Frank R. v. Mother Goose Adoptions , 239 Ariz. 184 ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
FRANK R.,
Appellant,
v.
MOTHER GOOSE ADOPTIONS,
Appellee.
No. 2 CA-JV 2015-0120
Filed February 10, 2016
Appeal from the Superior Court in Pima County
No. S20140221
The Honorable K.C. Stanford, Judge
AFFIRMED
COUNSEL
Sarah Michèle Martin, Tucson
Counsel for Appellant Frank R.
FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
MyersStrickland, PLLC,1 Tucson
By Heather M. Strickland and Jessica C. Graves
Counsel for Appellee Mother Goose Adoptions
OPINION
Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Miller concurred and Chief Judge Eckerstrom
dissented.
V Á S Q U E Z, Presiding Judge:
¶1 Frank R. appeals from the juvenile court’s order
terminating his parental rights to E.E. pursuant to A.R.S. § 8-
533(B)(6), for failing to file a notice of paternity in compliance with
A.R.S. § 8-106.01, Arizona’s putative fathers registry. Frank
contends application of the registry to him was unconstitutional
because he and E.E.’s mother are California residents and, as a result
of her deceptive acts and false statements in an affidavit and to
appellee Mother Goose Adoptions, he did not know she had given
birth to E.E. in Arizona and had consented to the child’s adoption.
He also challenges the court’s finding that termination of his rights
was in E.E.’s best interest.2 We affirm.
1 Heather M. Strickland and Scott Myers of the law firm
MeyersStrickland, PLLC, were both counsel of record below,
although Myers signed the initial and amended severance petitions
and other filings and represented Mother Goose throughout the
severance hearing. Strickland and Myers were both counsel of
record on appeal; however, Strickland filed a Notice of Withdrawal
of Counsel on January 4, 2016, informing this court Myers had
retired and, as of December 31, 2015, was no longer practicing law.
Strickland argued the case before this court.
2Mother Goose filed a cross-appeal, challenging the juvenile
court’s finding that it had not presented sufficient evidence to
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Opinion of the Court
Background
¶2 We view the evidence in the light most favorable to
upholding the juvenile court’s ruling. Manuel M. v. Ariz. Dep’t of
Econ. Sec., 218 Ariz. 205, ¶ 2, 181 P.3d 1126, 1128 (App. 2008). In the
summer of 2013, eighteen-year-old Rachel E. and twenty-one-year-
old Frank, both California residents, developed an intimate
relationship and in early August learned Rachel was pregnant.
Rachel and Frank lived near each other with their respective parents
in California, but Rachel intermittently lived with Frank in his
parents’ home until she moved out permanently in November.
¶3 In December, Rachel contacted the Adoption Networks
Law Center (the Center), an adoption law firm in California, to
explore placing the expected child for adoption. Frank and his
mother asked Frank’s cousin, Alex Joaquin Saenz, a licensed patent
attorney in California, to help him assert his parental rights to the
child. Saenz testified at the severance hearing that he had contacted
the Center in February 2014 and asked to speak to the caseworker on
Frank’s behalf, conveying that Frank “wanted to claim his right with
respect to [Rachel’s unborn child].” No one from the Center called
him back, all of which Saenz confirmed in a letter to the Center.
¶4 Wendy McGreevy, an attorney with the Center, testified
at the severance hearing that Rachel had contacted the Center in
December 2013. A colleague subsequently asked McGreevy to
contact Frank, the person Rachel had identified as the father. When
McGreevy spoke to Frank on February 26, 2014, he told her that if
the child was his, he would “100% take the baby and raise it.”
McGreevy therefore recommended that the Center decline working
with Rachel because the father of the child was opposed to an
adoption.
terminate Frank’s rights based on the additional ground of
abandonment pursuant to § 8-533(B)(1). Mother Goose withdrew its
cross-appeal at oral argument in this court.
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
¶5 In March 2014, unbeknownst to Frank, Rachel and her
mother called Mother Goose in Arizona and spoke to Deborah
O’Kane, the Executive Director. They discussed placing the child for
adoption and Rachel completed the requisite paperwork to begin the
process. Both verbally and in forms she submitted, Rachel informed
Mother Goose she had no idea who the father of the child was,
claiming she had sexual relations with numerous men during the
relevant period. She did not tell Mother Goose about having
contacted the Center in California, leaving blank a related question
in the forms she submitted. Around this time, Rachel and her
mother drove to Arizona and met with Mother Goose personnel as
well as a physician.
¶6 Mother Goose sent Rachel profiles of potential adoptive
parents and in April, when Rachel and her mother traveled to
Arizona a second time, they met with a Mother Goose counselor and
chose the specific adoptive parents she wanted to adopt her child.
Mother Goose arranged and paid for accommodations for Rachel
and her mother at a hotel in Phoenix while they waited for the birth
of the child. Rachel signed an affidavit in which she stated that no
man had acknowledged or claimed paternity of the child or had
provided or promised to provide her support during the pregnancy,
she did not intend to name any man on the birth certificate as the
father, and there was no person she had reason to believe had an
interest in the child.
¶7 On May 5, Rachel gave birth to E.E. The adoptive
mother attended the birth and her husband arrived the following
day. The adoptive parents are from Tennessee and had adopted
another child through Mother Goose four years earlier. On May 8,
three days after the birth of E.E., Rachel executed a Relinquishment
of Parental Rights for Adoption, which provided that she
relinquished her rights to Mother Goose and consented to its
placement of E.E. for adoption. The following day, Frank asked
Rachel about the baby through Facebook. Rachel responded that the
child was African American and was not his. That same day Frank
again asked about the baby, asked Rachel where she had been, and
said he was concerned about whether the baby was healthy and
whether Rachel was taking care of the child. He also said, “And if
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
it’s mine, I’m gonna support the baby.” Rachel did not tell him the
baby had been born in Arizona.
¶8 Rachel and her mother returned to California on
May 10. Mother Goose filed a petition for termination of parent-
child relationship and appointment of guardian for the child on
May 14 in Pima County Superior Court. The petition was verified
by its counsel and included various exhibits, including an affidavit
from Rachel avowing she did not know the identity of the father and
no man had come forward expressing an interest in the child. At
oral argument before this court, Mother Goose’s counsel, whose firm
also represented Mother Goose below, conceded there was no basis
under A.R.S. § 12-401 for believing Pima County was an appropriate
venue for filing the petition when the child was born in Maricopa
County.
¶9 O’Kane testified at the severance hearing that she knew
Rachel was a California resident who had traveled to Arizona for the
sole purpose of placing her child for adoption and had returned to
California at the time Mother Goose filed the petition. Nevertheless,
Mother Goose alleged in the severance petition that Rachel resided
in Arizona and listed her address as that of the hotel where Mother
Goose had arranged for Rachel and her mother to stay while in
Phoenix. Mother Goose further alleged it had custody of E.E. and
that Rachel had relinquished her parental rights to the child and
consented to his adoption by the adoptive parents. See A.R.S. § 8-
533(B)(7) (providing as ground for termination of parental rights
parents’ relinquishment of rights to agency or consent to adoption).
Mother Goose alleged further that the identity of the child’s father
was unknown and sought to terminate Rachel’s rights pursuant to
§ 8-533(B)(7) and the rights of any potential father pursuant to § 8-
533(B)(5) on the ground that no person claiming to be the father had
filed and served Rachel with a paternity action within thirty days of
service of a notice to potential father pursuant to A.R.S. § 8-106(G).
That notice, which is required in an adoption under § 8-106, was
served by publication in Maricopa County, the final of three notices
appearing on May 30, 2014. Mother Goose requested that the court
appoint the prospective adoptive parents as guardians of the child,
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
and vest legal custody in Mother Goose, pursuant to A.R.S. § 8-
538(B)(2).
¶10 Mother Goose also initiated a referral pursuant to the
Interstate Compact on the Placement of Children (ICPC), see A.R.S.
