David C., Kim C. v. Alexis S., A.C. , 238 Ariz. 174 ( 2015 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DAVID C., KIM C., Appellants,
v.
ALEXIS S., A.C., Appellees.
No. 1 CA-JV 14-0311
FILED 8-27-2015
Appeal from the Superior Court in Maricopa County
No. JA47249
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL
Robert D. Rosanelli, Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellants
David W. Bell, Attorney at Law, Higley
By David W. Bell
Counsel for Appellee Alexis S.
Law Office of Kennedy & West, Phoenix
By Jean W. West
Counsel for Appellee A.C.
DAVID C., KIM C. v. ALEXIS S., A.C.
Opinion of the Court
OPINION
Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.
C A T T A N I, Judge:
¶1 David C. and Kim C. (collectively, “Adoptive Petitioners”)
appeal the juvenile court’s ruling granting Alexis S. (“Biological Father”)’s
motion to set aside their adoption of A.C. Although Biological Father did
not file a notice of claim of paternity with Arizona’s putative fathers
registry, see Ariz. Rev. Stat. (“A.R.S.”) § 8-106.01,1 he timely filed and
actively pursued a paternity action after Adoptive Petitioners served notice
of the adoption proceedings. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Biological Father began a relationship with A.C.’s birth
mother (“Biological Mother”) in October 2012, and they moved in together
two months later. In January 2013, the couple learned that Biological
Mother was pregnant. In early March, however, Biological Mother moved
out. Biological Father tried to stay in touch with her and asked for updates
about the pregnancy, but Biological Mother cut off all contact within days
of leaving. Biological Father contacted Biological Mother’s relatives to
inquire about the pregnancy and stated he was “not letting it go,” but the
relatives did not respond.
¶3 A.C. was born on September 23, 2013. Biological Mother
signed an affidavit of paternity falsely stating that A.C.’s biological father
was unknown, and four days after the birth, she also signed a consent to
adoption in favor of Adoptive Petitioners. A.C. was released from the
hospital into Adoptive Petitioners’ care.
¶4 On October 8, 2013, one of Biological Mother’s relatives
informed Biological Father of A.C.’s birth, and another relative informed
him of Biological Mother’s address in Las Vegas, Nevada later that month.
Meanwhile, Adoptive Petitioners requested a search of Arizona’s putative
1 Absent material revisions after the relevant date, we cite a statute’s
current version.
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fathers registry; the Office of Vital Records returned a certification stating
that, as of October 23, 2013 (30 days after A.C.’s birth), there were no notices
of claims of paternity associated with A.C.
¶5 On November 7, 2013, Biological Father visited Biological
Mother in Nevada and asked about the child. Biological Mother refused to
disclose any information about A.C. other than falsely stating she had given
the child to another man who had proven paternity. Biological Father
checked with several Nevada hospitals, but did not find any information
about A.C.’s birth.
¶6 Less than one week later, on November 12, 2013, Adoptive
Petitioners filed a petition to adopt A.C. Given Biological Mother’s affidavit
stating she did not know the name of any potential father and in the absence
of any putative father filing, Adoptive Petitioners served a John Doe notice
of the pending adoption by publication beginning on November 25, 2013.
¶7 That same day, without knowing about the John Doe notice,
Biological Father filed a paternity suit in family court seeking a finding of
paternity and custody of the child. See A.R.S. tit. 25, ch. 6, art. 1. Biological
Father’s petition listed as “unknown” the child’s name, address, and place
of birth, and listed her date of birth simply as “September 2013.” Biological
Father personally served Biological Mother two days later, but she never
informed Adoptive Petitioners of the paternity suit. On January 6, 2014,
Biological Father sought a default judgment after Biological Mother failed
to respond to the petition, but the family court continued the case on the
inactive calendar because the petition did not contain sufficient information
about the child.
¶8 On January 15, 2014, the juvenile court granted A.C.’s
adoption by Adoptive Petitioners. Adoptive Petitioners had not searched
family court paternity filings, and there is no indication that they knew of
Biological Father’s paternity suit.
¶9 On February 26, 2014, Biological Father learned of the John
Doe notice by publication, and he immediately filed a request for
information in the adoption case. He also used the information in the John
Doe notice to amend his petition in the paternity case. In the following
months, Adoptive Petitioners intervened in the paternity case and moved
to dismiss, Biological Father intervened in the adoption case and moved to
set aside the adoption, and the juvenile court took temporary jurisdiction
over the paternity case pending resolution of the motion to set aside the
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adoption. Paternity testing showed that Biological Father was in fact A.C.’s
father.
