Phillip G. v. Hon korbin-steiner/dcs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PHILLIP G., Petitioner,

v.

THE HONORABLE RONEE KORBIN-STEINER, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

ARIZONA DEPARTMENT OF CHILD SAFETY, Real Party in Interest.

No. 1 CA-SA 23-0187
FILED 12-21-2023

Petition for Special Action from the Superior Court in Maricopa County
No. JD510761
The Honorable Elizabeth Bingert, Commissioner
The Honorable Jay M. Polk, Judge
The Honorable Ronee Korbin-Steiner, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Maricopa County Public Advocate, Mesa
By Christine Jones
Counsel for Petitioner

Arizona Attorney General’s Office, Tucson
By Dawn Rachelle Williams
Counsel for Real Party in Interest DCS

Alexander Legal LLC, Chandler
By Amy Alexander
Counsel for Real Party in Interest T.G.
 PHILLIP G. v. HON KORBIN-STEINER/DCS
Opinion of the Court

Law Office of Timothy V. Nelson, Queen Creek
By Timothy V. Nelson
Counsel for Real Party Anita M.

OPINION

Judge Michael S. Catlett delivered the opinion of the Court, in which
Presiding Judge David D. Weinzweig and Judge Maria Elena Cruz joined.

C A T L E T T, Judge:

¶1 T.G. (“Child”) was born in Ohio in August 2023. When Child
was just two days old, the juvenile court issued ex parte orders allowing the
Department of Child Safety (the “Department”) to take Child into custody
and bring her to Arizona. The Department, therefore, took Child into
custody in Ohio and transported her to Arizona. By then, Child was just
five days old.

¶2 The question presented is whether the juvenile court had
jurisdiction under the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”) to allow the Department to take custody of
an infant born and located in Ohio who had never been to Arizona. The
answer is no.

¶3 Phillip G., Child’s father (“Father”), sought special action
relief from this Court, arguing the juvenile court lacked jurisdiction over
Child. Though the Department sought the ex parte orders at issue and then
defended them in the juvenile court, the Department changed course when
Father sought special action relief, conceding the juvenile court lacked
jurisdiction. We agreed the juvenile court lacked jurisdiction. So we issued
an order accepting special action jurisdiction and granting relief by vacating
the juvenile court’s orders and requiring the Department to return Child to
Ohio. We also promised an opinion would follow. This is that opinion.

FACTS AND PROCEDURAL HISTORY

¶4 Anita M. (“Mother”) and Father are Child’s parents.
According to the Department, “[b]oth parents have a well-documented
history of substance abuse, mental-health issues, and child neglect,

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Opinion of the Court

resulting in the termination of Mother’s parental rights to seven children
and the termination of Father’s parental rights to four children.”

¶5 Around July 2023, Father moved from Arizona to Ohio. On
August 11, 2023, Mother flew from Arizona to Ohio, where she gave birth
to Child on August 12, 2023. The Department received a call from the Ohio
Department of Job and Family Services (the “Ohio Department”) reporting
Child was “substance exposed” at birth and Mother had tested positive for
amphetamines. The Ohio Department declined to take jurisdiction over
Child but said it would take temporary emergency jurisdiction until the
Department could take custody. The record does not reflect whether the
Ohio Department did so.

¶6 At 12:15 p.m. on August 14, 2023, the Department filed an ex
parte motion in the juvenile court to take custody of Child. Two minutes
later, the juvenile court issued the requested order—at 12:17 p.m., the court
signed an ex parte order permitting the Department to take Child into
custody. That same day, the Department also filed a dependency petition
and asked for temporary orders. The Department acknowledged that
Father had moved to Ohio and Child was born there but asked the juvenile
court to exercise temporary jurisdiction and place Child in the
Department’s custody.

¶7 The next day, the juvenile court issued temporary orders,
setting a preliminary hearing, making Child a temporary ward of the court,
placing Child in the Department’s physical and legal custody, and
authorizing law enforcement to assist in removing Child from Ohio to
Arizona. The court issued the temporary orders when Child was still in
Ohio; those orders did not address jurisdiction.

¶8 On August 17, 2023, when Child was five days old, the
Department arranged for her to be taken into custody and transported from
Ohio to Arizona. After a hearing, the juvenile court concluded there was
“probable cause to find that temporary emergency jurisdiction in Arizona
is appropriate given the alleged substance abuse issues[.]” The court
acknowledged that “[Child] was not originally present in Arizona,” but it
exercised temporary emergency jurisdiction because “she is residing here
now as a result of the Department obtaining an order to remove her from
Ohio.” The court believed the Department “had no other option but to
bring [Child] to Arizona.”