§ 8-548, requesting that the adoptive parents be permitted to leave
Arizona with E.E. James O’Donnell, Arizona’s ICPC administrator,
processed that referral and sent O’Kane an email on May 13, stating
it appeared from the information he had received from her that
Rachel was a California resident and determination of which state
had jurisdiction should begin there. O’Kane immediately responded
that Rachel’s father lived in California and falsely stated that her
mother lived in Arizona and Rachel had come to Arizona to live
with her mother and would “continue to split time between both
parents.” O’Donnell approved the ICPC request on May 13, and the
adoptive parents left Arizona the next day with E.E. and returned to
Tennessee. On July 30, 2014, the juvenile court terminated the
parental rights of “John Doe” and relinquished jurisdiction to
Tennessee pursuant to A.R.S. § 25-1032(A)(2), a provision of the
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). See A.R.S. §§ 25-1001 through 25-1067.
¶11 In the meantime, Frank had seen a photograph of E.E.
on Facebook and believed the child looked like him. In Los Angeles
Superior Court, he filed a Petition to Establish Parental Rights (the
California petition) in early July 2014, and the court set a hearing on
the petition for August 28. Rachel was served with the California
petition at the end of July. Rachel’s mother called O’Kane on
July 30, told her about the paternity action, and sent a copy of the
petition. When questioned about Rachel’s actions at the severance
hearing, O’Kane testified that Rachel had not told the truth when
she claimed she had no idea who the father of the child was and
when she signed the affidavit to that effect, committing perjury.
O’Kane also admitted that by not completing a portion of Mother
Goose’s application that required Rachel to state whether she had
sought the assistance of another adoption agency in her home state
or another state, she essentially had “falsified” its records and failed
to provide information.
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
¶12 On August 25, Mother Goose filed a motion in the
juvenile court pursuant to Rule 60(c)(2), Ariz. R. Civ. P., requesting
that the court set aside the July 30 order relinquishing jurisdiction. It
disclosed it had relied on a statement Rachel had provided in a
sworn affidavit suggesting she did not know the identity of the
father but that it had learned Frank was claiming an interest in E.E.
Mother Goose asserted Tennessee could not proceed with an
adoption until Frank’s parental rights were terminated. It stated
counsel for the adoptive parents had opined that, notwithstanding
Arizona’s initial relinquishment of its continuing jurisdiction for
purposes of the adoption, Tennessee did not have jurisdiction to
terminate Frank’s parental rights. Accordingly, Mother Goose asked
the court to reassert jurisdiction to permit it to file an amended
petition to terminate Frank’s rights. The court granted the motion
that day.
¶13 On August 27, Mother Goose filed its first-amended
petition, seeking to terminate Frank’s parental rights under § 8-
533(B)(6) on the ground he had failed to file a notice of claim of
paternity within thirty days of E.E.’s birth, as required by § 8-106.01.
Mother Goose failed to state in the amended petition that Frank had
filed the California petition to establish his paternity; rather, it
falsely avowed there were no other related proceedings in any
jurisdiction and again alleged as Rachel’s address the address of the
hotel where she and her mother had stayed in Arizona.3
¶14 On August 28, when Frank appeared for the initial
hearing on the California petition, he was served with a motion filed
by Rachel through counsel, requesting an order quashing the
California proceeding based on the allegation that Arizona was
E.E.’s “home state” for purposes of the UCCJEA. See Cal. Fam. Code
§§ 3421 (setting forth when California has jurisdiction to make initial
custody determination), 3422 (identifying when court loses
jurisdiction); see generally Cal. Fam. Code §§ 3400 through 3465. It
3At oral argument before this court, Mother Goose’s counsel
claimed the incomplete and incorrect information was the result of
“an oversight by [her] office.”
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Opinion of the Court
was then that Frank first learned E.E. was born in Arizona and that
Mother Goose had filed a petition to terminate his parental rights in
Arizona the day before. On September 26, Mother Goose filed a
motion in the juvenile court in Arizona, asking the court to confer
with the California court and retain jurisdiction under the UCCJEA.
It argued Arizona had been E.E.’s home state when the proceedings
began, see § 25-1031, it had made a custody determination, and
Mother Goose, the agency with legal custody of E.E., retained strong
connections to Arizona, see § 25-1032. The court set the motion for
hearing on October 8.
¶15 Frank called the juvenile court in Arizona on
September 15 and, when court staff returned the call on
September 18, he learned attorney Scott Myers represented Mother
Goose. That day Frank’s mother spoke with Myers, who confirmed
Mother Goose had filed a petition to terminate Frank’s parental
rights. Also on September 18, Frank was served with the first-
amended petition to terminate parental rights and to appoint a
guardian that Mother Goose had filed on August 27.
¶16 On October 2, Frank received from Myers a copy of
Mother Goose’s jurisdiction motion and a notice that the motion
would be heard on October 8. Frank traveled to Arizona and filed a
pro se response to the first-amended petition on October 6 and
attended the hearing on October 8. At that hearing, the juvenile
court appointed counsel to represent Frank and ordered genetic
testing to determine paternity, which Frank had requested in his
response. The court granted the motion to retain jurisdiction and
agreed to confer with the California court. On November 4, the
court held the UCCJEA hearing, during which the two judges
conferred telephonically. 4 The California court set a hearing for
4 During oral argument before this court, Frank’s counsel
seemed to suggest that Frank was not represented by counsel at the
UCCJEA hearing. Although neither party requested a transcript of
that hearing, the minute entry establishes Frank attended
telephonically and was represented by the attorney who had been
appointed on October 8.
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
December 10, after which it deferred jurisdiction to Arizona and
dismissed the California petition. The juvenile court conducted the
initial severance hearing on December 11.
¶17 On February 6, 2015, Mother Goose filed a second-
amended petition, which added abandonment as a ground for
terminating Frank’s rights. And, with respect to its prior allegation
that Frank had failed to file a notice of paternity within thirty days
of the child’s birth, the second-amended petition added, “or within
30 days after it became possible for him to file,” stating in its motion
to amend the petition that it was clarifying the previously alleged
ground. Once again Mother Goose listed the Arizona hotel address
as Rachel’s address. Mother Goose also alleged falsely that the
identity of the father was unknown and that Frank “may be the
father of the child,” even though deoxyribonucleic acid (DNA) test
results contained in a report dated October 28, 2014, established
Frank was E.E.’s father.
¶18 The severance hearing took place over six days between
February 27 and April 28. On March 24, about a month before the
last day of the hearing, Frank filed an ex parte motion in the
severance proceeding seeking to establish paternity and
incorporating A.R.S. § 25-814(A)(2) (paternity presumed where
“[g]enetic testing affirms at least a ninety-five per cent probability of
paternity”). He also apparently filed a separate special paternity
action under title 25. During the fourth day of the severance
hearing, the court consolidated the two actions “for hearing
purposes.” The juvenile court also entered an order finding Frank
was E.E.’s father.
¶19 In June 2015, the juvenile court terminated Frank’s
parental rights. In its thirty-five-page under-advisement ruling, the
court found Mother Goose had not sustained its burden of
establishing Frank had abandoned E.E. The court found Rachel’s
conduct was deceitful and designed to prevent Frank from asserting
his parental rights and found O’Kane’s statements regarding the
ICPC referral had been “false and misleading.” Nevertheless, the
court terminated Frank’s parental rights pursuant to § 8-533(B)(6),
finding Frank had not filed a notice of claim of paternity at all, much
less within thirty days of when it had become possible for him to do
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Opinion of the Court
so, which was, at the earliest on September 27, thirty days after he
first learned on August 28 that E.E. was born in Arizona, and at the
latest, on November 7, thirty days after the court appointed counsel
to represent him on October 8. The court concluded termination of
Frank’s rights was in E.E.’s best interest. Frank’s appeal and Mother
Goose’s cross-appeal, which it has withdrawn, followed.
Discussion
¶20 Frank begins his opening brief on appeal by asserting
that the juvenile court failed to decide the central question in this
matter, which the court itself framed as “the application of the
Arizona Putative Father[s] Registry in termination proceedings to an
unwed, California father” who did not know the mother had
traveled to Arizona, falsely stated she did not know who the father
was, gave birth to the child, and consented to the adoption by the
Tennessee couple. Frank maintains “the central issues on appeal are
whether Arizona law is applicable to the father at all, whether our
Arizona statutes were intended to apply to an out-of-state father
who had no reasonable expectation of being haled into court in
Arizona, and whether the fraud perpetrated by the mother and
furthered by Mother Goose Adoptions undermines the
constitutionality of the statutes themselves and that of their
application herein.”
