IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DEPARTMENT OF CHILD SAFETY, Petitioner,

v.

THE HONORABLE KATHRYN STOCKING-TATE, Judge of the 

SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County 

of YUMA, Respondent Judge,

MARK R., M.S., and L.R.-S., Real Parties in Interest.

No. 1 CA-SA 19-0001 

Petition for Special Action from the Superior Court in Yuma County

No. S1400JD20180551, S1400JD20180552

The Honorable Kathryn E. Stocking-Tate, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Arizona Attorney General’s Office, Tucson

By Dawn Rachelle Williams

Counsel for Petitioner

Law Office of Denise-Avila Taylor, Yuma

By Denise Avila-Taylor

Counsel for Real Party in Interest Mark R.

Law Office of Heather C. Vinci, P.L.L.C, Yuma

By Heather C. Vinci

Counsel for Real Parties in Interest M.S. and L.R.-S.

FILED 6-14-2019
2

OPINION

Judge Kenton D. Jones delivered the Opinion of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Chief Judge Samuel A. 

Thumma joined.

J O N E S, Judge:

¶1 The Department of Child Safety (DCS) seeks special action 

review of a juvenile court order granting a motion by Mark R. (Father) to 

strike an ex parte order authorizing DCS to take temporary custody of two 

young children. In our discretion, we accept special action jurisdiction and 

hold that the legal standard to be applied to a motion challenging 

temporary custody depends upon the timing of the motion. Because the 

court applied an incorrect legal standard here, we grant relief and vacate 

the order granting Father’s motion.

FACTS AND PROCEDURAL HISTORY

¶2 On October 26, 2018, M.S., an Indian child, was born 

substance-exposed. At the same time, her mother (Mother) tested positive 

for methamphetamine. Two days later, DCS filed an electronic application 

and sworn declaration in Maricopa County Superior Court seeking an ex 

parte order authorizing it to assume temporary custody over M.S. and his 

eighteen-month-old sister, L.S.-R. (collectively, the Children). See Ariz. Rev. 

Stat. (A.R.S.) § 8-821(B)1 (authorizing temporary custody where, “on a 

sworn statement or testimony,” the court finds “probable cause exists to 

believe that temporary custody is clearly necessary to protect the child from 

suffering abuse or neglect and it is contrary to the child’s welfare to remain 

in the home”); Ariz. R.P. Juv. Ct. 47.3(A) (“On application under oath . . . , 

the court will determine whether to authorize [DCS] to take temporary 

custody of a child.”). 

¶3 After considering DCS’s application and sworn declaration, 

the superior court found it “contrary to the [C]hildren’s welfare to remain” 

with Mother and Father and that “temporary custody was necessary to 

 

1 Absent material changes from the relevant date, we cite the current 

version of rules and statutes.
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

3

prevent imminent physical damage or harm to the [C]hildren.” Thus, on 

October 28, 2018, the court found probable cause “to believe that temporary 

custody is clearly necessary to protect” the Children and issued an ex parte

order authorizing DCS to take temporary custody of the Children.

2

¶4 DCS took custody of the Children, and, on October 31, 2018, 

filed a verified petition in Yuma County Superior Court alleging the 

Children were dependent as to Mother and Father based upon substance

abuse and neglect. After reviewing the petition, the juvenile court found it 

would be contrary to the Children’s welfare to place them with Mother and 

Father and issued a separate order, on November 1, authorizing DCS’s 

temporary custody of the Children. See A.R.S. § 8-821(B) (authorizing 

temporary custody where, “on a dependency petition filed . . . under oath,” 

the court finds “probable cause exists to believe that temporary custody is 

clearly necessary to protect the child from suffering abuse or neglect and it 

is contrary to the child’s welfare to remain in the home”); Ariz. R.P. Juv. Ct. 

48(B) (“Upon the filing of a [dependency] petition, the court may issue 

temporary orders necessary to provide for the safety and welfare of the 

child.”). The court also scheduled and held a preliminary protective 

hearing (PPH) on November 6. Although Father did not appear, at the 

conclusion of the PPH, the court issued a third order finding temporary 

custody was necessary to prevent abuse and neglect and that return of the 

Children to Mother and Father was contrary to their best interests. See Ariz. 

R.P. Juv. Ct. 50(A) (“At the [PPH], the court shall determine whether 

continued temporary custody of the child is necessary and shall enter 

appropriate orders as to custody . . . .”).