¶9 The juvenile court also held discussions with two Ohio
judges—one in Stark County and one in Carroll County—about whether

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Opinion of the Court

their courts would accept jurisdiction over Child. It is unclear whether any
of the parties were present for those conversations, but the juvenile court
later indicated that the Ohio judges said they would not accept jurisdiction.

¶10 Father moved to dismiss the dependency petition on grounds
that the juvenile court lacked jurisdiction under the UCCJEA. The juvenile
court refused. The court admitted that the Department “took custody of
[Child] under less-than-ideal facts” and that Child “was not physically
present [in Arizona] at the time the initial order was issued.” But the court
found it had jurisdiction and denied Father’s motion to dismiss “because
Ohio has declined to exercise jurisdiction on the ground that Arizona is the
more appropriate forum.”

¶11 Father petitioned for special action relief. In its response to
Father’s petition, the Department conceded that “[t]he juvenile court . . .
lacked jurisdiction to enter the orders regarding [Child’s] custody, and
those orders are void.” The Department explained that Child “was not
present in Arizona until on or about August 17, after the court had entered
the August 14 and 15 orders regarding her custody. In fact, [Child] is now
present in Arizona due only to those orders.”

¶12 We agreed the juvenile court lacked jurisdiction. We issued
an order accepting special action jurisdiction, vacating the superior court’s
orders, requiring the Department return Child to Ohio, and indicating an
opinion would later issue.

JURISDICTION

¶13 Arizona Rule for Special Action Procedure 3 lists those
questions appropriate for special action review. When a party raises one of
those questions, special action review is still unavailable “where there is an
equally plain, speedy, and adequate remedy by appeal[.]” Ariz. R.P. Spec.
Act. 1(a). Even if a party raises a proper question, and does not have an
equally plain, speedy, and adequate appellate remedy, whether to accept
jurisdiction remains “highly discretionary.” See King v. Super. Ct., 138 Ariz.
147, 149 (1983); State Bar Comm. Notes, Ariz. R.P. Spec. Act. 3.

¶14 Special action jurisdiction is appropriate here. Father argues
the juvenile court could not exercise jurisdiction over Child, an issue
appropriate for special action review. See Ariz. R. P. Spec. Act. 3(b)
(“Whether the defendant has proceeded . . . without or in excess of
jurisdiction or legal authority[.]”). Whether the juvenile court had
jurisdiction is a pure issue of law. Moreover, temporary emergency orders
are not final or appealable, and this Court has concluded that special action

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Opinion of the Court

review is justified to determine whether the juvenile court has temporary
emergency jurisdiction to issue such orders. Madison C. v. Marwil, 255 Ariz.
244, ___ ¶ 17 (App. 2023) (“Whether a superior court errs by exercising
temporary emergency jurisdiction over a child is . . . likely to evade
appellate review.”). The petition also presents a question of statewide
concern—does the UCCJEA give the juvenile court jurisdiction after an
infant is transported from the child’s home state to Arizona based on a void
custody order? So we exercise our discretion to accept jurisdiction.

DISCUSSION

¶15 The Department serves an important public function:
protecting Arizona’s children. A.R.S. § 8-451(B). Toward that end, the
legislature has tasked the Department with, among other responsibilities,
responding to reports of child abuse or neglect and ensuring children
remain in a “safe and stable” environment while “strengthen[ing] the
family.” Id. But like all state agencies, the Department is not vested with
unlimited power to attain the ends with which it is tasked—there are limits.

¶16 The same goes for the juvenile court, which may exercise
jurisdiction only when constitutional or statutory text grants it. Ariz. Const.
art. VI, § 15; In re Stephanie N., 210 Ariz. 317, 319 ¶ 11 (App. 2005) (the
juvenile court may exercise jurisdiction only “within the terms of the
applicable statutes”). Thus, the jurisdictional issue presented “requires us
to determine the meaning of the words the legislature chose to use.” S. Ariz.
Home Builders Ass’n v. Town of Marana, ___ Ariz. ___, 522 P.3d 671, 676 ¶ 31
(2023). “We do so . . . according to the plain meaning of the words in their
broader statutory context, unless the legislature directs us to do otherwise.”
Id.

¶17 We review de novo whether the juvenile court had subject
matter jurisdiction under the UCCJEA. Gutierrez v. Fox, 242 Ariz. 259, 264
¶ 17 (App. 2017). If the juvenile court acted without jurisdiction, any
resulting orders are void. Denia L. v. Dep’t of Child Safety, 248 Ariz. 36, 39 ¶
11 (App. 2019).

I.