¶21 We review the juvenile court’s order terminating a
parent’s rights for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t
of Econ. Sec., 207 Ariz. 43, ¶ 8, 83 P.3d 43, 47 (App. 2004). “[W]e will
accept the juvenile court’s findings of fact unless no reasonable
evidence supports those findings, and we will affirm a severance
order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ.
Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App. 2002). Unless we can
say, “‘as a matter of law that no one could reasonably find the
evidence [supporting statutory grounds for termination] to be clear
and convincing,’” we will not disturb the court’s ruling. Denise R. v.
Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App.
2009), quoting Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791
(1955) (alteration in Denise R.). A court must apply the law correctly
in order to exercise its discretion soundly. See Allen v. Chon-Lopez,
214 Ariz. 361, ¶ 9, 153 P.3d 382, 385 (App. 2007).
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Opinion of the Court
The Statutes
¶22 This case involves the interpretation and application of
§ 8-533(B)(6), Arizona’s parental severance statute, and, necessarily,
the putative fathers registry, § 8-106.01, questions of law, which we
review de novo. See In re John M., 201 Ariz. 424, ¶ 7, 36 P.3d 772, 774
(App. 2001); see also Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz.
205, ¶ 18, 181 P.3d 1126, 1131 (App. 2008); Adrian E. v. Ariz. Dep’t of
Econ. Sec., 215 Ariz. 96, ¶ 9, 158 P.3d 225, 228 (App. 2007). In
interpreting statutes, we strive to effectuate the intent of our
legislature and, because the language in the statute is the best
reflection of that intent, we apply the statute as written unless the
terms are not clear. See Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz.
76, ¶ 8, 117 P.3d 795, 797 (App. 2005). Consequently, “[w]hen a
statute is clear and unambiguous, we apply its plain language and
need not engage in any other means of statutory interpretation.”
Kent K. v. Bobby M., 210 Ariz. 279, ¶ 14, 110 P.3d 1013, 1017 (2005). In
addition, when it is possible, we “‘construe statutes to uphold their
constitutionality.’” Lisa K. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 173,
¶ 9, 281 P.3d 1041, 1045 (App. 2012), quoting State v. Hargrave, 225
Ariz. 1, ¶ 42, 234 P.3d 569, 581 (2010). “‘We presume a statute to be
constitutional and will not declare an act of the legislature
unconstitutional unless convinced beyond a reasonable doubt that it
conflicts with the federal or state constitutions.’” Id., quoting Graville
v. Dodge, 195 Ariz. 119, ¶ 17, 985 P.2d 604, 608 (App. 1999). The
party challenging a statute has the burden of establishing it is
unconstitutional. Id. ¶ 9.
¶23 The legislature enacted this state’s putative fathers
registry in 1994. 1994 Ariz. Sess. Laws, ch. 116, § 2. Our supreme
court surmised in In re Pima County Juvenile Action No. S-114487, 179
Ariz. 86, 90 n.2, 876 P.2d 1121, 1125 n.2 (1994), that the legislature
did so in response to the situation that arose in that case and cases
like it, in which the putative father’s rights were severed on the
ground of abandonment in order to facilitate the adoption of the
child after the mother, but not the putative father, relinquished her
parental rights. When initially enacted, the registry was expressly
implicated only in adoption proceedings pursuant to § 8-106. 1994
Ariz. Sess. Laws, ch. 116, §§ 1, 2. The two statutes were designed to
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Opinion of the Court
work in tandem to permit the adoption of a child without the
consent of a putative father who failed to assert his parental rights
by filing a notice of paternity in accordance with the registry and by
filing and serving a paternity action within the specified period.5
¶24 But in 2002, when the legislature amended portions of
§ 8-106, it amended the severance statute as well, adding § 8-
533(B)(6) as an additional ground for terminating a father’s parental
rights. 2002 Ariz. Sess. Laws, ch. 173, §§ 1, 4. It made a putative
father’s failure “to file a notice of claim of paternity as prescribed in
section 8-106.01” an independent basis for termination under § 8-
533(B)(6). This process is distinct from the de facto severance that
may be effectuated through the adoption process. Although the
ultimate goal of terminating a putative father’s rights under this
provision may be the facilitation of an adoption, as it is in this case,
it is a separate, independent proceeding. The instant appeal arises
out of a severance under § 8-533(B)(6), not an adoption, therefore we
consider § 8-106.01 only in the context of the circumstances before
us.
¶25 The requirements of § 8-106.01 are clear. Subsection (A)
states that
[a] person who is seeking paternity, who
wants to receive notice of adoption
5Section 8-106.01(E) provides that a putative father who fails
to file a notice of a claim of paternity with the registry, “waives his
right to be notified of any judicial hearing regarding the child’s
adoption and his consent to the adoption is not required . . . .” See
also §§ 8-106(J) (requiring putative fathers who wish to preserve
parental rights and whose consent would be necessary for adoption
to file and serve mother with paternity action pursuant to title 25,
chapter 6, article 1 within thirty days after completion of service of
the notice required by § 8-106(G)); 8-106.01(G) (barring putative
father who fails to file paternity action within thirty days of service
of notice under § 8-106(G) “from bringing or maintaining any action
to assert any interest in the child”).
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proceedings and who is the father or claims
to be the father of a child shall file notice of
a claim of paternity and of his willingness
and intent to support the child to the best
of his ability with the state registrar of vital
statistics in the department of health
services.
Subsection (B) of the statute provides that the putative father may
file the notice of claim of paternity before a child is born but shall file
within thirty days of the child’s birth. However, subsection (E)
provides that a father who does not file a notice of claim of paternity
as provided in subsection (B):
. . . waives his right to be notified of any
judicial hearing regarding the child’s
adoption and his consent to the adoption is
not required, unless he proves, by clear and
convincing evidence, both of the following:
1. It was not possible for him to file a
notice of a claim of paternity within the
period of time specified . . . .
2. He filed a notice of a claim of paternity
within thirty days after it became possible
for him to file.
¶26 In addressing the constitutionality of § 8-533(B)(6) and
§ 8-106.01, we are mindful that a parent’s right to custody of his or
her child is “fundamental,” but not absolute. Michael J. v. Ariz. Dep’t
of Econ. Sec., 196 Ariz. 246, ¶¶ 11-12, 995 P.2d 682, 684 (2000). Thus,
a court may sever parental rights under certain circumstances, so
long as the procedures are fundamentally fair and satisfy due
process requirements. Santosky v. Kramer, 455 U.S. 745, 754 (1982). A
putative father’s parental rights, however, are inchoate and do not
attain fundamental constitutional status unless he takes significant
steps to create a parental relationship. Pima Cty. No. S-114487, 179
Ariz. at 93-94, 876 P.2d at 1128-29; see also Caban v. Mohammed, 441
U.S. 380, 392 (1979). The registry provides putative fathers with a
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Opinion of the Court
means of asserting their parental rights by creating a specified,
public repository, maintained by an agency of the state, wherein the
putative father may acknowledge his paternity, whether potential or
established, declare his interest in his child, and state his willingness
to support his child. See § 8-106.01(A).
¶27 In Lehr v. Robertson, 463 U.S. 248, 264-65 (1983), the
Supreme Court held that putative fathers registries are
constitutional. The Court observed that “the mere existence of a
biological link does not merit equivalent constitutional protection”
to a developed parent-child relationship. Id. at 261. The Court
reasoned, “[w]hen an unwed father demonstrates a full commitment
to the responsibilities of parenthood by ‘com[ing] forward to
participate in the rearing of his child,’ his interest in personal contact
with his child acquires substantial protection under the due process
clause.” Id., quoting Caban, 441 U.S. at 392 (second alteration in Lehr)
(citation omitted). The Court concluded New York’s paternity
registry accommodated and protected the putative father’s interest
in establishing that relationship. Id. at 262-65; see also Rebeca
Aizpuru, Note, “Protecting the Unwed Father’s Opportunity to
Parent: A Survey of Paternity Registry Statutes,” 18 Rev. Litig. 703,
727 (1999) (putative father registries serve dual purpose of
“protecting the rights of responsible fathers and facilitating speedy
adoptions of children whose fathers do not wish to assume parental
responsibility”).
