Ericka H., Terrance D. v. Dcs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ERICKA H., TERRANCE D., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, C.H., M.H., T.D., Appellees.
No. 1 CA-JV 20-0382
FILED 4-20-2021
Appeal from the Superior Court in Maricopa County
No. JD 39867
The Honorable Robert I. Brooks, Judge
AFFIRMED
COUNSEL
Barreda Law, Gilbert
By Joshua A. Barreda
Counsel for Appellant, Ericka H.
Jeffrey M. Zurbriggen PC, Phoenix
By Jeffrey Zurbriggen
Counsel for Appellant, Terrance D.
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Attorney for Appellee, Department of Child Safety
ERICKA H., TERRANCE D. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.
B R O W N, Judge:
Ericka H. (“Mother”) and Terrance D. (“Father”) appeal the
juvenile court’s dependency order, challenging the court’s exercise of
jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”). For the following reasons, we affirm.
BACKGROUND
Mother has three children involved in this dependency case:
C.H., born in 2003; M.H., born in 2005; and T.D., born in 2017. The father
of C.H. and M.H. is deceased, and “Father” is T.D.’s father. The family lived
in Illinois for years but traveled to Arizona in July 2020. The parties dispute
whether the family was merely visiting Arizona, but they were still here on
September 1, when the children were taken into Arizona Department of
Child Safety (“DCS”) custody after a domestic violence incident.
A few days later, DCS placed the children with their paternal
grandmother and petitioned for dependency as to both parents. DCS
asserted “Arizona has temporary emergency jurisdiction pursuant to A.R.S.
§ 25-1034” and “it is necessary to protect [each] child as he/she is
threatened with mistreatment or abuse.” DCS then moved for an
emergency UCCJEA conference to resolve potential jurisdictional issues,
acknowledging Illinois was the children’s home state because they had
been in Arizona for less than six months.
After a home visit, DCS decided paternal grandmother’s
home was an inappropriate placement and moved the three children to a
group home without seeking court approval. On October 4, 2020, a vehicle
with an unidentified driver pulled up outside the group home, and the two
older children grabbed T.D. and got into the car. The children’s
whereabouts remain unknown. Immediately after the incident, DCS filed
a belated motion for a change in physical custody, seeking court approval
for the earlier move to the group home.
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ERICKA H., TERRANCE D. v. DCS, et al.
Decision of the Court
Several weeks later, the juvenile court held a UCCJEA status
conference, which included brief participation by Judge Paula Gomora
from Will County, Illinois. Judge Gomora confirmed there were no
pending or prior child custody matters in her state and Illinois did not wish
to exercise jurisdiction. The superior court then explained it had emergency
jurisdiction over the case under the UCCJEA and it would continue to
exercise “ongoing jurisdiction” under A.R.S. § 25-1034. The court denied
DCS’s motion for a change in physical custody as moot because the
children’s whereabouts were unknown. Following the subsequent
adjudication hearing, the superior court found all three children dependent.
Mother and Father jointly appealed.
DISCUSSION
Mother and Father do not challenge the factual support for
the dependency findings; instead, they argue the dependency proceeding
should be dismissed for lack of jurisdiction. We review de novo whether
the juvenile court had jurisdiction to decide a dependency matter. Angel B.
v. Vanessa J., 234 Ariz. 69, 71, ¶ 6 (App. 2014). We also review de novo
matters of statutory interpretation. Willie G. v. Ariz. Dep’t of Econ. Sec., 211
Ariz. 231, 233, ¶ 8 (App. 2005).
The superior court correctly determined Arizona had
jurisdiction over the dependency proceedings under the UCCJEA. See
A.R.S. §§ 25-1001 to –1067; 750 ILCS 36/101 to 36/403. The parties do not
dispute Illinois was the children’s home state under the UCCJEA. See A.R.S.
§ 25-1002(7) (defining “home state”). However, the juvenile court could
properly exercise temporary emergency jurisdiction under § 25-1034(A),
which provides “[a] court of this state has temporary emergency
jurisdiction if the child is present in this state and . . . it is necessary . . . to
protect the child because the child . . . is subjected to or threatened with
mistreatment or abuse.”
Mother and Father argue temporary emergency jurisdiction
was improper because the children were not present in Arizona at the time
of the dependency adjudication hearing, as their whereabouts were
unknown. But the relevant time for determining a child’s presence for
jurisdictional purposes is the commencement of the proceedings, which in
this case means the date the dependency petition was filed. See David S. v.