¶5 Three days later, Father personally appeared before the 

juvenile court at the initial dependency hearing (IDH). Although given the 

opportunity to do so, Father did not challenge the orders authorizing 

temporary custody of the Children at the IDH. At the conclusion of the 

hearing, the court again found “temporary custody [with DCS] is necessary 

to prevent abuse or neglect and return of the Children to the Parents . . . is 

contrary to the best interest[s] of the Children” and issued a fourth order 

authorizing temporary custody on November 9, 2018. See Ariz. R.P. Juv. 

Ct. 52(D)(6) (“At the conclusion of the [IDH] the court shall . . . [a]ffirm prior 

orders making the child a temporary ward of the court[.]”).

¶6 On November 27, 2018, Father filed a motion to return the 

Children to his care, arguing that the October 28 application and sworn 

 

2 The ex parte order also authorized removal of three of the Children’s 

half-siblings who are not at issue here.
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

4

declaration in support of DCS’s request for the original ex parte temporary 

custody order “d[id] not set forth sufficient facts to support findings of 

probable cause” to remove the Children from his care. In response, DCS 

asked the juvenile court to set an evidentiary hearing pursuant to Arizona 

Rule of Procedure for the Juvenile Court (Rule) 59. See Ariz. R.P. Juv. Ct. 

59(E)(1) (authorizing the juvenile court to return a child to a parent upon 

request made after the PPH if it finds, “by a preponderance of the evidence, 

that return of the child would not create a substantial risk of harm to the 

child’s physical, mental or emotional health or safety”). The court held oral 

argument on December 31 but did not apply Rule 59 or require Father to 

show the Children would be safe in his care; nor did the court allow DCS

to present evidence regarding the need for continued out-of-home care. 

Instead, the court found the application and declaration in support of the 

ex parte order deficient and ordered the Children returned to Father. This 

Court stayed the return order pending resolution of the special action.

JURISDICTION

¶7 This Court has discretion to accept special action jurisdiction

and will generally do so when there is no equally plain, speedy, and 

adequate remedy by appeal and the case presents purely legal issues, issues 

involving a matter of first impression, or issues of statewide importance. 

See Ariz. R.P. Spec. Act. 1(a); Glenn H. v. Hoskins, 244 Ariz. 404, 407, ¶ 7 

(App. 2018) (quoting State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8 

(App. 2001)). Invoking “[s]pecial action jurisdiction is also appropriate to 

prevent the superior court from acting without jurisdiction.” Glenn H., 244 

Ariz. at 407, ¶ 7 (citing Caruso v. Superior Court, 100 Ariz. 167, 170 (1966)).

¶8 The appropriate mechanism to challenge a temporary 

custody order presents a novel legal question of statewide importance. 

Accordingly, we accept jurisdiction of DCS’s petition.

DISCUSSION

¶9 DCS argues the juvenile court failed to comply with 

applicable law when considering Father’s motion. To resolve this issue, we

interpret and apply the statutes and procedural rules governing temporary 

custody orders, a task undertaken de novo. See Logan B. v. DCS, 244 Ariz. 

532, 537, ¶ 12 (App. 2018) (citing Premier Physicians Grp., P.L.L.C. v. Navarro, 

240 Ariz. 193, 194-95, ¶ 6 (2016), and Valerie M. v. Ariz. Dep’t of Econ. Sec., 

219 Ariz. 155, 161, ¶ 19 (App. 2008)). If the rules and statutes are clear and 

unambiguous, we apply the plain meaning as written. Id. (quoting State v. 

Burbey, 243 Ariz. 145, 147, ¶ 7 (2017)).
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

5

¶10 Until recently, DCS assumed temporary custody over a child 

using a DCS-issued “temporary custody notice” that involved no advanced 

court review or approval. See, e.g., Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 

Ariz. 39, 41, ¶ 5 (App. 2008); Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 

155, ¶ 4 (App. 2000). In 2017 and 2018, in response to litigation in federal 

court concerning the constitutionality of removing a child from a parent’s 

care without judicial authorization, see Rogers v. Cty. of San Joaquin, 487 F.3d 

1288, 1294-96 (9th Cir. 2007) (collecting cases), the legislature amended 

A.R.S. § 8-821(A) to abolish this practice, see 2018 Ariz. Sess. Laws, ch. 191, 

§ 1 (2d Reg. Sess.); 2017 Ariz. Sess. Laws, ch. 282, § 3 (1st Reg. Sess.). Our 

supreme court adopted Rule 47.3, effective July 1, 2018, to implement those 

amendments. 

