previous child custody determination “entitled to be enforced” and a child
custody proceeding has not been commenced in another state having
jurisdiction, a temporary custody determination made under A.R.S. § 25-
1034 becomes a final determination if it so provides and Arizona becomes
the home state.
¶23 Here, the children were subject to abuse or mistreatment and
there was no custody determination entitled to be enforced as to N.D. or
O.D. in Washington, or any other state, because the orders of protection had
expired. See Kelly, 174 P.3d at 164, ¶ 16 (jurisdiction conferred via
temporary order expires when that order expires). As discussed above,
none of the other orders Mother presented to the juvenile court qualified as
a child custody determination as to N.D. and O.D. and there was no
evidence any custody proceeding had been commenced in another state.
To construe expired proceedings in another state as depriving Arizona of
jurisdiction to protect children present in Arizona would have left these
children in limbo.
12 A.R.S. § 25-1031(A)(3) confers jurisdiction on Arizona where another
court having jurisdiction declines to exercise jurisdiction on the grounds
that Arizona is the more appropriate forum.
13 The State argued below that jurisdiction existed under section 25-1034(B).
While the State does not make that argument on appeal, we can affirm on
any ground raised below and supported by the record. Adage Towing &
Recovery, Inc. v. City of Tucson, 187 Ariz. 396, 398, 930 P.2d 473, 475 (App.
1996).
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Decision of the Court
IV. The Arizona juvenile court had jurisdiction to modify Washington’s
2008 child custody determination with respect to T.R. under A.R.S. §
25-1033.
¶24 The UCCJEA defines a child custody determination as “any
judgment, decree, or other order of a court, including a permanent,
temporary, initial and modification order, for legal custody, physical
custody or visitation with respect to a child.” A.R.S. § 25-1002(3)(a). As
such, the 2008 judgment and order determining the parentage of T.R. and
the 2008 order granting summary judgment regarding the paternity of T.R.,
both entered by the Washington court and proffered by Mother below to
demonstrate Washington had jurisdiction over the matter, constitute an
initial child custody determination with regards to T.R.
¶25 The UCCJEA, however, allows for the court of one state to
modify a child custody determination made by a court of another state
under certain circumstances. For an Arizona juvenile court to have
jurisdiction to modify a Washington child custody determination, the
Arizona juvenile court must have jurisdiction to make an initial
determination under A.R.S. § 25-1031(A)(1) or (2). See A.R.S. § 25-1033. In
addition, one of the following conditions must exist: (1) the Washington
court determines it no longer has exclusive, continuing jurisdiction, (2) the
Washington court determines that Arizona would be a more convenient
forum, or (3) an Arizona court determines that the child, the child’s parents,
and any person acting as a parent do not presently reside in Washington.
Id. Here, as previously discussed, the Arizona juvenile court had
jurisdiction to make an initial child custody determination, with regards to
all three children, under A.R.S. § 25-1031(A)(2).14 Further, the record
supports a finding that T.R., Mother, and the paternal grandparents were
residing in Arizona, not in Washington, at the time of removal, at the time
DCS filed the dependency petition, at the time DCS filed the severance
petition, and at the time of the severance hearing. “We will infer the
necessary findings to affirm” the juvenile court’s order, so long as those
“implied findings do not conflict with the court’s express findings.” State
v. Zamora, 220 Ariz. 63, 67, ¶ 7, 282 P.3d 528, 532 (App. 2009) (citations
omitted). Therefore, we infer that the Arizona juvenile court determined
T.R., Mother, and the paternal grandparents were not residing in
Washington at any pivotal point during the dependency or severance
actions. As such, the juvenile court had jurisdiction to modify
14 See supra Section I, ¶ 19.
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Decision of the Court
Washington’s 2008 child custody determination with respect to T.R. under
A.R.S. § 25-1033.
CONCLUSION
¶26 For the reasons stated above, we conclude the juvenile court
had jurisdiction to issue the severance order. Accordingly, we affirm the
juvenile court’s order.
:gsh
11