Audilio S., 201 Ariz. 134, 136, ¶ 6 (App. 2001) (explaining relevant time for
determining jurisdiction under the Uniform Child Custody Jurisdiction Act
is “the commencement of the proceeding”); Atkinson v. McIndoo, No. 1 CA-
CV 14-0124, 2015 WL 127928, at *3 (Ariz. Ct. App. Jan. 8, 2015) (affirming
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ERICKA H., TERRANCE D. v. DCS, et al.
Decision of the Court
temporary emergency jurisdiction when “Child was located in Arizona at
the time of the petition”); see also McAbee v. McAbee, 259 So. 3d 134, 139 (Fla.
Dist. Ct. App. 2018) (finding emergency temporary jurisdiction proper
because child was “physically present” when petition was filed); Alger v.
Jacobs, 93 N.Y.S.3d 492, 493 (N.Y. App. Div. 2019) (same); In re M.P., 219
A.3d 1315, 1322, ¶ 20 (Vt. 2019) (same); cf. Peterson v. Peterson, 965 So. 2d
1096, 1101 (Ala. Civ. App. 2007) (rejecting jurisdiction because children
were not physically present in state on the date petition was filed); Bradshaw
v. Pelley-Whelan, 456 P.3d 765, 769 n.5 (Utah Ct. App. 2019) (same).
Interpreting § 25-1034(A) as urged by Mother and Father
would require dismissal of a dependency proceeding any time a child is not
present in the state at the time of the adjudication hearing. That
interpretation runs counter to the purposes of the UCCJEA. See Melgar v.
Campo, 215 Ariz. 605, 607, ¶ 10 (App. 2007) (explaining the UCCJEA’s
purpose is to “address the issue of competing orders and duplicative
jurisdiction”); see also Cleckner v. Ariz. Dep’t of Health Servs., 246 Ariz. 40, 43,
¶ 9 (App. 2019) (noting courts “seek to apply a sensible construction that
avoids absurd results”). The children here have absconded or been
abducted, and as the superior court said, “[i]t cannot be in the children’s
best interests that . . . no Court possesses jurisdiction to keep them safe
once located.”
Because the children undisputedly were present in Arizona
when DCS filed the petition, the superior court properly exercised
temporary emergency jurisdiction. Illinois, the children’s home state, had
no prior child custody determinations or ongoing proceedings, and the
Illinois court expressly declined to exercise jurisdiction in this matter. Thus,
the Arizona dependency order remains in effect as a final determination in
this matter, as the superior court stated. See A.R.S. § 25-1034(B) (allowing
an order to become a final determination “if there is no previous child
custody determination . . . and a child custody proceeding has not been
commenced in . . . a state having jurisdiction under § 25-1031, 25-1032, or
25-1033”).1
1 Mother and Father also argue temporary emergency jurisdiction was
improper because the specific time for exercising jurisdiction was not
defined, citing A.R.S. § 25-1034(C)–(D). However, those statutory
subsections are not pertinent here, as they only apply if another state with
jurisdiction has a prior child custody determination or an ongoing
proceeding.
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ERICKA H., TERRANCE D. v. DCS, et al.
Decision of the Court
In passing, Mother and Father suggest the superior court
erred and did not find them indigent, which “forced [them] to hire private
counsel.” Because they fail to develop the argument or provide any
supporting authority, it is waived. See State v. Moody, 208 Ariz. 424, 452 n.9
(2004) (“Merely mentioning an argument is not enough . . . . ‘Failure to
argue a claim usually constitutes abandonment and waiver . . . .’”); Christina
G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234 n.6 (App. 2011) (finding
waiver where appellant “made a general argument in her opening brief”
but failed to develop it).
Finally, Mother and Father request attorneys’ fees and costs
under ARCAP 21. We deny the fee request because the parents failed to
cite any supporting substantive authority. See ARCAP 21(a)(2) (“A claim
for fees under this Rule must specifically state the statute, rule, decisional
law, contract, or other authority for an award of attorneys’ fees.”). We also
deny the parents’ request for costs because, even assuming taxable costs
may be awarded to a party who does not prevail on appeal, ARCAP 21 does
not authorize awarding such costs in juvenile proceedings. See ARCAP 1(b)
(explaining the civil appellate rules govern “civil appeals”); Ariz. R.P. Juv.
Ct. 103(G) (listing ARCAP rules that apply in juvenile proceedings, which
do not include ARCAP 21).
CONCLUSION
We affirm the superior court’s dependency order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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