¶11 Currently, absent exigent circumstances or parental consent, 

DCS may take temporary custody of a child only if it first obtains an ex parte

order authorizing it to do so on the grounds that “probable cause exists to 

believe that temporary custody is clearly necessary to protect the child from 

suffering abuse or neglect.” A.R.S. § 8-821(A)-(B); accord Ariz. R.P. Juv. Ct. 

47.3(B). If the child is an Indian child, the superior court must also find 

“temporary custody is necessary to prevent imminent physical damage or 

harm to the child.” Ariz. R.P. Juv. Ct. 47.3(B). DCS may request such an 

order from Maricopa County Superior Court “[o]n application under oath.” 

Ariz. R.P. Juv. Ct. 47.3(A); accord A.R.S. § 8-821(B); see also Sup. Ct. Admin. 

Dir. No. 2018-06 (requiring all applications for orders authorizing a child’s 

removal to be filed in Maricopa County Superior Court); accord Ariz. R.P. 

Juv. Ct. 47.3(C)(1).

¶12 Father relies exclusively upon principles underlying the 

issuance of criminal warrants to justify his objection to the juvenile court’s 

procedural approach. But, although a criminal warrant and an ex parte

temporary custody order in a dependency proceeding have some 

similarities, they are quite different in practice. Most notably, a criminal 

warrant is not reviewed unless challenged. By contrast, an ex parte order 

authorizing temporary custody either expires automatically if no 

dependency petition is filed, or, if a dependency is initiated, subject to 

automatic, immediate, and continued review and scrutiny. Pursuant to 

Rule 47.3(D)(4), “[t]he temporary custody authorized by the [ex parte] order 

will expire after 72 hours excluding Saturdays, Sundays and holidays 

unless a dependency petition is filed. Ariz. R.P. Juv. Ct. 47.3(D)(4). 

Thereafter, “[t]he court with dependency jurisdiction over the child will 

review continuation of temporary custody as provided in [the Rules].” Id. 

Thus, unlike a criminal warrant, a temporary custody order is subject to 

continuous review by the juvenile court. 
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

6

¶13 The continuous-review process promulgated by our 

legislature and supreme court begins as soon as a child is removed from the 

home:

• Between five and seven days after a child is taken into custody, “[t]he 

court shall hold a [PPH] to review the taking into temporary custody 

of a child pursuant to [A.R.S.] § 8-821.”3 A.R.S. § 8-824(A); see also

Ariz. R.P. Juv. Ct. 50(A) (“At the [PPH], the court shall determine 

whether continued temporary custody of the child is necessary.”); 

accord Ariz. R.P. Juv. Ct. 47.3(D)(4); A.R.S. § 8-829(A)(1).

• After considering the allegations of a verified dependency petition, 

the juvenile court may issue temporary custody orders “necessary to 

provide for the safety and welfare of the child.” Ariz. R.P. Juv. Ct. 

48(B); see also A.R.S. § 8-821(B) (authorizing issuance of a temporary 

custody order based upon review of the dependency petition); Ariz. 

R.P. Juv. Ct. 47.1(A) (directing the court to determine “[i]n the court’s 

first order that sanctions the removal of a child in dependency 

proceedings, whether continuation of the child’s residence in the 

home would be contrary to the welfare of the child. This order may 

 

3 We reject Father’s suggestion that prompt review of temporary 

custody at the PPH violates the directive in the Indian Child Welfare Act 

(ICWA) that “[n]o foster care placement . . . proceeding [for an Indian child] 

shall be held until at least ten days after receipt of notice by the parent.” 25 

U.S.C. § 1912(a); accord Ariz. R.P. Juv. Ct. 48(D)(9); see also 25 U.S.C. 

§ 1903(1)(i) (defining “foster care placement” to mean “any action removing 

an Indian child from its parent . . . for temporary placement in a foster home 

or institution or the home of a guardian or conservator where the parent . . . 

cannot have the child returned upon demand”). The ten-day notice 

requirement does not apply where, as here, the PPH is part of an emergency 

proceeding to protect an Indian child from harm. See Ariz. R.P. Juv. Ct. 48 

cmt. (“When the [PPH] is held as an emergency hearing under [ICWA], the 

10-day notice requirement does not apply.”), 50(A) (“The [PPH] may be 

held as an emergency hearing as provided in [ICWA].”); 25 U.S.C. § 1922 

(“Nothing in [ICWA] shall be construed to prevent the emergency removal 

of an Indian Child . . . under applicable State law, in order to prevent

imminent physical damage or harm to the child.”); 25 C.F.R. § 23.113(b)(3) 

(requiring the state court to continue to assess, as part of the emergency 

proceeding, whether continued temporary custody is necessary to protect 

the child from imminent harm).
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

7

be the temporary order that the court issues on the filing of a 

dependency petition.”).

