from the Superior Court in Pima County Special Action
Proceeding No. JD20180146 The Honorable Lori B. Jones, Judge
Feinman, Pima County Public Defender By David J. Euchner,
Assistant Public Defender, Tucson Counsel for Appellant and
Petitioner Holly C.
Office of Belinda B. BreMiller, Tucson By Belinda B.
BreMiller Counsel for Petitioner Elizabeth F.
Smith, Tohono O'odham Nation Attorney General By Jennifer
L. Espino and Rosalynde Alexander, Assistant Attorneys
General, Sells Counsel for Appellee/Real Party in Interest
Tohono O'odham Nation
Office of Jacqueline Rohr, Tucson By Jacqueline Rohr Counsel
for Appellee Brian S.
Fullin, Pima County Legal Defender By Ruby J. Becker,
Assistant Legal Defender, Tucson Counsel for Real Party in
Interest Brian S.
County Office of Children's Counsel By Sybil Clarke,
Tucson Counsel for Minor
Presiding Judge Eppich authored the opinion of the Court, in
which Judge Espinosa and Judge Eckerstrom concurred.
EPPICH, PRESIDING JUDGE.
In these consolidated appellate proceedings, we consider, as
a matter of first impression, jurisdictional questions
involving the interplay of Arizona's child safety
statutes, title 8, A.R.S.; the Indian Child Welfare Act
(ICWA), 25 U.S.C. §§ 1901-1963; and the Uniform
Child Custody Jurisdiction and Enforcement Act (the UCCJEA),
A.R.S. §§ 25-1001 to 25-1067, as applied to private
dependency proceedings in which Elizabeth F. sought custody
of her seven-year-old grandson G.C. Because Holly and
Elizabeth continue to challenge the jurisdiction of the
Tohono O'odham Nation (the "Nation") to issue
legal-decision-making and parenting-time orders in separate
domestic relations proceedings pending in the Nation's
court since 2017, issues of comity between separate
sovereigns may also be implicated.
addressed below, we let stand the respondent judge's
decision declining to order G.C.'s emergency removal from
the home of his paternal great aunt, Mary S. On the limited
record before us, however, the evidence and analysis is
insufficient to support the respondent's dismissal of the
dependency on jurisdictional grounds. We therefore vacate the
dismissal in the 2019 dependency proceeding and remand the
case for further proceedings.
No. 2 CA-JV 2018-0101, Holly C. appealed from the juvenile
court's dismissal of the dependency petition her mother,
Elizabeth, had filed in March 2018. This court dismissed the
appeal for lack of jurisdiction, concluding that Holly, a
respondent in a dependency proceeding against her, was not
"aggrieved" by its dismissal, as required for an
appeal under A.R.S. § 8-235(A). Our supreme court vacated
that decision, concluded Holly was entitled to an appeal, and
remanded the case to this court for reinstatement and
"disposition . . . on the merits." Holly C. v.
Tohono O'odham Nation, No. CV-19-0023-PR (Ariz. May
28, 2019) (order). Pursuant to that order, the appeal in No.
2 CA-JV 2018-0101 has been reinstated.
Three weeks before our supreme court issued the remand order
in No. 2 CA-JV 2018-0101, Elizabeth and Holly filed the
instant petition for special-action relief, No. 2 CA-SA
2019-0027, in which they contend the respondent judge abused
her discretion by refusing to exercise jurisdiction in the
second dependency proceeding, which commenced when Elizabeth
filed her March 2019 petition. In that dependency petition,
Elizabeth raised some of the same arguments she had raised in
her 2018 dependency proceeding, but she also argued that
changed circumstances warranted the exercise of
"emergency jurisdiction" under ICWA and the UCCJEA.
This court consolidated these matters on its own motion. Both
cases involve the respondent judge's rulings dismissing
the dependency proceedings on jurisdictional grounds.
