Opinion
No. 1 CA-JV 15-0301
04-12-2016
ESSAM A., Appellant, v. TERRY G., DELORIS G., K.G., Appellees.
COUNSEL Jeffrey M. Zurbriggen, P.C., Phoenix By Jeffrey M. Zurbriggen Counsel for Appellant Law Office of Florence M. Bruemmer, P.C., Anthem By Florence M. Bruemmer Counsel for Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300JD201400086
The Honorable Anna C. Young, Judge
VACATED AND REMANDED WITH INSTRUCTIONS
COUNSEL Jeffrey M. Zurbriggen, P.C., Phoenix
By Jeffrey M. Zurbriggen
Counsel for Appellant Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellees
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Maurice Portley joined. NORRIS, Judge:
¶1 Essam A. appeals from an order declaring K.G. dependent as to him, arguing, inter alia, the superior court did not have jurisdiction to issue this order under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). See Ariz. Rev. Stat. ("A.R.S.") §§ 25-1001 to -1067 (2007). Based on our review of the record, we conclude the superior court failed to make the necessary findings to determine whether it has jurisdiction. Thus, we vacate the dependency order and remand to the superior court with instructions, as discussed more fully below.
FACTS AND PROCEDURAL BACKGROUND
¶2 On October 31, 2012, Samantha G. gave birth to K.G. in California. Guy G. believed he was the father and entered his name on the birth certificate. Samantha then became ill and sent K.G. to live with Guy's parents, Terry G. and Deloris G. ("Grandparents"), in Arizona in April or May 2013. That summer, Essam came to believe he was K.G.'s father, and thus, on October 11, 2013, he petitioned to establish a parental relationship in California ("California case"). The judge in the California case ("California judge") entered a default judgment against Samantha, but later set it aside and ordered K.G. and Essam to submit to a paternity test.
In the superior court, Essam argued K.G. moved to Arizona in May 2013 and Grandparents argued K.G. moved to Arizona on April 2, 2013. The only arguable evidence contained in the record reflecting when K.G. moved to Arizona is an under-oath statement Essam made in a "Form 105," which he attached to his California petition to establish a parental relationship. In the form, Essam stated K.G. moved to Arizona in April 2013. --------
¶3 Samantha died on October 29, 2014. On November 5, 2014, Grandparents filed a private dependency petition against Guy and Essam in the Yavapai County, Arizona superior court ("Arizona case"). At a December 23, 2014 hearing in the Arizona case, Guy admitted to the allegations in the dependency petition, but Essam objected to the superior court's jurisdiction. The parties briefed the jurisdiction issue, disputing when K.G. moved to Arizona, whether Grandparents qualified as "person[s] acting as [] parent[s]," see A.R.S. § 25-1002(13) (Supp. 2015), and whether the California judge had found California was the home state. At a February 2015 hearing, the judge assigned to the Arizona case reported she had spoken to the California judge, who had informed her "that she was not inclined to keep jurisdiction." At the next hearing in March 2015, the superior court ruled that "Arizona is the appropriate jurisdiction for this matter." Despite this ruling, at an April 2015 hearing, the superior court reported she had spoken to the California judge again, who this time "confirmed . . . that California does not have jurisdiction of this matter."
DISCUSSION
¶4 We review a finding of jurisdiction de novo. Angel B. v. Vanessa J., 234 Ariz. 69, 71, ¶ 6, 316 P.3d 1257, 1259 (App. 2014). Under the UCCJEA, an Arizona court has jurisdiction to make an initial child custody determination if Arizona was the "home state" on the date of the commencement of the proceeding or "within six months before the commencement of the proceeding and the child is absent from [Arizona] but a parent or person acting as a parent continues to live in [Arizona]." A.R.S. § 25-1031(A)(1) (2007); see also Welch-Doden v. Roberts, 202 Ariz. 201, 209, ¶ 33, 42 P.3d 1166, 1174 (App. 2002) (UCCJEA gives "priority" to home state jurisdiction). "'Home state' is the state in which the child lived with a parent [or a person acting as a parent] for at least six consecutive months before the filing of a custody petition, or since birth." Angel B., 234 Ariz. at 72, ¶ 19, 316 P.3d at 1260 (citing A.R.S. § 25-1002(7) (2007)).
¶5 If Arizona is not the child's home state, an Arizona court may still exercise jurisdiction if, as relevant here, the court in the child's home state determines it is an inconvenient forum and Arizona would be a more convenient forum. A.R.S. §§ 25-1031(A)(2), -1037 (2007); Angel B., 234 Ariz. at 74, ¶ 17, 316 P.3d at 1262 (California court had to determine whether it was an inconvenient forum and whether Arizona would be a more convenient forum for the Arizona court to exercise jurisdiction). The home state court "shall allow the parties to submit information" and "shall consider all relevant factors," including a specific list of factors. Cal. Fam. Code § 3427(b) (West 2015); A.R.S. § 25-1037. If the home state court declines jurisdiction after determining it is an inconvenient forum, it then "shall stay the proceedings." Cal. Fam. Code § 3427(c); A.R.S. § 25-1037. Furthermore, the courts of the different states may communicate with each other regarding jurisdiction, but, except under circumstances not relevant here, "a record must be made" of their communications. A.R.S. § 25-1010 (2007).
A record includes notes or transcripts of a court reporter who listened to a conference call between the courts, an electronic recording of a telephone call, a memorandum or an electronic record of the communication between the courts, or a memorandum or an electronic record made by a court after the communication.UCCJEA § 110, U.L.A. (1997); see also Angel B., 234 Ariz. at 74, ¶ 17, 316 P.3d at 1262 (remand necessary when record did not reflect a determination by California court that it either no longer had jurisdiction or was an inconvenient forum).
¶6 Here, the superior court found Arizona was the "appropriate jurisdiction" even though Essam had initiated the pending California case almost one year before Grandparents filed the Arizona case. And, although the parties disputed the factual predicate for Arizona being the home state—such as when K.G. moved to Arizona and whether Grandparents were "person[s] acting as [] parent[s]"—the superior court neither resolved these factual disputes nor determined whether Arizona or California was the home state.
¶7 As noted, the superior court discussed jurisdiction with the California judge, and, at one point, reported that the California judge had stated she "was not inclined to keep jurisdiction." This suggests the superior court may have believed California—and not Arizona—was the home state. See A.R.S. §§ 25-1036 (2007), -1037. But the superior court failed to make an adequate record of these discussions, and the record contains no evidence the California judge made the factual determinations required to decline jurisdiction because California was an inconvenient forum. See A.R.S. §§ 25-1010, -1037.
CONCLUSION
¶8 In short, the superior court did not follow the statutorily mandated procedures to determine whether it had or was entitled to exercise jurisdiction over this case. Thus, we vacate the superior court's dependency order, remand to the superior court, and instruct it to make specific factual findings concerning jurisdiction under the UCCJEA on an appropriately developed record based on admissible evidence, not argument. The superior court shall determine whether Arizona or California was the home state, and if it determines California was the home state, it shall then determine whether California has declined jurisdiction. We express no opinion on any of the other arguments raised by the parties on appeal.