¶10 After briefing and argument, the juvenile court granted
Biological Father’s motion to set aside the adoption and ordered the parties
to initiate A.C.’s transition to his care. The court acknowledged that
Biological Father had not filed a notice of claim of paternity with the
putative fathers registry as required by A.R.S. § 8-106.01. Nevertheless, the
court concluded that, because Biological Father had filed a paternity action
and timely served Biological Mother while the adoption was pending, he
was entitled to notice of the adoption proceedings under A.R.S. § 8-111(5),
and that the lack of this statutory notice violated his due process right to
seek to parent his child and deprived the court of jurisdiction to issue the
adoption order.
¶11 Adoptive Petitioners timely appealed from the order setting
aside the adoption, and we have jurisdiction under A.R.S. § 12-2101(A)(2).
DISCUSSION
¶12 We generally review a juvenile court’s decision in an
adoption proceeding for an abuse of discretion. Marco C. v. Sean C., 218
Ariz. 216, 218, ¶ 4, 181 P.3d 1137, 1139 (App. 2008). We similarly review an
order setting aside a judgment for an abuse of discretion, although we
review de novo a decision to set aside a judgment as void. See Martin v.
Martin, 182 Ariz. 11, 14–15, 16, 896 P.2d 11, 14–15, 16 (App. 1994); Duckstein
v. Wolf, 230 Ariz. 227, 231, ¶ 8, 282 P.3d 428, 432 (App. 2012). We review de
novo the interpretation of statutes and rules. Kent K. v. Bobby M., 210 Ariz.
279, 282 n.6, ¶ 8, 110 P.3d 1013, 1016 n.6 (2005).
¶13 Under A.R.S. § 8-106(F)–(G), the mother of a child placed for
adoption must provide for filing with the court a notarized affidavit listing
all potential fathers; each potential father must then be served with notice
of the adoption proceedings. Because Biological Mother falsely swore that
A.C.’s father was unknown, however, the notice of the adoption
proceedings required by A.R.S. § 8-106(G) was served on Biological Father
only by publication as a John Doe notice. That notice, as required by statute,
informed any potential father that he had a right to withhold consent to the
adoption, and that if he chose to withhold consent, it was his responsibility
to initiate and serve Biological Mother with a paternity action within 30
days of completion of service of the John Doe notice, and then to proceed
to a judgment of paternity. A.R.S. § 8-106(G), (I). As required by the statute,
the notice also warned the potential father that if he failed to file a paternity
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action and serve the biological mother as required, he would be “bar[red] .
. . from bringing or maintaining any action to assert any interest in the
child.” See A.R.S. § 8-106(G)(7), (I)(8); see also A.R.S. § 8-106(J) (stating that
failure to timely file and serve a paternity action “waives [a potential
father’s] right to be notified of any judicial hearing regarding the child’s
adoption or the termination of parental rights and his consent to the
adoption or termination is not required”).
¶14 Even though he did not actually know of the John Doe notice
until months later, Biological Father complied with the statutory
requirements set forth in that notice by filing a paternity action the same
day the notice was published and serving Biological Mother two days later,
well within the 30-day time limit. He diligently pursued the paternity
action, and although he had not obtained a judgment of paternity by the
time the adoption was finalized, his inability to do so cannot fairly be
attributed to his actions, but rather to Biological Mother’s refusal to give
him any information about the child. In short, Biological Father did
everything required under § 8-106(G) to assert his parental rights.
¶15 Although Adoptive Petitioners were not aware of the
paternity suit, it was not Biological Father’s obligation to inform them. See
A.R.S. § 8-106(G) (requiring father to file and serve a paternity suit, but
making no mention of contacting adoptive petitioners). Biological Mother
had actual knowledge of both the paternity suit and the adoption
proceedings. Her false swearing in the affidavit of paternity, and her failure
to inform Adoptive Petitioners that she had been served with a paternity
action should not be countenanced and should not be deemed to have
expanded Biological Father’s responsibilities. Adoptive Petitioners
understandably relied on the absence of any filing relating to A.C. in the
putative fathers registry, but they could have searched paternity filings
and, had they done so in this case, likely would have found Biological
Father’s paternity action (naming Biological Mother as the Respondent)
filed in the same county as the adoption proceedings. See A.R.S. § 8-111(5)
(requiring service of notice of any adoption hearing on “[a]ny person who
has initiated a paternity action” under Arizona law); Ariz. R.P. Juv. Ct.
83(A)(3) (requiring that, prior to finalizing an adoption, an adoptive
petitioner must file an affidavit certifying that paternity filings have been
searched “if applicable”).
