                                  IN THE
                ARIZONA COURT OF APPEALS
                              DIVISION TWO


            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
                           Filed May 5, 2014


                      Special Action Proceeding
                   Pima County Cause No. JD193361

         JURISDICTION ACCEPTED; RELIEF GRANTED


                                COUNSEL

Thomas C. Horne, Arizona Attorney General
By Dawn R. Williams, Assistant Attorney General, Tucson
Counsel for Petitioner

Peter G. Schmerl, P.C., Tucson
By Peter G. Schmerl
Counsel for Real Party in Interest J.P.
              ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                        Opinion of the Court

Pima County Office of Children’s Counsel, Tucson
By Sara E. Goldfarb
Counsel for Real Party in Interest J.P.


                             OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Miller and Judge Brammer1 concurred.


V Á S Q U E Z, 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

      1 The   Hon. J. William Brammer, Jr., a retired judge of this
court, is called back to active duty to serve on this case pursuant to
orders of this court and the supreme court.
      2 To preserve their anonymity, we hereinafter refer to J.P.
represented by Schmerl as John and J.P. represented by Goldfarb as
James.


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            ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                      Opinion of the Court

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 A.R.S. § 8-
872(A) and that such a course of action violates the ICPC.” The
respondent denied the motion, noting the superior court’s inherent
power to act sua sponte and the fact that all parties had received
adequate notice of a guardianship proceeding. The respondent
further noted that “[a]bsent objection of any party . . . the potential
guardian may be granted intervener status with her consent at the
[scheduled] hearing.”

¶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


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             ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                       Opinion of the Court

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 A.R.S. § 8-
235, this matter presents “a significant issue of law that may be
decided as well now as in a later appeal” in order to avoid a delay in
the children’s possible placement, J.A.R. v. Superior Court, 179 Ariz.
267, 273, 877 P.2d 1323, 1329 (App. 1994).

                              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.”


      3The    juvenile court relied on San Diego County Department of
Social Services v. Superior Court, 919 P.2d 1329 (Cal. 1996). There, the
California Supreme Court held the juvenile court erred by refusing
to schedule a hearing on adoption in place of long-term foster care
placement unless a petition for modification based on changed
circumstances was filed. Id. at 1336. But the court based its holding
on Rule 1466(b), Cal. R. Ct., which it observed did not prohibit the
juvenile court from considering, sua sponte or on request of a party,
the continuing propriety of long-term foster care placement at
regularly scheduled review hearings even in the absence of a
petition for modification. San Diego Cnty. Dep’t of Soc. Servs., 919
P.2d at 1334 (Rule 1466(b) has been renumbered to Rule 5.740(b),
Cal. R. Ct.).

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             ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                       Opinion of the Court

¶9            The jurisdiction of the juvenile court is provided by
statute. Pursuant to article VI, § 15 of the Arizona Constitution,
“[t]he jurisdiction and authority of the courts of this state in all
proceedings and matters affecting juveniles shall be as provided by
the legislature or the people by initiative or referendum.” Thus,
although a juvenile court has jurisdiction over permanent
guardianship proceedings under A.R.S. §§ 8-871 through 8-874,
those proceedings and the court’s jurisdiction over them are
circumscribed by statute. See In re Stephanie N., 210 Ariz. 317, ¶¶ 10-
12, 110 P.3d 1280, 1282 (App. 2005) (when court’s authority created
by statute, it “must be exercised within the terms of the applicable
statutes”).

¶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 § 8-871(A)(2). The
procedure by which a court may establish a permanent
guardianship under § 8-871, however, is set forth in § 8-872. That
section provides that “[a]ny party to a dependency proceeding may
file a motion for permanent guardianship” and sets forth the
requirements for such a motion, including that it be verified and
contain various facts about the prospective guardian, the child, and
their relationship. § 8-872(A). The party filing the motion also is
required to “serve notice of the hearing and a copy of the motion.”
§ 8-872(B). And, the party who files the motion “has the burden of
proof” in subsequent hearings on the motion.5 § 8-872(F).


