Opinion
No. 2 CA-JV 2014-0024
07-30-2014
JOHANA F., Appellant, v. AMBROCIO D., S.A. AND B.A., Appellees.
COUNSEL Law Offices of Joseph Mendoza, P.L.L.C., Sierra Vista By Joseph Mendoza Counsel for Appellant Michael A. Johnson, Tucson Counsel for Appellee Ambrocio D.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Cochise County
No. JD201300069
The Honorable Donna Beumler, Judge
AFFIRMED
COUNSEL Law Offices of Joseph Mendoza, P.L.L.C., Sierra Vista By Joseph Mendoza Counsel for Appellant Michael A. Johnson, Tucson Counsel for Appellee Ambrocio D.
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Appellant Johana F. challenges the juvenile court's order of February 10, 2014, in which the court dismissed the in-home dependency petition she had filed. Finding no error, we affirm.
¶2 In November 2013, Johana filed a petition alleging her children, S.A. and B.A., were dependent. She asserted that the children's father, Ambrocio D., was sexually abusing them and that she was neglecting them based on "her failure to protect the children from their father." She explained that Ambrocio "ha[d] custody of the children" and was seeking an order for their return in Florida courts but the children had been "placed in [her] temporary physical custody" and she was working with the Department of Child Safety (DCS) "in initiating a safety plan." She asked that the juvenile court determine it had jurisdiction over the matter; place the children in the care, custody, and control of DCS; and temporarily place them with her.
The petition indicated Johana was working with the Arizona Department of Economic Security (ADES). Effective May 29, 2014, the Arizona legislature repealed the statutory authorization for Child Protective Services (CPS), formerly a division of ADES, and ADES's administration of child welfare and placement services under title 8 and transferred powers, duties, and purposes previously assigned to those entities to the newly established Department of Child Safety. See 2014 Ariz. Sess. Laws 2d Spec. Sess., ch. 1, §§ 6, 20, 54. For simplicity, our references to DCS in this decision encompass both ADES and the former CPS.
The record before us suggests that, contrary to Johana's assertions, DCS had informed her in April 2013 that Florida "maintain[ed] jurisdiction" and it was therefore closing its case. DCS has not appeared in this proceeding.
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¶3 The juvenile court set an initial dependency hearing, and counsel for Ambrocio appeared at the time set, stating that Ambrocio had not accepted service and arguing that Florida had jurisdiction over the matter under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The court ordered the parties to file written briefs on the question of jurisdiction and the applicability of the UCCJEA to dependency matters. After reviewing those briefs and hearing argument from counsel on the matter, the court dismissed the petition, concluding the UCCJEA applied and it therefore lacked jurisdiction. This appeal followed.
¶4 On appeal, Johana argues the juvenile court erred in dismissing her petition because the juvenile court has "original and exclusive jurisdiction for dependency matters under title 8 of the Arizona Revised Statutes." She also argues the UCCJEA is "preempted by" the federal Parental Kidnapping Protection Act (PKPA). "We review the 'decision to dismiss a case for lack of jurisdiction' de novo." Ariz. Dep't of Econ. Sec. v. Grant, 232 Ariz. 576, ¶ 5, 307 P.3d 1003, 1006 (App. 2013), quoting Guminski v. Ariz. State Veterinary Med. Examining Bd., 201 Ariz. 180, 182, ¶ 9, 33 P.3d 514, 516 (App. 2001).
¶5 Johana's arguments that the UCCJEA does not apply to dependency proceedings under Arizona law are without merit. Section 25-1033, A.R.S., prohibits a court of this state from modifying a child custody determination made by the court of another state except in an emergency as defined in § 25-1034, A.R.S., or under certain other conditions not alleged to exist here. Section 25-1002(4)(a), A.R.S., defines "[c]hild custody proceeding" to include a proceeding for dependency. And, this court has acknowledged the application of the UCCJEA in such cases. See Grant, 232 Ariz. 576, ¶¶ 5-12, 307 P.3d at 1006-08; Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, ¶ 11, 119 P.3d 1034, 1036-37 (App. 2005). Although § 8-202(B), A.R.S., provides that the "juvenile court has exclusive original jurisdiction over all proceedings" involving juveniles, this does not alter Arizona's adherence to the UCCJEA, which it also has adopted. Cf. State v. Marks, 186 Ariz. 139, 141-42, 920 P.2d 19, 21-22 (App. 1996) (§ 8-202 departmentalizes superior court as to juvenile cases).
¶6 We also reject Johana's argument that the UCCJEA is "preempted by the PKPA."
State law is preempted by federal law in three instances: (1) express preemption, when Congress explicitly defines the extent to which an enactment preempts state law; (2) field or implied preemption, when state law regulates conduct in a field Congress intended the federal government to occupy exclusively; and (3) conflict preemption, when state law actually conflicts with federal law.Hutto v. Francisco, 210 Ariz. 88, ¶ 7, 107 P.3d 934, 936 (App. 2005). Johana apparently asserts that conflict preemption applies here, summarily stating, "the UCCJEA, where it conflicts with the PKPA, the PKPA must control."
¶7 The authority Johana cites in support of this position actually suggests preemption would not apply. The court in In re Higera N. noted that the PKPA had not included "child protection actions" within its definition of "custody proceeding," suggesting such actions "are not custody proceedings when applying the PKPA." 2 A.3d 265, ¶¶ 16-17 (Me. 2010). Rather, the Higera court concluded the PKPA applied to custody disputes between private parties and did not apply when states were seeking to protect a child from abuse or neglect. Id. ¶¶ 18-20. Likewise, in In re L.W., the Nebraska Supreme Court determined the PKPA did not apply to "child neglect and dependency proceedings." 486 N.W.2d 486, 50001 (Neb. 1992). Contrary to Johana's contention, the fact that the PKPA does not apply to dependencies indicates there is no conflict —the terms of the UCCJEA apply in dependency proceedings and the PKPA does not.
¶8 Johana's reliance on In re Sayeh R., also is misplaced because in that case, the New York Court of Appeals noted that New York had excluded "child protective proceedings from its definition of 'custody proceeding'" under the UCCJEA as it had adopted it. 693 N.E.2d 724, 727 (N.Y. 1997); see also N.Y. Dom. Rel. Law § 75-a(4) (2002). Such is not the case in Arizona. § 25-1002(4)(a).
¶9 Likewise, we disagree with Johana's policy arguments in which she apparently maintains that the UCCJEA will prohibit a juvenile court from dealing with abuse against children because a family law court has issued a ruling in a custody matter. But merely because a Florida court has issued a custody ruling, does not mean a Florida court could not also address abuse issues if properly raised in that state. Thus, the juvenile court's determination that Arizona lacks jurisdiction in this matter does not preclude protection of the children, rather it merely requires that the courts of another state, by all accounts equally competent to rule on matters of child safety, rule on the matter. For all these reasons, we conclude the juvenile court properly determined it lacked jurisdiction over this matter under the terms of the UCCJEA.
¶10 Asserting Johana's appeal is "clearly frivolous and/or taken solely for the purpose of delay," Ambrocio has requested an award of attorney fees pursuant to Rule 25, Ariz. R. Civ. App. P. "The line between an appeal which has no merit and one which is frivolous is very fine, and we exercise our power to punish sparingly." Hoffman v. Greenberg, 159 Ariz. 377, 380, 767 P.2d 725, 728 (App. 1988). In this case, although we find Johana's claims without merit, we cannot say she has crossed that fine line. We therefore deny Ambrocio's request.
¶11 The juvenile court's order dismissing the dependency petition is affirmed.