Elizabeth and Holly have also filed notices of appeal from
the April 2019 dismissal of the second dependency proceeding,
but the remedy by appeal is not equally "speedy,"
as briefing is not yet complete. Ariz. R. P. Spec. Act. 1(a)
("special action . . . not . . . available where there
is an equally plain, speedy, and adequate remedy by
appeal"). In addition, the special action raises legal
issues related to the manner in which jurisdiction is to be
determined in these circumstances, a matter of statewide
importance that relates to child welfare. See Monique B.
v. Duncan, 245 Ariz. 371, ¶¶ 9-10 (App. 2018)
(accepting special-action jurisdiction "[b]ecause the
petition presents a legal issue of first impression in
applying the UCCJEA [to title 8 proceedings], is likely to
recur and involves the welfare of a child"). In our
discretion, we accept special-action jurisdiction. See
and Procedural Background
The following facts are undisputed. As an enrolled member of
the Nation, Brian sought tribal enrollment for G.C., which
was approved on June 6, 2016. On December 9, 2016, the
Arizona Department of Economic Security ("ADES")
filed a "Petition to Establish Child Support (Post
Paternity)" in Pima County Superior Court ("Child
Support Proceeding"). On May 1, 2017, that trial court
entered a judgment establishing Brian's child support
obligations. The form of order specified paternity had
previously been established by his filing a voluntary
acknowledgment of paternity with the ADES. See
A.R.S. § 25-812(D); cf. Michael J., Jr. v. Michael
J., Sr., 198 Ariz. 154, ¶ 12 (App. 2000) (ICWA only
"requires that a putative Indian father acknowledge or
establish paternity") (citing Coconino Cty. Juv.
Action No. J-10175, 153 Ariz. 346, 350 (App. 1987) and
noting that court "applied ICWA despite the lack of a
formal paternity proceeding, where the putative father
acknowledged paternity and enrolled the child in his
tribe"). On a portion of the form titled "[o]ther
findings and orders," the court noted, "There is a
parenting time order from [the Tohono O'odham] tribal
That court may have been referring to a custody action Brian
had filed on February 22, 2017, in the Judicial Court of the
Nation ("Parenting-Time Proceeding"). Holly does
not dispute that she appeared in that proceeding and
responded to Brian's petition without challenging the
Nation's jurisdiction. On October 18, 2017, apparently
pursuant to a stipulation filed by Brian and Holly, the
Nation's court awarded Brian sole legal decision-making
authority and primary parenting time for G.C., with review
hearings scheduled to consider whether Holly "should be
awarded supervised parenting time given the concerns over her
mental state and ability to parent" G.C. On February 20,
2018, ADES filed a motion in the Child Support Proceeding to
terminate Brian's child support obligations, based on his
having had physical custody of G.C. after September 2017. The
trial court granted that motion on April 2, 2018.
of the First Dependency Proceeding (No. 2 CA-JV
On March 16, 2018, while the motion to terminate support was
pending, Elizabeth filed a dependency petition in Pima County
Superior Court alleging Brian had neglected G.C. by failing
to maintain suitable living conditions and was unable to
parent G.C. due to alcohol and marijuana use. She also
alleged that he had "a history of aggravated
assault" and had "engaged in serious domestic
violence with [Holly] between 2010 and 2018." Elizabeth
sought custody of G.C, asserting in an affidavit that she had
"lived with" and "supported" G.C. from
his birth until Brian was awarded physical custody in the
Parenting-Time Proceeding and that Holly "has a history
of mental health issues that make it difficult for her to
parent right now" and, additionally, was on felony
In temporary orders entered pursuant to A.R.S. §
8-841(F),  the juvenile court ordered the Department
of Child Safety (DCS) to conduct an investigation, including
"a safety check of the child's home," but it
declined Elizabeth's request that she be awarded
temporary custody. An initial dependency hearing was
scheduled for April 6, 2018.
