Petition for Special Action from the Superior Court in Yuma
County No. S1400JD20180551, S1400JD20180552 The Honorable
Kathryn E. Stocking-Tate, Judge
Arizona Attorney General's Office, Tucson By Dawn
Rachelle Williams Counsel for Petitione
Office of Denise-Avila Taylor, Yuma By Denise Avila-Taylor
Counsel for Real Party in Interest Mark R.
Office of Heather C. Vinci, P.L.L.C, Yuma By Heather C. Vinci
Counsel for Real Parties in Interest M.S. and L.R.-S.
Kenton D. Jones delivered the Opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Chief Judge Samuel
A. Thumma joined.
The Department of Child Safety (DCS) seeks special action
review of a juvenile court order granting a motion by Mark R.
(Father) to strike an ex parte order authorizing DCS
to take temporary custody of two young children. In our
discretion, we accept special action jurisdiction and hold
that the legal standard to be applied to a motion challenging
temporary custody depends upon the timing of the motion.
Because the court applied an incorrect legal standard here,
we grant relief and vacate the order granting Father's
AND PROCEDURAL HISTORY
On October 26, 2018, M.S., an Indian child, was born
substance-exposed. At the same time, her mother (Mother)
tested positive for methamphetamine. Two days later, DCS
filed an electronic application and sworn declaration in
Maricopa County Superior Court seeking an ex parte
order authorizing it to assume temporary custody over M.S.
and his eighteen-month-old sister, L.S.-R. (collectively, the
Children). See Ariz. Rev. Stat. (A.R.S.) §
8-821(B) (authorizing temporary custody where,
"on a sworn statement or testimony," the court
finds "probable cause exists to believe that temporary
custody is clearly necessary to protect the child from
suffering abuse or neglect and it is contrary to the
child's welfare to remain in the home"); Ariz. R.P.
Juv. Ct. 47.3(A) ("On application under oath the court
will determine whether to authorize [DCS] to take temporary
custody of a child.").
After considering DCS's application and sworn
declaration, the superior court found it "contrary to
the [C]hildren's welfare to remain" with Mother and
Father and that "temporary custody was necessary to
prevent imminent physical damage or harm to the
[C]hildren." Thus, on October 28, 2018, the court found
probable cause "to believe that temporary custody is
clearly necessary to protect" the Children and issued an
ex parte order authorizing DCS to take temporary
custody of the Children.
DCS took custody of the Children, and, on October 31, 2018,
filed a verified petition in Yuma County Superior Court
alleging the Children were dependent as to Mother and Father
based upon substance abuse and neglect. After reviewing the
petition, the juvenile court found it would be contrary to
the Children's welfare to place them with Mother and
Father and issued a separate order, on November 1,
authorizing DCS's temporary custody of the Children.
See A.R.S. § 8-821(B) (authorizing temporary
custody where, "on a dependency petition filed . . .
under oath," the court finds "probable cause exists
to believe that temporary custody is clearly necessary to
protect the child from suffering abuse or neglect and it is
contrary to the child's welfare to remain in the
home"); Ariz. R.P. Juv. Ct. 48(B) ("Upon the filing
of a [dependency] petition, the court may issue temporary
orders necessary to provide for the safety and welfare of the
child."). The court also scheduled and held a
preliminary protective hearing (PPH) on November 6. Although
Father did not appear, at the conclusion of the PPH, the
court issued a third order finding temporary custody was
necessary to prevent abuse and neglect and that return of the
Children to Mother and Father was contrary to their best
interests. See Ariz. R.P. Juv. Ct. 50(A) ("At
the [PPH], the court shall determine whether continued
temporary custody of the child is necessary and shall enter
appropriate orders as to custody . . . .").
Three days later, Father personally appeared before the
juvenile court at the initial dependency hearing (IDH).
Although given the opportunity to do so, Father did not
challenge the orders authorizing temporary custody of the
Children at the IDH. At the conclusion of the hearing, the
court again found "temporary custody [with DCS] is
necessary to prevent abuse or neglect and return of the
Children to the Parents . . . is contrary to the best
interest[s] of the Children" and issued a fourth order
authorizing temporary custody on November 9, 2018.
See Ariz. R.P. Juv. Ct. 52(D)(6) ("At the
conclusion of the [IDH] the court shall . . . [a]ffirm prior
orders making the child a temporary ward of the
On November 27, 2018, Father filed a motion to return the
Children to his care, arguing that the October 28 application
and sworn declaration in support of DCS's request for the
original ex parte temporary custody order
"d[id] not set forth sufficient facts to support
findings of probable cause" to remove the Children from
his care. In response, DCS asked the juvenile court to set an
evidentiary hearing pursuant to Arizona Rule of Procedure for
the Juvenile Court (Rule) 59. See Ariz. R.P. Juv.
Ct. 59(E)(1) (authorizing the juvenile court to return a
child to a parent upon request made after the PPH if it
finds, "by a preponderance of the evidence, that return
of the child would not create a substantial risk of harm to
the child's physical, mental or emotional health or
safety"). The court held oral argument on December 31
but did not apply Rule 59 or require Father to show the
Children would be safe in his care; nor did the court allow
DCS to present evidence regarding the need for continued
out-of-home care. Instead, the court found the application
and declaration in support of the ex parte order
deficient and ordered the Children returned to Father. This
Court stayed the return order pending resolution of the