¶28 In Marco C. v. Sean C., this court determined § 8-
106.01(B) “clearly and unambiguously sets a time limit that can be
excused only under the limited circumstances prescribed in § 8-
106.01(E).” 218 Ariz. 216, ¶ 9, 181 P.3d 1137, 1140 (App. 2008).
Based on the statute’s clear language, we held it must be strictly
applied. Id. ¶¶ 9-10. We noted that, in enacting the statute, the
legislature had “balanced the policy considerations involved and
concluded that the theoretical ten-month period between a child’s
conception and thirty days after the child’s birth gives the father an
adequate opportunity to file his notice.” Id. ¶ 9. We acknowledged
“the result may be harsh when a father misses this deadline,” but
added that it is not for the judiciary to “second-guess the
legislature’s policy decision.” Id. Thus, we concluded, because the
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putative father in that case had filed his notice of paternity on the
thirty-first day after the child’s birth, the juvenile court did not err in
finding the father had failed to comply with the statute, his consent
to adoption was not required, and the adoption could proceed over
his objection. Id. ¶¶ 3, 18.
¶29 As Frank points out, Marco C., on which the juvenile
court in this case relied, involved an Arizona putative father who,
based on his having engaged in sexual relations with a woman in
this state, had reason to believe and in fact knew the issue of his
paternity would arise in this state. In Marco C., however, this court
cited Beltran v. Allan, 926 P.2d 892, 895-96, 898 (Utah Ct. App. 1996),
on which the juvenile court in this case also relied, and cases from
other jurisdictions, see, e.g., Heidbreder v. Carton, 645 N.W.2d 355, 369-
70 (Minn. 2002), Hylland v. Doe, 867 P.2d 551, 553, 556-57 (Or. Ct.
App. 1994), and In re Adoption of B.B.D., 984 P.2d 967, ¶¶ 2-6, 12
(Utah 1999), in which courts applied their state’s putative fathers
registries strictly to out-of-state putative fathers. 218 Ariz. 216, ¶ 10,
181 P.3d at 1140-41. However, we did not address the application of
Arizona’s registry to an out-of-state father in Marco C. Nor did § 8-
533(B)(6) come into play in Marco C., the appeal having arisen out of
an adoption proceeding, not a severance.
¶30 Here, contrary to Frank’s argument, the juvenile court
implicitly, if not expressly, determined that as a general proposition,
Arizona’s putative fathers registry applies to out-of-state putative
fathers. The court ruled that the statute was “designed to avoid
protracted legal disputes between unwed fathers and potential
adoptive parents” and “was also designed for resolving disputes
between Arizona and non-Arizona residents who give birth to
children in Arizona.” As we noted above, Beltran and other courts
have applied their putative father registries to out-of-state putative
fathers. See, e.g., Heidbreder, 645 N.W.2d at 360, 375; Hylland, 867
P.2d at 553, 556-57; Adoption of B.B.D., 984 P.2d 967, ¶¶ 31-33; In re
Adoption of W, 904 P.2d 1113, 1115, 1121 (Utah Ct. App. 1995). The
juvenile court therefore did not err in finding, whether implicitly or
expressly, that, as a general principle, a putative fathers registry can
apply to an out-of-state putative father.
15
FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
Due Process and Jurisdiction
¶31 We now turn to Frank’s argument that the application
of § 8-106.01 to the circumstances of this case violated his due
process rights. This argument is intertwined with his assertions that
the juvenile court lacked “jurisdiction” to apply Arizona’s registry to
him and to sever his rights based on his failure to register. Frank
argues it was unconstitutional to deny him “the protection of
California law” and apply § 8-106.01 to him at all, given Rachel’s
deceitful conduct and misrepresentations to the court, which was
“furthered by Mother Goose Adoptions’ obfuscation in its pleadings
and intentional lack of candor to the court.” He argues he was
deprived of notice and an opportunity to be heard and that, even
conceding, “for the sake of argument only, that the court had
jurisdiction” over him, such jurisdiction did not determine the
“choice of law” and he could not “lawfully be denied the protection
of California law on the basis that the mother traveled to Arizona
and committed perjury that was furthered by Mother Goose
Adoptions in order to deny him access to and custody of his child.”
Blending issues of personal and subject-matter jurisdiction with
issues of due process and choice of law, he argues in his briefs on
appeal that because of the lack of notice and an opportunity to be
heard, the juvenile court had “no jurisdiction to adjudicate such
personal rights.”
¶32 At oral argument before this court, Frank abandoned
his personal-jurisdiction challenge. He conceded the record shows
he submitted himself to the jurisdiction of the juvenile court,
waiving this claim.6 We therefore do not address it further.7 Frank
6 Although Frank stated in his response to the severance
petition that he believed California has jurisdiction over any petition
to establish or terminate his parental rights because that is where he
and Rachel reside, he did not expressly state he was objecting to the
Arizona proceeding for lack of personal jurisdiction. Additionally,
he asked the juvenile court for affirmative relief, including DNA
testing and an order denying the petition on the merits, awarding
him legal and physical custody of the child, thereby agreeing the
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
persisted at argument in this court, however, that the court lacked
subject-matter jurisdiction. Although some of his arguments were,
in actuality, continued challenges to the court’s personal jurisdiction
over him, he seemed to argue that Arizona did not have jurisdiction
under the UCCJEA, because the court’s assertion of jurisdiction had
been based on Rachel’s and Mother Goose’s misrepresentation of the
true facts, particularly those related to jurisdiction.
¶33 Frank asserted in his pro se response to the severance
petition that California had jurisdiction to decide matters related to
his parental rights and to hear any termination petition. But in his
pretrial statement, Frank listed among the uncontested issues, “[t]he
Pima County Juvenile Court has primary jurisdiction to hear this
matter.” Because neither party ordered a transcript of the UCCJEA
hearing in November 2014, we are unable to determine what
arguments Frank may have made in opposing Arizona’s jurisdiction
of the severance proceeding under the UCCJEA. But, during closing
argument in the severance hearing, when Frank’s counsel seemed to
be challenging the court’s jurisdiction under the UCCJEA, the
severance proceeding could be litigated in Arizona. See Davis v.
Davis, 230 Ariz. 333, ¶ 25, 284 P.3d 23, 28 (App. 2012) (“By making
an appearance, requesting affirmative relief from the court and
taking these other actions before raising any personal jurisdiction
issue, Husband consented to Arizona’s jurisdiction.”); State ex rel.
Ariz. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 8, 66 P.3d 70, 72
(App. 2003) (Arizona court may exercise personal jurisdiction over
non-resident if person “submits to the court’s jurisdiction by
consent, enters a general appearance, or files a responsive document
having the effect of waiving a contest to personal jurisdiction”).
7Nor do we address Frank’s related choice-of-law argument,
except to the extent it is intertwined with his due process arguments.
He did not assert this as a distinct claim in the juvenile court nor has
he developed it as such sufficiently on appeal. See City of Tucson v.
Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242
(App. 2008) (appellate court will not address issues or arguments
waived by failure to adequately develop them in briefs).
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
juvenile court asked counsel whether she was requesting that the
court “reconsider” its decision to retain jurisdiction based on
Rachel’s fraudulent and deceptive conduct and Mother Goose’s
misrepresentations and give the case to the California court.
Counsel responded, “I don’t think that’s appropriate,” urging the
court to consider that behavior in connection with the severance and
“rectify the wrongs that have been perpetrated on my client.”
Counsel conceded Arizona was the “home state” for purposes of the
UCCJEA and that the court should continue to retain jurisdiction.
¶34 Nor does it appear Frank challenged the California
court’s order quashing the hearing on his paternity action, deferring
jurisdiction to Arizona, and dismissing his California petition. 8
Nevertheless, the issue of a court’s subject-matter jurisdiction may
be raised at any time, Health For Life Brands, Inc. v. Powley, 203 Ariz.
