Holly C. v. Tohono O'Odham Nation

          Appeal from the Superior Court in Pima County Special Action Proceeding No. JD20180146 The Honorable Lori B. Jones, Judge Pro Tempore

          Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant and Petitioner Holly C.

          Law Office of Belinda B. BreMiller, Tucson By Belinda B. BreMiller Counsel for Petitioner Elizabeth F.

          Chad 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

          Law Office of Jacqueline Rohr, Tucson By Jacqueline Rohr Counsel for Appellee Brian S.

          James Fullin, Pima County Legal Defender By Ruby J. Becker, Assistant Legal Defender, Tucson Counsel for Real Party in Interest Brian S.

          Pima 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.

          OPINION

          EPPICH, PRESIDING JUDGE.

         ¶1 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.

         ¶2As 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.^[1]

         Consolidation

         ¶3In 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).^[2] 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.

         ¶4 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.

         ¶5 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 id.

         Factual and Procedural Background

         ¶6 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 court."

         ¶7 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.^[3] 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.^[4] 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.

         Dismissal of the First Dependency Proceeding (No. 2 CA-JV 2018-0101)

         ¶8 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 probation.

         ¶9 In temporary orders entered pursuant to A.R.S. § 8-841(F), ^[5] 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.

         ¶10 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.

         ¶11 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.

         ¶12 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 excused.^[6]

         ¶13 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.

         Dismissal of the Second Dependency Proceeding (No. 2 CA-SA 2019-0027)

         ¶14 On March 14, 2019, Elizabeth filed a second dependency petition in which she alleged G.C. was dependent because Brian was incarcerated^[7] 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, "^[8] 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.

         ¶15 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.

         ¶16 In the "Findings" section of that report, DCS stated that G.C. was residing with Mary S., his paternal great aunt, ^[9] who had obtained a power of attorney related to his custody.^[10] 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.

         ¶17 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."

         ¶18 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."^[11]

         ¶19 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.

         ¶20 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.

         ¶21 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.

         ¶22 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.^[12]

         ¶23 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 standards.^[13]

         ¶24 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" ...