¶18 The juvenile court’s jurisdiction is generally (although not
entirely) laid out in Title 8 of the Arizona Revised Statutes. We start with a
provision in Title 8 aptly named, “Jurisdiction of juvenile court.” It broadly
grants (with one exception irrelevant here) the juvenile court “exclusive
original jurisdiction over all proceedings brought under the authority of”

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Opinion of the Court

Title 8. See A.R.S. § 8-202(B). That provision, therefore, requires us to travel
elsewhere in Title 8 to determine if the juvenile court had “authority” here.

¶19 Title 8 gives the juvenile court authority, in response to a
dependency petition, to authorize the Department “to take temporary
custody of a child” if the court finds probable cause to believe such custody
is needed “to protect the child from suffering abuse or neglect and it is
contrary to the child’s welfare to remain in the home.” A.R.S. § 8-821(B). If
the court authorizes the Department to take temporary custody, the court
must quickly hold a hearing to decide whether custody is “clearly necessary
to prevent abuse or neglect” during the ensuing dependency proceedings.
A.R.S. §§ 8-824(A), 8-825(C). The juvenile court, here, operated within the
bounds of these provisions—it authorized temporary custody and quickly
held a hearing. But there should have been more to the court’s
jurisdictional inquiry before allowing the Department to take custody of
Child and move her out of Ohio, or to keep her here after that occurred.

II.

¶20 When child custody is involved, particularly involving a child
in another state, there are additional jurisdictional constraints the juvenile
court must consider. The court’s jurisdictional analysis must extend to Title
25, which contains the UCCJEA. See Tracy D. v. Dep’t of Child Safety, 252
Ariz. 425, 429 ¶ 11 (App. 2021). The UCCJEA determines when a superior
court has jurisdiction to make an initial custody determination, including
in a dependency action. See A.R.S. § 25-1002(4)(a) (defining “child custody
proceeding” to include “a proceeding for . . . dependency”). Since 2000,
Arizona has been a signatory to the UCCJEA, which has been adopted in 49
states (Massachusetts being the lone exception). See Sha’quia v. Dep’t of Child
Safety, 251 Ariz. 212, 214 ¶ 9 (App. 2021). The UCCJEA is “designed to
prevent competing and conflicting custody orders by courts in different
jurisdictions” that could result in “unilateral removals of children from or
to various jurisdictions.” Angel B. v. Vanessa J., 234 Ariz. 69, 72 ¶ 8 (App.
2014). The Arizona legislature codified the UCCJEA in Title 25, making it
effective as of January 1, 2001. See A.R.S. §§ 25-1001 to -1067. After its
adoption in Arizona, the UCCJEA became “the requisite jurisdictional basis
for making an initial custody determination.” Madison C., 255 Ariz. at ___
¶ 19.

¶21 Under the UCCJEA, much of the jurisdictional analysis turns
on the child’s “home state.” See A.R.S. § 25-1031(A)(1). Arizona courts have
jurisdiction to make an initial custody determination when Arizona is “the
home state of the child” when the proceeding at issue begins. Id.; A.R.S. §

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Opinion of the Court

25-1002(5); see also David S. v. Audilio S., 201 Ariz. 134, 136 ¶ 6 (App. 2001)
(explaining that jurisdiction is determined at “the commencement of the
proceedings”). When a child is less than six months old, the child’s “home
state” is “the state in which the child lived from birth with a parent or
person acting as a parent.” A.R.S. § 25-1002(7)(b).

¶22 There are two other times when the UCCJEA allows the
juvenile court to make an initial custody determination. First, Arizona
courts have jurisdiction when the child has no home state or the court in the
child’s home state declines jurisdiction because Arizona is the most
appropriate forum and two other requirements are met—a significant
connection and substantial evidence requirement. A.R.S. § 25-1031(A)(2).
Second, Arizona courts can make an initial custody determination when all
courts have declined jurisdiction because Arizona is the more appropriate
forum. A.R.S. § 25-1031(A)(3).

¶23 Even without jurisdiction to make an initial custody
determination, the UCCJEA permits the juvenile court to issue temporary
emergency orders (what the UCCJEA calls “temporary emergency
jurisdiction”) when a child has been abandoned or to protect a child from
actual or threatened mistreatment. A.R.S. § 25-1034(A); see also Madison C.,
255 Ariz. at ___ ¶ 23 (concluding that, where the child’s home state was
Arkansas, “the superior court had to apply Section 25-1034(A)”). But for
the juvenile court to issue temporary orders, the child must be “present in
this state.” A.R.S. § 25-1034(A).

III.