536, ¶¶ 11-12, 57 P.3d 726, 728 (App. 2002), and parties cannot confer
jurisdiction on a court if it is lacking, Sw. Soil Remediation, Inc. v. City
of Tucson, 201 Ariz. 438, n.5, 36 P.3d 1208, 1215 n.5 (App. 2001). In
addition, “[t]his court has an independent obligation to evaluate
subject matter jurisdiction.” See Angel B. v. Vanessa J., 234 Ariz. 69,
¶ 5, 316 P.3d 1257, 1259 (App. 2014). Thus, to the extent Frank is
truly challenging the court’s subject-matter jurisdiction, we address
the argument. Whether the juvenile court had subject-matter
jurisdiction of the severance proceeding is a question of law, which
we review de novo. Id. ¶ 6.
8 As part of his blended subject-matter and personal
jurisdiction arguments in his appellate brief, Frank complains he
was harmed by not receiving “notice and by his being forced to give
up the Petition he filed in California.” He further asserts the
California court did not appoint counsel for him and he was “blind-
sided” by the motion to quash that proceeding. But these are
complaints he should have made in the California court. They do
not relate to the juvenile court’s subject-matter jurisdiction, but are
actually part of his fairness and due process arguments, which are
addressed below.
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
¶35 E.E. was in this state when the severance proceeding
commenced on May 14, 2014, and, based on Rachel’s having
relinquished her parental rights to Mother Goose, a licensed
adoption agency, for purposes of adoption, E.E. was under Mother
Goose’s legal control and it was authorized to place him in an
approved home. See A.R.S. §§ 8-101(3) (defining agency placement
adoption); 8-106(A)(5) (acknowledging consent to adopt may be
given to adoption agency, which may then place child for adoption);
8-107(D) (providing consent to adopt shall designate an adoption
agency or the department of child safety as party authorized to place
child for adoption, or a specific person to adopt); 8-126 (authorizing
licensing and oversight of adoption agency); 8-130(A) (providing
licensed adoption agency may arrange direct placement of child
following consent to adoption granted to agency); see also Ariz.
Admin. Code R6-5-7002, R6-5-7003 (licensing of adoption agency).
Arizona had subject-matter jurisdiction of the severance petition.
See A.R.S. § 8-532 (court has jurisdiction to decide severance petition
when child in state). That was not altered by the fact that E.E. left
the state immediately following the ICPC placement approval, the
same day the petition was filed. In addition, under the UCCJEA,
which applies to proceedings to terminate parental rights, see A.R.S.
§ 25-1002(4)(a), Arizona had jurisdiction to make the initial custody
determination regarding E.E. because he was born in Arizona and it
was his “home state” on the date the severance proceeding
commenced. See §§ 25-1002(7); 25-1031(A)(1); see also § 25-1002(8)
(initial custody determination is “the first child custody
determination concerning a particular child”).9 Once a court with
original jurisdiction issues an initial child custody order, the
UCCJEA gives that court exclusive, continuing jurisdiction over all
future custody determinations, subject to statutory exceptions. § 25-
1032(A); see also Angel B., 234 Ariz. 69, ¶ 8, 316 P.3d at 1260.
9 Rachel having relinquished her parental rights to Mother
Goose on May 8, for purposes of § 25-1002(7), which defines “home
state,” Mother Goose was the “person acting as a parent” when the
severance proceeding commenced. See § 25-1031(A)(1).
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
¶36 Here, unlike in Angel B., 234 Ariz. 69, ¶ 20, 316 P.3d at
1262-63, a court of this state entered the initial custody order and
10
the two courts conferred to determine whether Arizona had and
should retain continuing jurisdiction under § 25-1031 and § 25-1032.
To the extent Frank argues the juvenile court erred in electing to
retain jurisdiction rather than relinquishing to California in light of
Rachel’s and Mother Goose’s conduct, that is not truly a subject-
matter jurisdiction question. Rather, “even if a court may exercise
jurisdiction under the UCCJEA, the decision [to] do so is” for a trial
court to make in the exercise of its discretion. Cheesman v. Williams,
No. 320446, 2015 WL 3794095, 1 (Mich. Ct. App. June 18, 2015); see
also Wagner v. Wagner, 887 A.2d 282, ¶ 12 (Pa. Super. Ct. 2005) (“‘A
court’s decision to exercise or decline jurisdiction [under the
UCCJEA] is subject to an abuse of discretion standard of review
. . . .’”), quoting Lucas v. Lucas, 882 A.2d 523, ¶ 4 (Pa. Super. Ct. 2005).
Consequently, this is not a question of the court’s subject-matter
jurisdiction and the challenge was waived.11
10 This court observed in Angel B. that the juvenile court’s
exclusive original jurisdiction to decide termination petitions
relating to a child in this state, see § 8-532, can be harmonized with
the provision of the UCCJEA that requires Arizona to “‘recognize
and enforce a child custody determination of a court of another state
if the latter court exercised jurisdiction in substantial conformity
with this chapter.’” 234 Ariz. 69, ¶ 12, 316 P.3d at 1261, quoting § 25-
1053(A); see also § 25-1002(4)(a) (UCCJEA applies to proceedings to
terminate parental rights). Because an initial custody order had
been entered in California in that case and nothing in the record
showed the Arizona and California courts had conferred in
compliance with the UCCJEA before the Arizona court severed the
father’s parental rights, this court remanded the case to address the
jurisdictional issues. Angel B., 234 Ariz. 69, ¶¶ 19-21, 316 P.3d at
1262-63.
11We recognize that under A.R.S. § 25-1038(A), a court of this
state “shall decline to exercise its jurisdiction” if the court has
jurisdiction “because a person seeking to invoke its jurisdiction has
20
FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
¶37 Despite Rachel’s misrepresentations and Mother
Goose’s false statements in connection with the ICPC placement of
E.E. in Tennessee and in its pleadings, all of which are deeply
troubling, the juvenile court did not lack subject-matter jurisdiction
of the severance proceeding. Cf. Hylland, 867 P.2d at 553-54 (finding
that although father had lived in California and child was conceived
in that state, Oregon had jurisdiction under UCCJEA to hear
adoption proceeding because child was born there and had been
living there with adoptive parents, who had colorable claim to
custody because they had been appointed as child’s guardians and
mother had consented to adoption).
Due Process
¶38 We now turn to Frank’s due process arguments and his
claim that application of the statute deprived him of an important
personal right without adequate notice and an opportunity to be
heard. Rejecting these and similar claims, the juvenile court relied,
in part, on Beltran, in which the Utah Court of Appeals strictly
applied Utah’s paternity registry to an out-of-state putative father.
926 P.2d at 895, 897-98. On appeal from summary judgment in favor
of the adoption agency, the father in Beltran argued he should have
been excused from filing an acknowledgment of paternity under a
provision of the statute that permitted a father to show it had not
been possible for him to comply with the registry during the
requisite period of time. Id. at 895-96, citing former Utah Code § 78-
30-4.8(3)(a) through (c), repealed by 1995 Utah Laws, ch. 168, § 15.
engaged in unjustifiable conduct,” unless certain circumstances
specified in the statute exist. However, at the time Mother Goose
invoked the court’s jurisdiction by filing the initial severance
petition, it was not aware Rachel had made false statements and it
had not, therefore, engaged in “unjustifiable conduct.” The court
likewise did not exercise jurisdiction because of such conduct. See
Duwyenie v. Moran, 220 Ariz. 501, ¶ 14, 207 P.3d 754, 758 (App. 2009).
Moreover, at least one of the exceptions specified in the statute
existed here: California relinquished jurisdiction to Arizona. See
§ 25-1038(A)(2).
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
The court rejected the California father’s argument that he should
not have been required to comply with Utah’s registry because, like
Frank, he had made clear to the mother and the adoption agency he
opposed the adoption and because he had filed a paternity action in
California and one in Utah. Id. at 896.12 Requiring strict compliance
with the statute, not substantial compliance, the court in Beltran also
rejected the father’s argument that the statute was unconstitutional
as applied to him because the mother consistently told him she
intended to relinquish her rights and consent to the child’s adoption.
Id. at 897.