Two days before that hearing, on April 4, 2018, the
Nation's court held a custody review hearing and was
informed that Elizabeth had filed the dependency petition in
Pima County. That court found the parties had acknowledged
its subject matter and personal jurisdiction when they
stipulated to Brian's having sole legal-decision-making
authority, and it further found it "continues to have
jurisdiction over the subject minor child, as the child is a
registered member of the Tohono O'odham Nation." The
Nation's court reaffirmed supervised visitation
guidelines previously entered for Holly, ordered that DCS
records be provided for an in-chambers review, and scheduled
an evidentiary hearing for June 27, 2018.
On April 6, 2018, at the initial dependency hearing in Pima
County Juvenile Court, Brian entered a special appearance for
the purpose of challenging the court's jurisdiction and
filed a motion to dismiss the dependency proceeding on that
ground. In it, he argued the Nation had continuing, exclusive
jurisdiction over G.C.'s custody pursuant to both the
UCCJEA and ICWA.
The juvenile court scheduled briefing on Brian's motion
to dismiss and continued the hearing until May 15, 2018,
stating it did not believe an evidentiary hearing would be
needed. DCS, which was not a party but had submitted a
court-ordered investigation report, asked that it be excused
from further proceedings, advising the court, "Our
report documents that we do not believe that a dependency
exists at this time." After confirming that none of the
parties objected, the court granted DCS's request to be
Before commencing the continued hearing in May, the
respondent judge conducted an on-the-record conference call
with the tribal court judge and informed him of her intention
to dismiss the private dependency, having concluded "the
UCCJEA does apply and the Nation does have continuing
jurisdiction in this matter." The hearing was commenced,
the parties offered argument, and the juvenile court granted
the motion to dismiss, citing provisions of the UCCJEA and
stating, "The Nation was the first court to make a
custody determination and therefore it has exclusive
continuing jurisdiction absent any temporary emergency
jurisdiction issues, which are not present in this
situation." Similarly, in its signed minute entry, the
court wrote, "The Nation issued the original custodial
determination and will continue to hold hearings in the
matter; therefore, pursuant to the UCCJEA the jurisdiction of
these proceedings remains solely with the Nation."
Holly's appeal in No. 2 CA-JV 2018-0101 followed, and we
have reinstated that appeal after remand.
of the Second Dependency Proceeding (No. 2 CA-SA
On March 14, 2019, Elizabeth filed a second dependency
petition in which she alleged G.C. was dependent because
Brian was incarcerated and Holly was residing in an inpatient
substance abuse rehabilitation facility. In her petition,
Elizabeth specifically asked the juvenile court to exercise
"emergency jurisdiction," citing both ICWA and the
UCCJEA. She argued, as she had in the 2018 proceeding, that
the order in Pima County's Child Support Proceeding - not
the parenting order entered by the Nation's court-was the
initial custody determination under the UCCJEA. In contrast
to Brian's earlier representation that he was
"currently residing in Tucson" but had "lived
on the Tohono O'Odham reservation for most of his life,
" Elizabeth asserted that "[n]o one
involved in this case has, since the child was born, or ever,
resided on the Tohono O'odham reservation, including
[Brian]." Elizabeth asked that G.C. be placed with her
if he were removed from his current home.
In temporary orders issued after the dependency petition was
filed, the juvenile court declined to order G.C.'s
removal, noting that he "may be residing with paternal
relatives." But the court again directed DCS to conduct
an investigation and provide a written report of its findings
before the initial dependency hearing.
In the "Findings" section of that report, DCS
stated that G.C. was residing with Mary S., his paternal
great aunt,  who had obtained a power of attorney
related to his custody. DCS confirmed that Brian was
incarcerated and that Holly was in a rehabilitation center,
and it found that both Elizabeth's and Mary's homes
"were clean, appropriate, and did not pose any health or
safety factor for [G.C.]." But DCS reported that James,
G.C.'s uncle, also lived with Mary and had a "long
criminal history," a history of substance abuse, and has
been diagnosed with bi-polar disorder that he
"self-medicates" with medical marijuana. In
addition, DCS reported that G.C. "has special
educational and possible behavioral health needs that the
paternal family has failed to address," despite
referrals from his school.
