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Department of Child Safety v. Stocking-Tate

Court of Appeals of Arizona, First Division

June 14, 2019

DEPARTMENT OF CHILD SAFETY, Petitioner,
v.
THE HONORABLE KATHRYN STOCKING-TATE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of YUMA, Respondent Judge, MARK R., M.S., and L.R.-S., Real Parties in Interest.

          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

          Law Office of Denise-Avila Taylor, Yuma By Denise Avila-Taylor Counsel for Real Party in Interest Mark R.

          Law 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.

          Judge Kenton D. Jones delivered the Opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Chief Judge Samuel A. Thumma joined.

          OPINION

          JONES, JUDGE.

         ¶1 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 motion.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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)[1] (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.").

         ¶3 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.[2]

         ¶4 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 . . . .").

         ¶5 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 court[.]").

         ¶6 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 special action.

         JU ...


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