      4The  children here have not been living with Falicia, and the
respondent judge has made no ruling as to good cause for waiving
that requirement.
      5As  ADES points out, this statutory procedure constitutes a
change from that provided in the former statutory scheme, which
permitted anyone to file a petition for a permanent guardianship,
outside of a dependency proceeding. 1999 Ariz. Sess. Laws, ch. 81,
§ 4.


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            ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                      Opinion of the Court

¶11           In keeping with the above statutory scheme, the
Arizona Rules of Procedure for the Juvenile Court provide that if a
juvenile court “determines that the establishment of a permanent
guardianship is in the best interests of a dependent child, the court
shall order that a motion for guardianship be filed by” ADES or “the
child’s attorney or guardian ad litem.” Ariz. R. P. Juv. Ct. 61(A).
Nothing in the rules provides a court with authority to proceed on
its own motion; rather, Rule 61 directs a court to order a motion to
be filed as required by statute.

¶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.




                                   6
           ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                     Opinion of the Court

¶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



      6Pursuant   to Rule 37(A), Ariz. R. P. Juv. Ct., a “party” to a
dependency action includes “any person or entity who has been
permitted to intervene pursuant to Rule 24, Ariz. R. Civ. P.”
Rule 24(c) requires that a person seeking to intervene “serve a
motion to intervene upon the parties as provided in Rule 5,” Ariz. R.
Civ. P. ADES apparently objected to Falicia “being granted party
status” at the November 19 hearing, but the basis for that objection
is unclear, and ADES makes no argument relating expressly to
intervention in its petition for special action. We therefore do not
address the propriety of the intervention.
      7ADES   advised this court during oral argument that it had
made a second ICPC request at the juvenile court’s instruction and
that the Kentucky authorities again denied the request.


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            ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                      Opinion of the Court

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 A.R.S. § 8-548. Article III of § 8-548 mandates:

                   (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 § 8-548 art. VIII(a). Regulation 3(3)(c) also allows certain
relatives or a non-agency guardian to request a placement in a
receiving state with another relative or non-agency guardian
without ICPC protection, but the sending guardian must have legal
rights to plan for the child established by law “prior to initiation of



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              ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                        Opinion of the Court

the placement arrangement.” On the record before us, none of the
relative-related exceptions apply here.

¶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 A.R.S. §§ 8-871(D) (permanent guardian
vested with rights and responsibilities), 14-5209(C)(2) (guardian may
establish child’s residence outside state); cf. A.R.S. § 13-1302(A)
(custodial interference). Thus, we agree with the Oregon Supreme
Court’s reasoning and conclusion in State ex rel. Juvenile Department
of Curry County v. Campbell that when a permanent guardianship is
granted to a person who lives in another state, the court granting
that guardianship is a “sending agency”8 that causes the child to be
brought into the receiving state. 36 P.3d 989, 992-93 (Or. 2001). By
its terms, as outlined above, the requirements of the ICPC apply to
such a situation.9

¶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 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 possible adoption,’”
and that such placement therefore was not subject to the ICPC. 934
F.2d at 481.



      8 The  definition of a “[s]ending agency” under the ICPC
includes “a court of a party state.” § 8-548 art. II(b).
      9At  oral argument before this court, John’s attorney conceded
that if the juvenile court placed John with Falicia it would, as the
situation now stands, violate the plain language of the ICPC.


                                  9
            ARIZ. DEP’T OF ECON. SEC. v. STANFORD
                      Opinion of the Court

¶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 protect
children by making certain they are placed in a safe environment.”
200 Ariz. 74, ¶ 22, 22 P.3d at 521. As ADES points out here, absent
Kentucky’s cooperation through the ICPC, it will be extremely
difficult for the requirements of § 8-872 to be complied with. That
statute requires an investigation to determine “whether the
prospective permanent guardian or guardians are fit and proper
persons,” § 8-872(E), and “a report and review” within a year of the
entry of the guardianship order, § 8-872(I). Absent compliance with
the ICPC, it is unclear how such proceedings could occur effectively
or how the safety and best interests of the children could be ensured.

¶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,” Ariz. R. P. Spec. Actions 3(b), by
considering a sua sponte motion for permanent guardianship, we
grant ADES relief by vacating the respondent’s own motion for
permanent guardianship made on September 25, 2013. Accordingly,
we order further proceedings consistent with this opinion.

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