In conclusion, the DCS report reflected "a concern of
the appropriateness of [Mary's] home due to James . . .
residing in the home," noting that James would not
"pass a preliminary background check" for the
purpose of placement. DCS also expressed "additional
concerns" about Mary's "ability to protect
[G.C] from Brian and James," as well as the family's
failure to follow through with the school's referrals.
DCS recommended "that [G.C.] be taken into state
custody" and "recommend[ed] placement with
[Elizabeth] at this time," but it stated it "would
consider reassessing placement if James . . . did not reside
in [Mary's] home."
At the initial dependency hearing in April 2019, Elizabeth
told the respondent judge, "What we argue and have
argued in the past is that this court's jurisdiction is
based on emergency jurisdiction," but she did not
identify any statutory basis for that requested
determination. She argued the "biggest problem" was
that the court had "heard no evidence" and was
"making decisions" about jurisdiction "without
having any hearing."
The Nation told the respondent judge the dependency
"should be dismissed" and "a referral should
be made to [the Nation's] Child Welfare Division."
It noted the court's ruling in Elizabeth's 2018
dependency proceeding and argued, as it had in that case,
that the Nation had "exclusive jurisdiction under the
UCCJEA" based on the "final order of custody to the
father" the court had issued in October 2017.
DCS also relied on the UCCJEA, arguing the respondent judge
had "temporary emergency jurisdiction" under those
statutes. It also referred to the procedure the juvenile
court had followed in 2018, suggesting the appropriate action
under the UCCJEA would be for the juvenile court to contact
the Nation's judge, in his role as "legal authority
representing the home state," "to see whether [he
is] willing to cede jurisdiction to the state courts."
But "[u]ntil then," DCS said, it "believes
there is a dependency in place" and it wanted "to
step in and take custody of [G.C.]." Holly joined in the
arguments made by Elizabeth and DCS.
Brian responded, "All of their emergency situations are
hypothetical or future what ifs, not the imminent physical
danger of the child, which is required to be shown under
ICWA." G.C.'s attorney agreed with the Nation's
and Brian's arguments about jurisdiction, and she also
disputed DCS's report, telling the juvenile court,
"[G.C. is] doing very well in [Mary's] home.
He's very attached in the home. He has been well-cared
for in the home." She maintained issues related to
Brian's detention and James's presence in the home
"would be better addressed in the Tribal Court"
because of its familiarity with the family.
After additional argument and a review of her notes from the
2018 hearing, the respondent judge dismissed the 2019
dependency proceeding and referred the matter to the
Nation's Child Welfare Division, stating, "[A]bsent
any temporary emergency jurisdiction issues, which I do not
find today, [the Nation] continue[s] to have jurisdiction
over this issue." When asked, however, the respondent
declined to state whether she was finding that the Nation had
"continuing exclusive jurisdiction." The respondent
denied Elizabeth and Holly's motion for reconsideration,
and they filed their petition for special action, as well as
notices of appeal.
In their special-action petition, Holly and Elizabeth alleged
the respondent judge abused her discretion in declining to
exercise "emergency jurisdiction" without holding
an evidentiary hearing. They have withdrawn their request for
remand on that issue, however, in light of the change in
circumstances - specifically, the Nation's order awarding
Holly physical and legal custody of G.C. Because
consideration of an emergency removal may arise again,
however, we briefly address the relevant
They next contend the respondent erroneously concluded the
UCCJEA precluded state jurisdiction over the dependency
proceeding because "this dependency action is not a
'child custody action' as regulated under Title 25,
A.R.S." They also rely on A.R.S. § 25-1004(A),
which provides, "A child custody proceeding that
pertains to an Indian child . . . is not subject to"