Jennifer G. v. Michael C., A.C. ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JENNIFER G., Appellant,
v.
MICHAEL C., A.C., Appellees.
No. 1 CA-JV 20-0236
FILED 1-14-2021
Appeal from the Superior Court in Maricopa County
No. JS19983
The Honorable Melody Harmon, Judge Pro Tempore
REMANDED
COUNSEL
Denise L. Carroll Esq., Scottsdale
By Denise Lynn Carroll
Counsel for Appellant
Law Offices of Warren Luccitti, Glendale
By Warren Luccitti
Counsel for Appellee
JENNIFER G. v. MICHAEL C., A.C.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined.
H O W E, Judge:
¶1 Jennifer G. (“Mother”) appeals from the juvenile court’s order
terminating her parental rights to her daughter, A.C. For the following
reasons, we remand because whether we have subject matter jurisdiction is
unclear.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
juvenile court’s order. Demetrius L. v. Joshlynn F., 239 Ariz. 1, 2 ¶ 2 (2016).
Michael C. (“Father”) and Mother are the natural parents of A.C., born in
2005. Father and Mother were not married. Before A.C. turned three,
neither Father, incarcerated at the time, nor Mother could take care of A.C.
and in March of 2008, the maternal grandparents petitioned a California
court for a guardianship and obtained legal custody of A.C. After Father
was released from prison in 2008, he petitioned the California court to
terminate the guardianship and petitioned for custody of A.C. The
California court terminated the guardianship and ordered joint custody,
designating Father as the custodial parent and granting visitation to Mother
“at [F]ather’s discretion with 48 hour notice.”
¶3 Father and his wife subsequently moved to Arizona. In
August 2016, Father petitioned the California court for sole custody of A.C.,
which the court granted in September 2016. However, the California court
crossed out the portion of the order that transferred the case to Arizona.
While Mother moved to Arizona for a time between 2016 and 2017, she
moved back to California some time before January 31, 2019.
¶4 In March 2019, Father petitioned in the Arizona Superior
Court to terminate Mother’s parental rights. He alleged that Mother had
abandoned A.C. and suffers prolonged substance abuse. Mother contested
the termination. During the termination hearing, Father testified that A.C.
was not subject to any child custody order in another jurisdiction.
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JENNIFER G. v. MICHAEL C., A.C.
Decision of the Court
DISCUSSION
¶5 This court has an independent obligation to evaluate subject
matter jurisdiction. Angel B. v. Vanessa J., 234 Ariz. 69, 71 ¶ 5 (App. 2014).
The lack of subject matter jurisdiction cannot be waived. Dowling v. Stapley,
221 Ariz. 251, 264 ¶ 38 n. 13 (App. 2009).
¶6 The Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”) applies to private termination proceedings. Angel B., 234
Ariz. at 73 ¶ 14. Once a court with original jurisdiction issues an initial child
custody order, that court has exclusive, continuing jurisdiction over all
future custody determinations, subject to statutory exceptions. A.R.S. § 25–
1032(A). Unless a statutory exception applies, courts are prohibited from
modifying an initial child custody order entered by a court in another state
with exclusive, continuing jurisdiction, A.R.S. § 25–1033, including a
private termination order, Angel B., 234 Ariz. at 73 ¶ 14.
¶7 As applicable here, an Arizona court “shall not modify a child
custody determination made by a court of another state unless a court of
this state has jurisdiction to make an initial determination under § 25–1031”
and either “the court of the other state determines that it no longer has
exclusive, continuing jurisdiction under § 25–1032 or that a court of this
state would be a more convenient forum under § 25–1037;” or “a court of
this state or a court of the other state determines that the child, the child's
parents and any person acting as a parent do not presently reside in the
other state.” A.R.S. § 25–1033.
¶8 Here, Arizona has jurisdiction to make an initial
determination under A.R.S. § 25–1031(A)(1). Arizona was A.C.'s home state
at the time that Father filed his termination petition because A.C. had lived
in Arizona for at least six months. See A.R.S. § 25–1002(7)(a); Angel B., 234
Ariz. at 74 ¶ 16. To establish jurisdiction in Arizona to issue a termination
order, however, the requirements of either A.R.S. §§ 25–1033(1) or –1033(2)
must also be met. Id.
¶9 Because Mother currently lives in California, A.R.S. § 25–
1033(2) does not apply. And the record does not show whether California
determined that it no longer had exclusive and continuing jurisdiction over
A.C.’s custody matter or that Arizona would be a more convenient forum,
so whether § 25–1033(1) applies is unclear. The only evidence on this issue
is that when the California court signed the September 26, 2016 order
awarding Father custody—an order that Father apparently drafted and
proposed—it struck the part of the proposed order transferring the case to
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JENNIFER G. v. MICHAEL C., A.C.
Decision of the Court
Maricopa County Superior Court. Of course, this does not mean that the
California court may not have subsequently made the findings required by
§ 25–1033(1), but the record in this case does not contain such an order.
¶10 Because any determination by the California court
relinquishing its exclusive, continuing jurisdiction under A.R.S. § 25–1033
must be a part of the record, A.R.S. § 25–1010 (D); Angel B., 234 Ariz. at 74
¶ 17, remand is necessary so the superior court may address this
jurisdictional issue. For guidance on remand, we reiterate what this court
had previously stated in Angel B. The California court may have been
consulted about jurisdiction before the issuance of the severance order and
issued an order either relinquishing or retaining jurisdiction, but no copy
of that California order was filed in this case. Angel B., 234 Ariz. at 74 ¶ 19.
If such a California order exists, the record can be supplemented to include
a copy of the order and Mother may again appeal the merits of the
severance order to this court. Id. If, on the other hand, the California court
was contacted and determined that it wished to retain jurisdiction, the
record can be supplemented to include an appropriate copy of that order.
Id. In that case, Arizona would lack jurisdiction over the termination
proceedings and the termination order would be void. Id.
¶11 It may be that the California court has not yet been asked
whether it wished to retain exclusive, continuing jurisdiction or whether
California has become an inconvenient forum and Arizona would be a more
convenient forum. Id. In that case, either party would be free to seek a
determination from the California court addressing the issue, including
asking the Arizona superior court to confer with the California court. Id. If
the California court declines to retain its exclusive, continuing jurisdiction,
that order would not act retroactively, however, and the termination order
now currently on appeal would be void for lack of subject matter
jurisdiction. Monique B. v. Duncan, 245 Ariz. at 375 (App. 2018) (factually
and legally jurisdictional orders under UCCJEA only apply prospectively).
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JENNIFER G. v. MICHAEL C., A.C.
Decision of the Court
CONCLUSION
¶12 For the foregoing reasons, we remand to the juvenile court to
clarify the record.
AMY M. WOOD • Clerk of the Court
FILED: AA
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