¶24 Turning to the circumstances in this case, the juvenile court
lacked jurisdiction under the UCCJEA to make an initial custody
determination. The Department commenced these proceedings with its
first ex parte custody motion on August 14, 2023, which became the
pertinent date for jurisdiction. On that date, Child lived in Ohio and had
done so since birth, making Ohio her home state, not Arizona. See A.R.S. §
25-1002(7)(b). The Department repeatedly admitted as much in its filings
in the juvenile court. For example, the Department’s response to Father’s
motion to dismiss said, “The Department acknowledges that Arizona was
not [Child’s] home state on the date of the commencement of the
proceeding.” That acknowledgement should have ended the juvenile
court’s initial custody inquiry.

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Opinion of the Court

¶25 But the superior court thought it could make an initial
custody determination because judges in Ohio declined to accept
jurisdiction. That was wrong for two reasons.

¶26 First, the timing was off. Jurisdiction must exist when
proceedings start. See David S., 201 Ariz. at 136 ¶ 6. In this context, then,
the juvenile court could only determine initial custody if the Ohio courts
had declined jurisdiction prior to the commencement of dependency
proceedings in Arizona. That did not happen—the juvenile court conferred
with the Ohio judges after giving the Department initial custody. No court
in Ohio (or anywhere else) declined jurisdiction prior to the Arizona
proceedings beginning on August 14, 2023.

¶27 Second, important procedures were lacking. Both non-home-
state grounds for initial custody jurisdiction require a foreign court to
decline jurisdiction under A.R.S. §§ 25-1037 or -1038. We focus on § 25-1037
because § 25-1038 involves unjustifiable conduct and is not implicated here.
Section 25-1037 allows a court to decline jurisdiction if it decides the state
where it is located is an inconvenient forum and “a court of another state is
a more appropriate forum.” A.R.S. § 25-1037(A). The statute lists non-
exhaustive factors the court “shall consider” when deciding the appropriate
forum. A.R.S. § 25-1037(B). And the statute says the court “shall allow the
parties to submit information” to aid in the court’s analysis. Id. Ohio, as a
signatory to the UCCJEA, requires the same procedures. See Ohio Rev.
Code Ann. § 3127.21.

¶28 The juvenile court’s discussions with the Ohio judges were
insufficient to trigger jurisdiction because the resulting decisions denying
jurisdiction did not follow the UCCJEA’s procedural requirements for
doing so. There is no indication the Ohio judges had formal proceedings
pending regarding Child or determined within any such proceedings that
Ohio was an inconvenient forum using the factors listed in the UCCJEA. See
A.R.S. § 25-1037(B); Ohio Rev. Code Ann. § 3127.21(B). The Ohio judges
also did not allow Father or the Department to “submit information” to aid
in their analyses. See id. This is not to suggest Arizona courts should nitpick
procedures used by other state courts. But when procedures the UCCJEA
requires are completely missing, another state court’s decision to decline
jurisdiction is insufficient to trigger initial custody jurisdiction when
Arizona is not a child’s home state.

¶29 The juvenile court also lacked temporary emergency
jurisdiction. Recall that such jurisdiction under the UCCJEA requires a
child to be “present in this State.” See A.R.S. § 25-1034(A). Child was not

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Opinion of the Court

present in Arizona on August 14, when the juvenile court issued its first
custody order. Nor was Child present on August 15, when the juvenile
court placed Child in the Department’s custody. Child was not present in
Arizona until August 17, and only then because the Department brought
her here.

¶30 The juvenile court still based jurisdiction on Child’s presence
in Arizona, concluding it had jurisdiction because Child “is residing here
now as a result of the Department obtaining an order to remove her from
Ohio.” Yet, as the Department concedes and we conclude, the court entered
its initial custody orders without jurisdiction—the orders were void. Using
a child’s involuntary presence due to void orders to self-generate
jurisdiction is inconsistent, not only with the text and purpose of the
UCCJEA, but with foundational principles of liberty and due process. No
child should be forcibly moved across the country in the absence of
jurisdiction, and no state agency or court order should use the child’s
resulting presence to later justify jurisdiction. See Burnham v. Super. Ct., 495
U.S. 604, 613 (1990) (observing that, at the time of the Fourteenth
Amendment’s adoption, “[m]ost States . . . had statutes or common-law
rules that exempted from service of process individuals who were brought
into the forum by force or fraud”). The juvenile court erred by concluding
otherwise.

CONCLUSION

¶31 The juvenile court issued orders resulting in the Department
taking a five-day-old child into custody and transporting her from Ohio to
Arizona when the child had never been to Arizona. The court lacked
jurisdiction to do so. We accept special action jurisdiction and grant relief
by vacating the juvenile court’s orders and requiring the Department to
return Child to Ohio.

AMY M. WOOD • Clerk of the Court
FILED: AA

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