¶39 Frank suggests the juvenile court’s reliance on Beltran
was misplaced because the father in that case knew the mother
intended to travel to Utah and place the child there for adoption and
chose not to comply with Utah’s paternity registry. He argues the
Utah Supreme Court’s recent decision in Nevares v. M.L.S., 345 P.3d
719, ¶¶ 15, 23-25 (Utah 2015), is far more instructive here. He relies
on it for the proposition that to satisfy the requirements of due
process, the juvenile court was required to apply California’s
12The court in Beltran relied on its earlier decisions in In re
Adoption of W, 904 P.2d at 1115, 1120-21, in which the court had
required strict compliance with the statute despite the fact that the
mother had deceived the putative father and he did not know she
had given birth in Las Vegas and relinquished the child to adoptive
parents in Utah, and Sanchez v. L.D.S. Soc. Servs., 680 P.2d 753, 755
(Utah 1984), in which the Utah Supreme Court rejected the putative
father’s argument that he had substantially complied with the
statute by establishing his parental rights through methods
alternative to the putative fathers registry. Beltran, 926 P.2d at 896.
The Utah Supreme Court recently reaffirmed its decision in Sanchez,
rejecting a putative father’s arguments on appeal from the district
court’s denial of his motion to intervene in an adoption proceeding
that strict application of the registry to him in light of the mother’s
deceitful conduct violated his procedural and substantive due
process rights. In re Adoption of B.Y., 356 P.3d 1215, 1221-22, 1227
(Utah 2015).
22
FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
paternity law to him, not Arizona’s statutes. And, Frank insists, he
adequately asserted his parental rights in California by filing and
serving Rachel with the California petition in July 2014.
¶40 Mother Goose attempts to distinguish Nevares on the
basis that there the court did not address the constitutionality of
Utah’s putative fathers registry. But that is not the most significant
distinction. Rather, the result in Nevares was determined by Utah’s
impossibility exception, which differs in material respects from § 8-
106.01(E). 345 P.3d 719, ¶ 13. Under the Utah statute an out-of-state
putative father is excused from complying with Utah’s putative
fathers registry if he did not know and could not reasonably have
known the child would be placed for adoption in Utah. Utah Code
§ 78B-6-122(1)(c)(i). Under those circumstances, the father’s consent
to an adoption is required if he has “fully complied with the
requirements to establish parental rights in the child, and to
preserve the right to notice of” an adoption “imposed by . . . the last
state where the unmarried biological father knew, or through the
exercise of reasonable diligence should have known, that the mother
resided in before the mother executed the consent to adoption.”
Utah Code § 78B-6-122(1)(c)(i)(B).
¶41 This portion of Utah’s statute essentially is a choice-of-
law provision, which does not exist in § 8-533(B)(6) or § 8-106.01.
The Utah Supreme Court reasoned in Nevares that the statute was
intended to incorporate another state’s law, in that case Colorado
law, under which a father’s rights are presumptively preserved
unless and until terminated by court order in a proceeding of which
the known father must be given notice and an opportunity to be
heard. 345 P.3d 719, ¶¶ 17-18. Although Colorado offered other
options to a father for asserting and preserving paternal rights, it
required nothing more to do so; therefore, the Utah court concluded
the father was entitled to notice and an opportunity to be heard in
the Utah adoption proceeding. Id. ¶ 20. The court concluded
further that the father’s due process rights would be violated if the
statute were to be construed to require him to fulfill requirements
Colorado did not impose, “holding him to a legal regime to which
he could not reasonably have expected to be bound.” Id. ¶ 25; see
also In re Adoption of B.Y., 356 P.3d 1215, ¶ 33 (Utah 2015) (citing
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
Nevares as example of case in which “a father’s due process right to
be heard is infringed where his rights are foreclosed for failure to
comply with the Adoption Act” because he could not have known
his child would be born in Utah and placed for adoption).13
¶42 Mother Goose relies on Heidbreder, a case factually
similar to this one. In Heidbreder, the Minnesota Supreme Court
affirmed the lower court’s strict application of that state’s putative
fathers registry to an out-of-state father who was deceived by the
mother and did not know she had left their home state of Iowa and
had gone to Minnesota, where she had given birth to the child and
consented to the child’s adoption. 645 N.W.2d at 360-62, 369. On
the thirty-first day after the child was born, the father learned the
mother had given birth in Minnesota, and he mailed the required
forms to the Minnesota Fathers’ Adoption Registry, which he found
on the internet. Id. But his registration was one day late; he was
required to register no later than thirty days after the child’s birth.
Id. at 365. The court rejected the father’s argument that the mother’s
conduct amounted to fraud that excused his compliance with the
Minnesota statute, and even rejected his argument that it had been
impossible for him to have timely registered under a provision in
the Minnesota statute that is similar to § 8-106.01(E). Id. at 365-69.
¶43 The court in Heidbreder also rejected the father’s
argument that application of the Minnesota statute to him violated
13 In Ellis v. Social Services Department of the Church of Jesus
Christ of Latter-Day Saints, 615 P.2d 1250, 1255-56 (Utah 1980), the
Utah Supreme Court found strong due process considerations in
applying Utah’s registry to an out-of-state father who could not
have known the child had been placed for adoption in that state.
The court found “due process requires that he be permitted to show
that he was not afforded a reasonable opportunity to comply with
the statute.” Id. at 1256. Thus, the court did not hold that
application of Utah’s registry to the out-of-state father was, per se, a
violation of due process; rather, the due process violation occurred
because he was deprived of the opportunity to establish he fell
within the impossibility exception.
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
his due process rights, specifically his right to establish his inchoate
parental rights. See id. at 372-76. The court concluded the father did
not have an established relationship with the child; therefore, “the
only due process issue is whether the state ‘has adequately protected
his opportunity to form such a relationship.’” Id. at 373, quoting Lehr,
463 U.S. at 262-63. It based its conclusion that the father’s limited
due process rights had not been violated in part on the fact that
under Minnesota’s statute, a putative father who failed to timely
register but commenced a still-pending paternity action within
thirty days of the child’s birth, was not prohibited from bringing or
maintaining an action to assert his interest in the child while an
adoption remained pending. Id. at 374-75. The court reasoned that,
because the statute did not require such an action to be filed in
Minnesota, application of the Minnesota statute to him did not
deprive him of the opportunity to assert his parental rights. Id. The
court stated that the father could have commenced a paternity action
in his home state of Iowa or any other state, or filed with the
paternity registry in another state, to establish his commitment to
the child before the mother consented to the adoption.14 Id. at 375.
14Unlike Minnesota’s statute, Arizona’s statutes in the context
of an adoption under § 8-106 provide no such alternative means for
a putative father to assert his rights. In adoption proceedings, a
putative father must not only register under § 8-106.01, he must file
a paternity action in Arizona pursuant to title 25 of Arizona’s
statutes and serve the mother in order to assert his rights, assure that
he receive notice of an adoption, and require his consent before an
adoption may be completed. See Marco C., 218 Ariz. 216, ¶ 18, 181
P.3d at 1142 (suggesting father’s failure to timely register alone
sufficient ground for proceeding with adoption without his consent
and refusing to address issue related to untimely service of paternity
action). But see David C. v. Alexis S., 238 Ariz. 174, ¶¶ 16, 19, 358 P.3d
595, 599 (App. 2015), review granted (Ariz. Jan. 5, 2016) (finding
“putative fathers registry supplements and does not supplant a
father’s right to pursue a paternity action” and finding timely
service of paternity action required father’s notice of adoption and
consent of father who failed to timely register). But, even if we were
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
Notably, the court reached this conclusion in the context of adoption
proceedings, applying a statute that provided alternative means for
a putative father to assert his rights.
¶44 But here, in the context of a severance action, pursuant
to § 8-533(B)(6), our legislature has plainly established that a
putative father’s failure to file a notice of paternity with Arizona’s
registry alone is a ground for terminating his rights. Section 8-
533(B)(6) provides no exception or alternative means for a putative
father to assert his rights and avoid the plain effect of failing to
register, nor does it link termination under the statute to adoption
proceedings under § 8-106. The legislature enacted § 8-533(B)(6)
eight years after it created the registry, and its intent was made plain
by the clear, straightforward language. See 2002 Ariz. Sess. Laws,
ch. 173, § 4; 1994 Ariz. Sess. Laws, ch. 116, § 2. Frank’s reliance on
the procedures in the adoption context under § 8-106 is therefore
unavailing.15 The question remains, then, whether the requirements
of Arizona’s registry could, consistent with due process, be applied
to Frank, given that the earliest he learned about E.E.’s May birth in
to agree with the court in David C., its reasoning does not apply in
the context of a severance under § 8-533(B)(6).
