Tracy D. v. DCS

Tracy D. v. Dep’t of Child Safety, 1 CA-JV 20-0204, 2021 WL 6139285 (App. Dec. 30, 2021).

This is a juvenile court case but includes a good discussion of UCCJEA jurisdiction and due process requirements for a telephonic evidentiary hearing.

Facts and Procedural History

Mother travelled to Indiana near the end of her pregnancy and gave birth to her daughter, T.D., in early June 2019. Father remained in Arizona during the birth. Mother returned to Arizona with T.D. about seven weeks later. In August 2019, DCS filed a dependency action alleging neglect and substance abuse.

The trial court terminated the parent-child relationship between T.D. and her parents, and both parents appealed. Before the case was fully briefed, the court of appeals stayed the appeal and remanded to allow the trial court to conduct a UCCJEA conference. The trial court determined it had jurisdiction under the UCCJEA (albeit for the wrong reasons).

Ruling

There are four bases for a court to make an initial custody determination under the UCCJEA: (1) home state, (2) significant connection, (3) more appropriate forum, or (4) jurisdiction by default.

Home state

For a child less than six months old, the “[h]ome state” is “the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.”

T.D. was in Indiana for approximately seven weeks after her birth, and Indiana could have exercised jurisdiction at that time. But because T.D. was already living in Arizona when the dependency proceeding commenced, she was no longer living “from birth” in Indiana.

A state may also have jurisdiction if it was “the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”

At the time DCS commenced the dependency proceeding, Mother was no longer living in Indiana and Father still lived in Arizona. There was no parent or person acting as a parent that still lived in Indiana.

Additionally, Mother’s stay in Indiana was not a “temporary absence” from Arizona. “The temporary absence provision of ยง 25-1002(7)(b) comes into play only when a parent temporarily leaves the state where the child was born and then returns to that state.”

Significant connection

If there is no home state (or the home state declined to exercise jurisdiction), a court may exercise jurisdiction if this state is the more appropriate forum, “the child and at least one parent … have a significant connection with this state other than mere physical presence,” and “[s]ubstantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.”

In T.D.’s case, she did not have a signficiant connection to either Indiana or Arizona other than mere physical presence. She lived in Indiana for only seven weeks and Arizona for only three weeks when DCS commenced the dependency proceeding.

More appropriate forum

A court of this state may exercise jurisdiction if the child’s home state declines to exercise jurisdiction because this state is a more appropriate forum. This ground did not apply to T.D. because neither Arizona or Indiana has home state jurisdiction.

Jurisdiction by default

Finally, the court determined that Arizona did have jurisdiction under the UCCJEA because no other state has jurisdiction under any of the first three grounds. Indiana does not have jurisdiction, and Arizona law provides that “[t]he juvenile court [has] exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state.”

Telephonic hearing

The court also determined that the telephonic evidentiary hearing conducted at the beginning of the COVID-19 pandemic met the basic requirements of due process. Generally, due process requires an opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319 (1976).