¶16 Adoptive Petitioners acknowledge that Biological Father
“took certain actions,” but argue that his failure to file a notice of claim of
paternity with Arizona’s putative fathers registry invalidated his efforts to
assert his parental rights through a paternity action. We disagree because
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the putative fathers registry supplements and does not supplant a father’s
right to pursue a paternity action.
¶17 The putative fathers registry allows “[a] person who is
seeking paternity, who wants to receive notice of adoption proceedings and
who is the father or claims to be the father of a child” to independently
ensure that he will receive notice of adoption proceedings without relying
on the biological mother’s statement (or even, as here, outright lies)
regarding the child’s paternity. Compare A.R.S. § 8-106.01(A) (self-reporting
putative fathers) with A.R.S. § 8-106(F) (biological mother’s statement of
potential fathers). The registry must be searched before an adoption can
proceed, see A.R.S. § 8-106.01(H); Ariz. R.P. Juv. Ct. 83(A)(3)–(4), and each
individual who timely files a notice of claim of paternity must be served
with the notice specified in § 8-106(G), see A.R.S. § 8-106.01(G). The registry
thus supplements the notice provisions of § 8-106 as part of a
comprehensive scheme to ensure that biological fathers receive timely
notice of potential adoptions.
¶18 Adoptive Petitioners rely on a single provision of the putative
fathers registry statute stating that a putative father who fails to file with
the registry within 30 days after the child’s birth “waives [the putative
father’s] right to be notified of any judicial hearing regarding the child’s
adoption and his consent to the adoption is not required,” absent a showing
of impossibility to comply with the registry requirements. A.R.S. § 8-
106.01(E); see also Marco C., 218 Ariz. at 219–20, ¶¶ 9–10, 181 P.3d at 1140–
41. But the statute does not vitiate the rights set forth in § 8-106(G).
¶19 Moreover, unlike other provisions in the adoption statutes, §
8-106.01(E) does not restrict a biological father’s right to bring a paternity
action and thus become the child’s legal father as reflected in § 8-
106(A)(2)(c). See, e.g., A.R.S. § 8-106.01(G) (requiring timely-registering
putative father to file a paternity action within 30 days after service of § 8-
106(G) notice of the adoption proceedings or be “barred from bringing or
maintaining any action to assert any interest in the child”); A.R.S. § 8-
106(G)(7) (stating that a potential father’s failure to file, serve, and proceed
to judgment in a paternity action after receiving § 8-106(G) notice “bars the
potential father from bringing or maintaining any action to assert any
interest in the child”). Accordingly, once a potential father receives service
of notice of the adoption proceedings—even if only via John Doe notice by
publication—and complies with the requirements enumerated in that
notice by timely filing, serving, and diligently pursuing a paternity action,
the § 8-106.01(E) waiver provision no longer applies.
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¶20 We recognize that in Marco C., a different panel of this court
reached a contrary conclusion, holding that registering a notice of claim of
paternity one day late rendered a putative father’s consent to his child’s
adoption unnecessary under § 8-106.01(E). 218 Ariz. at 218, 221, ¶¶ 3, 18,
181 P.3d at 1139, 1142. The Marco C. court held that the putative father
could not be excused from strictly complying with the terms of the registry
statute, despite his demonstration of his desire to assert his rights and
establish a relationship with the child by filing a notice with the registry
(albeit one day late) and by filing a paternity action. Id. at 219, ¶ 7, 181 P.3d
at 1140.
¶21 We note that the putative father in Marco C. failed to timely
serve the paternity action on the mother. Thus, even if he had timely filed
with the putative fathers registry, he would have been barred from
pursuing the paternity action and establishing paternity. See 218 Ariz. at
218, 221, ¶¶ 3, 18, 181 P.3d at 1139, 1142; A.R.S. § 8-106(G)(7). Accordingly,
the outcome in Marco C. would have been the same even if the court had
not relied on the putative fathers waiver provision. Nevertheless, as
explained above, we respectfully disagree with the reasoning of Marco C.
insofar as it holds that filing with the putative fathers registry is a necessary
precondition in all cases in which a father asserts his parental rights.
CONCLUSION
¶22 Biological Father was served by John Doe publication with §
8-106(G) notice of the adoption proceedings and, within two days, filed and
served a paternity action on Biological Mother. He diligently pursued the
paternity suit and established that A.C. is his biological child. Under the
circumstances, Biological Father retained the right to assert his parental
rights under § 8-106(G) notwithstanding his failure to register with the
putative fathers registry, and the juvenile court appropriately set aside
A.C.’s adoption. Accordingly, we affirm the juvenile court’s decision
setting aside A.C.’s adoption.
:ama
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