15In contrast, § 8-533(B)(5), enacted just a year after § 8-106.01,
see 1995 Ariz. Sess. Laws, ch. 221, § 5, provides a father’s rights may
be terminated if he fails to file a paternity action under title 25
within thirty days of service of the notice of impending adoption
pursuant to § 8-106(G), which requires a mother to serve on any
potential father named by the mother or any putative father who has
filed a notice of paternity under § 8-106.01. Section 8-533(B)(5) is
therefore expressly linked to adoption proceedings under § 8-106.
Had the legislature wanted to, it could have made the severance
statutes less onerous by providing narrower grounds for
termination: failure to file a notice of paternity under § 8-106.01 or
another state’s registry, a paternity action under title 25 within the
specified time limit, or a paternity action in another jurisdiction. See
In re Casey G., 223 Ariz. 519, ¶ 7, 224 P.3d 1016, 1018 (App. 2010).
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
Arizona was August 28, well beyond the thirty-day period
prescribed in § 8-106.01(B).
¶45 The juvenile court found and the record shows that
until August 28, when Frank appeared for the hearing on his
California paternity petition and was served with Mother Goose’s
request for an order quashing the California proceeding on the
ground that Arizona was E.E.’s “home state,” Frank had no notice
that E.E. had been born in Arizona or that proceedings relating to
E.E. were being conducted in this state.16 Rachel knew Frank likely
was the father, knew he opposed adoption, and, as the court found,
she went to Arizona for the purpose of eluding Frank and thwarting
any effort by him to block an adoption. By the time Frank did learn
E.E. had been born in Arizona, E.E. was close to four months old.
Frank is therefore correct that Rachel, and to some degree Mother
Goose, created the very situation that formed the basis for the first-
amended severance petition. This court has held in the analogous
situation where abandonment is the ground for terminating a
parent’s rights, a parent’s lack of contact and a relationship with a
child cannot be the basis for a finding of abandonment for purposes
of § 8-533(B)(1), when the petitioner created the circumstances that
resulted in a parent’s lack of contact. Calvin B. v. Brittany B., 232
Ariz. 292, ¶ 1, 304 P.3d 1115, 1116 (App. 2013) (“[A] parent who has
persistently and substantially restricted the other parent’s
interaction with their child may not prove abandonment based on
evidence that the other has had only limited involvement with the
child.”); see also Michael J., 196 Ariz. 246, ¶ 25, 995 P.2d at 687
16It is clear that Rachel’s fraudulent representations to Mother
Goose resulted in service of the § 8-106(G) notice by publication in
Arizona. We agree with Frank this could not fairly be regarded as
adequate notice to him of the impending adoption. But as we stated
above, the notice required under that statute is not implicated in a
severance proceeding under § 8-533(B)(6). In contrast, § 8-533(B)(5)
provides that a father’s parental rights may be terminated based on
his failure to file a paternity action within thirty days of completion
of service of the notice under § 8-106(G).
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Opinion of the Court
(Department of Child Safety “‘may not unduly interfere with’”
parent-child relationship and argue parent’s rights should be
terminated based on abandonment), quoting Pima Cty. No. S-114487,
179 Ariz. at 94, 876 P.2d at 1129.
¶46 But we find unpersuasive Frank’s contention that he
should be exempt from the requirements of the statute under a
theory of common law fraud based on Rachel’s deception and
Mother Goose’s false representations in this proceeding. We note,
too, as the court suggested in Heidbreder, 645 N.W.2d at 366-68, if the
legislature had wanted the mother’s deception and concealment of
facts related to the child’s birth, including the place of birth, to
excuse a putative father from strictly complying with the statute, it
would have created an exception for that kind of conduct. See In re
Casey G., 223 Ariz. 519, ¶ 7, 224 P.3d 1016, 1018 (App. 2010).
Nevertheless, even in the face of the deceptive conduct here, we
think Arizona’s impossibility provision, although different from
Minnesota’s or Utah’s, affords an out-of-state father adequate
protection and the manner in which the juvenile court applied that
provision did not violate Frank’s substantive or procedural due
process rights. See § 8-106.01(E).
¶47 Significantly, the juvenile court did not terminate
Frank’s parental rights because he had failed to register within thirty
days of E.E.’s birth, a result that could fairly be characterized as
absurd and a violation of due process under the circumstances of
this case.17 Had the court reached that conclusion, we would have
agreed with our dissenting colleague and would have reversed the
court’s ruling. Rather, the court implicitly found that it had not been
possible for Frank to register within that period and, based on the
impossibility exception under § 8-106.01(E), found the time period
commenced at the earliest on August 28, 2014, the date on which
17 We reject as absurd Mother Goose’s assertion at oral
argument before this court that until a national putative fathers
registry is created, a putative father can only be certain that his
rights are protected if he registers with every registry in every state
when he knows he has or might have impregnated a woman.
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Frank admitted he first learned E.E. was born in Arizona, requiring
him to register by September 27. The court found, at the latest “the
time limit began to run [on] October 8, 2014[,] when he was
appointed Arizona counsel.” Therefore, the court concluded, Frank
was “required to register no later than November 7, 2014.” That
interpretation and application of the statute avoided the absurdity of
requiring Frank to comply with the statute of a state where neither
he nor the child’s mother lived or had a relationship, and where he
did not know and had no reason to know the child would be or had
been born.
¶48 But Frank did not file a notice of paternity with the
registry at any point, much less within thirty days after he had
actual notice of the child’s birth in Arizona. Despite their improper
conduct, neither Rachel nor Mother Goose prevented Frank from
filing a notice of paternity within thirty days after August 28, that is,
by September 27 at the earliest or within thirty days of October 8,
which was November 7, at the latest; that was Frank’s decision. The
primary deception had already occurred by the time the thirty-day-
period commenced for purposes of the impossibility exception. As
the juvenile court correctly found, “[t]he deceitful acts of the mother
do not void the duty of the unwed father to strictly comply with
registration . . . . The father had the ability to register
notwithstanding the mother’s fraudulent practices and chose not to
do so.”
¶49 Frank suggests that in light of the important right here
and the actions he took to assert and preserve his rights—filing and
serving the California petition and coming to Arizona to litigate the
severance petition and filing a response—the juvenile court should
not have required him to register at all. Frank essentially is asking
this court to find that substantial or substitute compliance with the
statute should have been sufficient under the circumstances of this
case. There is facial appeal to his argument that he had already put
Rachel, Mother Goose, and the adoptive parents on notice of his
opposition to the adoption and desire for custody of E.E., and our
dissenting colleague would reverse on that basis. But neither the
statute nor case law supports this argument.
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¶50 This court has already held that the putative fathers
registry statute must be strictly applied; substantial compliance is
insufficient. Marco C., 218 Ariz. 216, ¶¶ 9, 10, 181 P.3d at 1140-41; see
also Heidbreder, 645 N.W.2d at 369 (declining to “carve out a
substantial compliance exception” and finding legislature’s
inclusion of impossibility exception reflects it did not intend to
excuse compliance based on substantial compliance). Nor is
substitute compliance sufficient. As stated above, had the
legislature wanted to, it could have provided alternative grounds for
terminating a putative father’s parental rights and not made failure
to comply with § 8-106.01 alone an independent, discrete basis for
termination. It could have carved out exceptions to its application
for putative fathers who have otherwise sought to develop their
inchoate rights, such as a fraud exception or a circumstance in which
substantial or substitute compliance would have sufficed. But it did
not do so. Rather, it seems to have made a policy decision to draw a
bright-line rule with respect to putative fathers’ assertion of their
rights. While we agree with the dissent that the result may be harsh
in this case in light of egregiously deceptive conduct, creating a fact-
based excuse for compliance with the statute takes us down a
potentially slippery slope, where other putative fathers may argue
their acts gave the relevant parties notice of their assertion of their
rights and rendered compliance superfluous. But it is not for the
courts to “rewrite statutes to effectuate a meaning different than the
one the legislature intended.” Parker v. City of Tucson, 233 Ariz. 422,
¶ 20, 314 P.3d 100, 108 (App. 2013). Unless the application of a clear,
unambiguous statute according to its plain terms results in
consequences that are impossible or absurd, we will not infer terms
that do not exist because the language our legislature used is
generally conclusive evidence of its intent. Reeves v. Barlow, 227
Ariz. 38, ¶ 12, 251 P.3d 417, 420 (App. 2011); see also In re Nickolas S.,
226 Ariz. 182, ¶ 18, 245 P.3d 446, 450 (2011) (“[C]ourts cannot
salvage statutes by rewriting them because doing so would invade
the legislature’s domain.”); City of Phoenix v. Butler, 110 Ariz. 160,
162, 515 P.2d 1180, 1182 (1973) (courts do not “rewrite statutes,”
rather it is for legislature to determine “the appropriate wording” of
a statute and “the court may not substitute its judgment for that of
the Legislature”).