• Once a dependency petition is filed, “the court shall set the [IDH]

within twenty-one days,” A.R.S. § 8-842(A), at which time it is tasked 

with entering findings and orders concerning the placement and 

custody of the child, Ariz. R.P. Juv. Ct. 52(D)(6) (“At the conclusion 

of the [IDH] the court shall . . . [a]ffirm prior orders making the child 

a temporary ward of the court.”).

• Thereafter, the juvenile court is directed to periodically address 

placement and the need for out-of-home care at the dependency 

adjudication, disposition, and review hearings. See Ariz. R.P. Juv. 

Ct. 55(E)(5) (directing the court to “[e]nter orders concerning the 

placement and custody of the child” at the dependency adjudication 

hearing); Ariz. R.P. Juv. Ct. 56(E)(2) (same at the disposition 

hearing); Ariz. R.P. Juv. Ct. 58(F)(3) (same at review hearings, which, 

pursuant to A.R.S. § 8-847(A), must be held “at least once every six 

months”).

Thus, by rule and statute, temporary custody, even if initiated via an ex parte

order, is reviewed first upon the filing of the dependency petition, a second 

time within five to seven days after the child is taken into custody at the 

PPH, and a third time within twenty-one days after the dependency 

petition is filed at the IDH. The need for continued out-of-home care is then 

reviewed at least once every six months until the dependency is resolved. 

Recurring review of a child’s placement ensures that the court’s orders 

remain in his best interests — a consideration that “permeates dependency 

and severance proceedings.” DCS v. Beene, 235 Ariz. 300, 304, ¶ 9 (App. 

2014) (collecting authority).

¶14 Importantly, the juvenile court does not engage in a perpetual 

review of the same evidence; the record differs — and typically expands —

at each stage of review. While the initial temporary custody order is likely 

based solely upon the application and sworn declaration, see Ariz. R.P. Juv. 

Ct. 47.3(C), the order issued after a dependency petition is filed will be 

based upon the verified allegations in the petition, Ariz. R.P. Juv. Ct. 48(B); 

A.R.S. § 8-821(B), and the orders entered after the PPH, IDH, and review 

hearings may be informed by additional reports, evidence, and testimony, 

see Ariz. R.P. Juv. Ct. 50(B)(4), (6), 51(C), 58(C)-(E). The cumulative nature 

of the review process means the duration of a temporary order may be quite 

brief; each new order necessarily replaces the last as the court gains 

information and perspective. For these reasons, the timing of a parent’s 
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

8

challenge to temporary custody is critical to determining both the record 

upon which the review occurs and the standard to be applied.

¶15 Applying these principles, the original ex parte order 

authorizing temporary custody ceased to be of effect on November 1, 2018,

when the juvenile court approved temporary custody based upon the 

allegations of the verified dependency petition. Therefore, to the extent 

Father’s November 27 motion to return the Children sought to challenge 

the ex parte order, it was untimely and should have been denied.

¶16 Father suggests the juvenile court should treat the November 

27 motion as a challenge to the temporary custody order issued at the PPH 

and governed by Rule 51. Rule 51 directs the court to set an evidentiary 

hearing “to determine whether removal of the child was necessary and 

whether the child should remain in out-of-home placement.” Ariz. R.P. Juv. 

Ct. 51(A). At that hearing, DCS bears the burden of proving “there is 

probable cause to believe that continued temporary custody of the child is 

clearly necessary to prevent abuse or neglect.” Ariz. R.P. Juv. Ct. 51(B). If 

the child is an Indian child, DCS must also prove “by clear and convincing 

evidence . . . that continued custody of the child by the parent or Indian 

custodian is likely to result in serious emotional or physical damage to the 

child” and “that active efforts have been made to provide remedial services 

and rehabilitative programs designed to prevent the breakup of the Indian 

family and that those efforts have proven unsuccessful.” Id.

¶17 By its terms, however, Rule 51 directs the court to conduct a 

hearing “if requested by the parent . . . at the [PPH].” Ariz. R.P. Juv. Ct. 

