ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner, v. Hon. K.C. STANFORD, Judge of the Superior Court of the State of Arizona, In and for the County of Pima, Respondent, and J.P., J.P., and Falicia W., Real Parties in Interest.
No. 2 CA-SA 2014-0008
Court of Appeals of Arizona, Division 2
May 5, 2014
323 P.3d 760
Thomas C. Horne, Arizona Attorney General, By Dawn R. Williams, Assistant Attorney General, Tucson, Counsel for Petitioner.
Pima County Office of Children‘s Counsel, By Sara E. Goldfarb, Tucson, Counsel for Real Party in Interest J.P.
Presiding Judge VÁSQUEZ authored the opinion of the Court, in which Judge MILLER and Judge BRAMMER1 concurred.
OPINION
VÁSQUEZ, Presiding Judge.
¶1 In this special action, petitioner Arizona Department of Economic Security (ADES) maintains the respondent judge “act[ed] in excess of his authority when he sua sponte moved to establish a permanent guardianship for” two brothers, J.P. and J.P.2 For the following reasons, we accept jurisdiction and grant relief.
Factual and Procedural Background
¶2 In January 2010, ADES filed a dependency petition, alleging the brothers were dependent as to their mother Stephanie P. In March 2010, they were adjudicated dependent. On February 17, 2012, the parents’ parental rights were severed, and both children were placed with their maternal grandmother, Vickie, who since has died.
¶3 Since that time, the children have been in various placements. A maternal aunt, Falicia, who resides in Kentucky, has cared for them in the past and would like to become their guardian. ADES pursued placement with Falicia, but when Kentucky was requested to conduct a home study, it denied ADES‘s request made pursuant to the Interstate Compact for the Placement of Children (ICPC), citing Falicia‘s husband‘s past criminal history.
¶4 In August 2013, however, John filed a motion to appoint Falicia as his permanent guardian. In its response, ADES argued that under the ICPC a permanent guardianship could not be established with Falicia due to Kentucky‘s denial of placement with her. At a subsequent hearing on September 25, 2013, John withdrew his motion. The respondent judge, however, stated in his minute entry that he would “set a hearing as to granting the guardianship, and ... independently examine the best interest of the minors for an appointment of the maternal aunt as guardian.”
¶5 ADES filed a motion for reconsideration of the “court‘s motion for establishment of a permanent guardianship,” in which it repeated its ICPC concerns and argued the respondent judge “lack[ed] jurisdiction to move for a guardianship under
¶6 At the hearing on November 19, Falicia orally moved to intervene, and the respondent judge granted the motion. According to the minute entry, Falicia also “state[d] her position is that the children should be placed with her.” The respondent received testimony from Falicia on that date and from her and her husband at a continued hearing the following day. According to the minute entry, after the second day of the hearing, the respondent directed ADES “to make another referral for an ICPC for Kentucky to see if Kentucky will look at this a second time” and scheduled further hearings and reviews. This court subsequently granted ADES‘s request to stay those proceedings.
¶7 It is appropriate for us to accept jurisdiction of this special action because the questions presented are purely legal. See Ariz. Dep‘t of Econ. Sec. v. Leonardo, 200 Ariz. 74, ¶ 1, 22 P.3d 513, 514 (App.2001). And, although a final order making Falicia the children‘s permanent guardian would be appealable, see
Discussion
¶8 ADES first challenges the respondent judge‘s “authority to move to establish a permanent guardianship for the children.” As we noted above, after John withdrew his motion requesting that Falicia be appointed permanent guardian, the respondent sua sponte ordered a hearing on guardianship, later characterizing the proceeding at the hearing, in part, as his own “sua sponte motion” for guardianship. When ADES objected, the respondent issued his written ruling, pointing out that all parties had received adequate notice of the date and nature of the hearing and noting a court‘s general powers to act sua sponte in various contexts. He also cited a California case in support of the proposition that “[s]ister state jurisdictions support sua sponte motions in the dependency context.”3 The respondent further stated that the “issue of ICPC preclusions, limitations, circumventions or implications, remain to be argued and addressed at the hearing.”
¶9 The jurisdiction of the juvenile court is provided by statute. Pursuant to
¶10 Section 8–871(A) provides that a court may establish a permanent guardianship if in the child‘s best interests and certain statutory requirements are met. These requirements include that the child be “in the custody of the prospective permanent guardian for at least nine months as a dependent child,” although that requirement may be waived for good cause.4
¶11 In keeping with the above statutory scheme, the Arizona Rules of Procedure for the Juvenile Court provide that if a juvenile
¶12 As the respondent judge noted, a court has certain inherent authority. The juvenile court, in particular, has inherent powers for the protection of children. Cf. Ariz. Dep‘t of Econ. Sec. v. Superior Court, 178 Ariz. 236, 241, 871 P.2d 1172, 1177 (App. 1994) (juvenile court has authority to order ADES substituted as petitioner in dependency action). But, that inherent power exists only to the extent “necessary to the ordinary and efficient exercise of jurisdiction” already established. State ex rel. Andrews v. Superior Court, 39 Ariz. 242, 247-48, 5 P.2d 192, 194-95 (1931) (citation omitted). And, the court‘s discretion to engage in “individualized procedures designed to promote the ends of justice in each case that comes before” it is limited in that such procedures may not be “inconsistent with statutory or constitutional provisions or other rules of the court.” State v. Harlow, 219 Ariz. 511, ¶ 10, 200 P.3d 1008, 1011 (App.2008), quoting State v. Fernandez, 216 Ariz. 545, ¶ 16, 169 P.3d 641, 647 (App.2007).