51(A). Father did not challenge temporary custody at the PPH, and Rule 51 

does not apply. Nor did Father challenge temporary custody at the IDH, 

where he made his first appearance in the case. Because Father expressly 

waived review of temporary custody at the IDH, we need not consider 

whether Rule 51 applies solely to a challenge made at the PPH — as the text 

of Rule 51 provides — or whether it applies more broadly to the hearing at 

which a parent first appears after service is completed.

¶18 Father’s failure to avail himself of Rule 51 does not mean he 

is unable to challenge temporary custody. A parent may still request return 

of a child “[a]t any time after the temporary custody hearing” pursuant to

Rule 59. Rule 59 directs the juvenile court to set an evidentiary hearing on 

the motion within thirty days. Ariz. R.P. Juv. Ct. 59(B). At that hearing, the 

court may return the child to the parent if it finds by a preponderance of 

the evidence that it would not create a substantial risk of harm to the child’s 

physical, mental, or emotional health or safety. Ariz. R.P. Juv. Ct. 59(E)(1);
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

9

see also A.R.S. § 8-861. This procedure was available for disposition of 

Father’s motion, and the court erred in not following these procedures.

¶19 Father suggests the application of these rules and statutes 

results in a manifest injustice. Not so. The focus at each stage of the 

temporary custody inquiry is whether there is a present need for out-ofhome care. This focus is consistent with the directive that, at all stages of 

the removal and dependency proceedings, the paramount concern is the 

child’s health and safety. See Ariz. R.P. Juv. Ct. 36 (“The rules [of procedure 

for the juvenile court] should be interpreted in a manner designed to protect 

the best interests of the child, giving paramount consideration to the health 

and safety of the child.”), 47.1(A) (“If a child has been removed from the 

child’s home by the state authority, the court shall make protecting the child 

from abuse or neglect the first priority.”); accord A.R.S.

§§ 8-821(E), -824(E)(9), -829(A), -843(A), -845(B); see also Ariz. Dep’t of Econ. 

Sec. v. Lee ex rel. Cty. of Maricopa, 228 Ariz. 150, 155, ¶ 23 (App. 2011) (“The 

clear purpose of the governing statutes and Rules demands that, in 

dependency cases, if a child is held in temporary custody, all other 

considerations become subordinate to the child’s health and safety.”). 

“When a state expresses such an interest through particular legislation, its 

policy judgments are entitled to judicial deference.” Lee, 228 Ariz. at 153, 

¶ 13 (quoting Diana H. v. Rubin, 217 Ariz. 131, 136, ¶ 23 (App. 2007)). We 

cannot interpret the rules and statutes in a way that permits the court to 

ignore presently known facts that justify continued out-of-home care and 

remain true to the principle of treating the child’s welfare as paramount. 

See id. at 155, ¶ 23 (concluding DCS’s non-compliance with statutory 

directives did not justify placing a child’s health and safety at risk) (citing 

Hays v. Gama, 205 Ariz. 99, 102-03, ¶ 18 (2003)). For this additional reason, 

the juvenile court erred in focusing solely upon the facial sufficiency of the 

electronic application and sworn declaration to support the by-then defunct 

ex parte temporary custody order, and erred by declining to hear any 

evidence or testimony regarding Father’s present willingness or ability to 

care for them, particularly in light of DCS’s avowals within the dependency 

petition and at the hearing that Father had been neglecting the Children 

and was unable or unwilling to provide them a safe home.

CONCLUSION

¶20 We accept jurisdiction and grant relief. The applicable rules 

and statutes provide a mechanism for review of the propriety of ongoing 

temporary custody through Rules 47.1 (mandating a review and judicial 

determination that out-of-home care is necessary at the court’s first order 

approving the removal of a child), 50 (governing the PPH), 51 (governing 
DCS v. HON. STOCKING-TATE/MARK R., et al.

Opinion of the Court

10

challenges to the temporary custody order), and 59 (governing motions to 

return the child to a parent). Each rule requires the juvenile court to act 

quickly, provides the parent with a reasonable opportunity to present 

argument and evidence in support of his position, and represents a careful 

balance between the competing interests of protecting a child’s health and 

welfare and a parent’s right to custody and control.

¶21 The juvenile court did not follow the prescribed procedures,

and its order striking the original ex parte order authorizing DCS to take 

temporary custody of the Children is vacated. This Court’s order staying 

execution of that order is now moot. The case is remanded for further 

proceedings consistent with this Opinion.