¶13 In view of the statutory requirements for guardianship proceedings and the related procedural rules, the actions taken by the respondent judge were not a proper exercise of the inherent power of a juvenile court. His actions conflicted with the statutes and rules controlling guardianship proceedings, and, because the statute provides for a guardianship proceeding based only on a motion filed by a party to a dependency proceeding, in the absence of a motion filed pursuant to § 8-872, there was no guardianship proceeding within the respondent‘s jurisdiction. As noted above, a court‘s inherent powers do not extend beyond its jurisdiction. See Andrews, 39 Ariz. at 247-48, 5 P.2d at 194-95.
¶14 In this case, although the record shows Falicia ultimately intervened in the proceedings,6 nothing in the record suggests she has complied with the requirements of § 8-872. And, in no way can the respondent judge‘s “sua sponte motion” be characterized as compliant with the statutory requirements. For these reasons, we agree with ADES that the respondent exceeded his authority in continuing with the guardianship proceedings in the absence of a statutorily compliant motion by a party to the proceedings.
¶15 ADES also argues “[t]he proposed guardianship placement will violate the ICPC.” We agree. And, as noted above, at the hearing on the guardianship, the respondent judge asked ADES to make another ICPC request with Kentucky, indicating that he viewed Kentucky‘s cooperation as necessary to guardianship placement there.7
¶16 The ICPC is an interstate compact that facilitates interstate cooperation in the placement and monitoring of dependent children. Leonardo, 200 Ariz. 74, ¶ 9, 22 P.3d at 516. The ICPC “is geared toward gathering information prior to placement in order to ensure that the sending and receiving states work together to place the child in a good environment, and toward monitoring and providing care for the child following placement.” Id. (citation omitted).
¶17 Arizona is a party to the ICPC, which has been enacted in Arizona as
(b) Prior to sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state.... ....
(d) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.
¶18 Under the ICPC regulations, promulgated by the Association of Administrators of the ICPC (AAICPC) pursuant to article VII of § 8-548, the above terms of the ICPC apply to placement “with parents and relatives” and non-agency guardians, except when a parent or relative also is requesting the placement under certain circumstances. See ICPC Reg. 3(2)(a)(3) and 10(3)(a), available at www.aphsa.org/content/AAICPC/en/ICPCRegulations.html; see also
¶19 Although Falicia would physically remove the children to Kentucky if she were appointed their guardian, she would be able to do so lawfully only because of the respondent judge‘s guardianship order. See
¶20 John, however, argues “[t]he purpose of the ICPC is to assist courts—not hinder them,” as he suggests the ICPC does in this case and urges us to “reconsider” our decision in Leonardo. In that case, this court rejected the conclusion in a Third Circuit Court of Appeals decision, McComb v. Wambaugh, 934 F.2d 474 (3d Cir.1991), that the then-current version of Regulation 3, dealing with the placement of a child with a non-custodial parent, was contrary to the ICPC and, therefore, invalid. Leonardo, 200 Ariz. 74, ¶¶ 21, 22, 22 P.3d at 520. The McComb court reasoned that placement with a parent was outside the scope of article III of the ICPC, which “refers to ‘placement in foster care or as a preliminary to a possible adoption,‘” and that such placement therefore was not subject to the ICPC. 934 F.2d at 481.
¶21 In Leonardo, we rejected the McComb court‘s narrow construction of the ICPC and “agree[d] instead with the majority of jurisdictions that have found the ICPC applicable to out-of-state placement of a child with a non-custodial parent.” 200 Ariz. 74, ¶ 21, 22 P.3d at 520. We see no grounds to depart from our previous decision and decline to do so. Cf. State v. Hickman, 205 Ariz. 192, ¶¶ 37-38, 68 P.3d 418, 426-27 (2003) (explaining respect for precedent requires court not overrule precedent absent compelling reasons, and deference to precedent strongest when prior decision construes statute). As we stated in Leonardo, the ICPC is to be interpreted liberally because “the primary purpose of the ICPC is to
¶22 John also asserts that, despite the clear language of the ICPC, the respondent judge could “use[] judicial discretion to do what was in the minors’ best interests” and “find a way to place them back with their Aunt.” But, as discussed above, the juvenile court‘s jurisdiction is circumscribed by statute and is thus subject to the ICPC. The respondent therefore cannot circumvent the requirements of the ICPC.
Disposition
¶23 For the reasons stated, in our discretion we accept jurisdiction of this special action. Because the respondent judge “has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority,”
GARYE L. VÁSQUEZ
Presiding Judge