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Opinion of the Court
¶51 In any event, Frank did not file a paternity action in
Arizona until March 24, 2015, nearly seven months after he first
learned E.E. had been born in Arizona. To the extent Frank is
arguing that because he is an out-of-state father, the California
petition should be regarded as sufficient compliance with the
registry, we disagree with that argument as well. The clear
language of the statute does not support that interpretation.18
¶52 The decision by another division of this court in
David C., on which Frank relies in his reply brief, does not persuade
18Although we reject Frank’s apparent argument that by filing
his California petition he adequately asserted his rights and that the
petition, together with his response to the severance petition, should
be viewed as compliance with § 8-106.01, we are not certain in any
event that he adequately established his rights under California law.
Frank asserts his petition was timely under California law, citing
Cal. Fam. Code § 7630, but the validity of that assertion is unclear in
light of testimony during the severance hearing, particularly that of
Ted Youmans, a California attorney with expertise in the area of
adoptions and guardianships, who litigated two of California’s
primary cases regarding unwed fathers. Youmans explained that
although there is no paternity registry in California, alleged fathers
must come forward during the mother’s pregnancy and
demonstrate full commitment to a child and must file a petition,
which can be filed during pregnancy, to establish himself as a father
and attain what is referred to as “presumed father” status, entitling
him to notice of all proceedings and requiring his consent for an
adoption. He did not believe Frank had risen to the level of a
presumed father whose consent would be necessary. Although he
testified there is no fixed deadline for filing the petition, Wendy
McGreevy, the attorney from the Center, testified that under Cal.
Fam. Code § 7630 as well as §§ 7664 through 7666, Frank had thirty
days from either the child’s birth or notice of alleged paternity,
whichever comes first, to file the petition. Based on her testimony,
Frank, who testified he knew Rachel’s due date was May 5, 2014,
does not appear to have filed a timely petition under California law.
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Opinion of the Court
us we must reach a different conclusion here. That case, unlike this
one, involved an appeal from the juvenile court’s grant of the
putative father’s motion to set aside an adoption. 238 Ariz. 174, ¶ 1,
358 P.3d at 596. The juvenile court in that case had granted the
putative father’s motion because although the father had not filed a
notice of claim of paternity under § 8-106.01, he had filed and served
the mother with a paternity action under title 25 within thirty days
of the § 8-106(G) notice, which was served by publication. Id.
¶¶ 9, 10. The court concluded “the putative fathers registry
supplements and does not supplant a father’s right to pursue a
paternity action.” Id. ¶ 16. The court distinguished Marco C. based
on the fact that in that case, the father had not timely served the
mother with the paternity action and, therefore, the outcome in that
case would have been the same without regard to the waiver
provision of § 8-106.01(E). Id. ¶ 21. The court added, in any event,
“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.” Id. ¶ 21.
¶53 Similarly, in an earlier decision, another department of
this court seemed to suggest that, but for the fact that the mother
had not been served with the father’s initial or amended Texas
paternity complaint within thirty days of service on the father of the
notice under § 8-106(G), the Texas action might have satisfied the
requirement of § 8-106(G)(3) and (4), requiring the filing of a
paternity action under title 25. Jared P. & Glade T., 221 Ariz. 21,
¶¶ 15-16, 209 P.3d 157, 160 (App. 2009).
¶54 We need not resolve the possible conflict between the
decisions by two departments of this court. Neither case involved
termination of the putative father’s rights pursuant to § 8-533(B)(6)
and the requirements of § 8-106.01 in the context of a severance
proceeding. Indeed, in Jared P., the court noted the distinction
between an action to terminate a father’s rights pursuant to § 8-
533(B)(5), failure to file a paternity action “as prescribed in § 8-106,
subsection G,” and notice and consent requirements in § 8-106. 221
Ariz. 21, ¶ 30, 209 P.3d at 163. As we previously stated, nothing in
§ 8-533(B)(6) states or even suggests that filing a paternity action,
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
whether in Arizona or another state, takes the place of the putative
father’s obligation to file a notice under the putative fathers registry.
¶55 As part of his due process arguments, Frank appears to
assert a choice-of-law issue, suggesting California law should have
been applied. We have addressed the application of California law
in this matter in various regards above, but Frank did not raise a
true choice-of-law argument below. The gravamen of his argument
was that because of the fraud perpetrated by Rachel and Mother
Goose, the proceedings were unfair, he was deprived of notice, and
his due process rights were violated. He argued he was not
required to comply with Arizona law “because he had already
asserted his interest in this child [and] . . . had given notice to the
world that he was” a putative father seeking “orders to find him to
be the legal father.” And, he argued, he protected his rights with the
pro se response to the severance petition that he filed in October.
His attorney asserted, “[W]hat would his filing [with the putative
fathers registry] have accomplished that had already not been
accomplished[?]” But Frank did not argue below that he was
entitled to application of California law, only that under the present
facts, no purpose would be served by registering. The issue is
therefore waived and having already addressed these arguments in
the context of Frank’s due process claims, we do not address them
further. See Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, n.3, 178
P.3d 511, 516 n.3 (App. 2008) (parent waives claims raised for first
time on appeal).
¶56 Frank also failed to adequately preserve any argument
that his rights under the Fifth and Fourteenth Amendments to the
Constitution were violated because Mother Goose is a state-licensed
agency and, therefore, its deception was “state action” that deprived
him of his fundamental right to parent and develop a bond with his
child. Accordingly, we do not address it further. See id. (parent
waives claims, including constitutional claims, raised for first time
on appeal). In any event, this argument overlapped with his due
process arguments, which we have addressed.
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
Child’s Best Interest
¶57 Frank also challenges the juvenile court’s finding that
termination of his parental rights is in the child’s best interest. He
contends that, because he has a fundamental constitutional right to
the care, custody, and control of his child, it was inappropriate for
the court to compare his circumstances with those of the adoptive
parents. He argues that when the interest is “between a fit parent,
the father, and a private third party, Mother Goose Adoptions, both
parties do not begin on equal footing.” To the extent Frank is
suggesting Mother Goose was required to prove him unfit, he is
mistaken.
¶58 A court may not terminate a parent’s rights unless the
court finds clear and convincing evidence establishes one of the
statutory grounds set forth in § 8–533(B), Michael J., 196 Ariz. 246,
¶ 12, 995 P.2d at 685, and a preponderance of the evidence
establishes severance is in the child’s best interests, Kent K., 210 Ariz.
279, ¶ 22, 110 P.3d at 1018. We do not reweigh the evidence on
appeal because “[t]he juvenile court, as the trier of fact in a
termination proceeding, is in the best position to weigh the
evidence, observe the parties, judge the credibility of witnesses, and
make appropriate findings.” Jesus M., 203 Ariz. 278, ¶ 4, 53 P.3d at
205. Thus, we view the evidence in the light most favorable to
upholding the order. Manuel M., 218 Ariz. 205, ¶ 2, 181 P.3d at 1128.
¶59 As Frank acknowledged at oral argument before this
court, the best-interest determination in this case, as in any
severance proceeding, is a highly discretionary determination for the
juvenile court to make, and we give great deference to its decision.
Cf. Black v. Black, 114 Ariz. 282, 284, 560 P.2d 800, 802 (1977) (finding,
in marital dissolution and custody action, that trial judge is in the
best position to determine the issues and “is given wide discretion in
deciding what will be in the best interests of the child”). We will not
disturb the court’s order unless the factual findings upon which it is
based “are clearly erroneous, that is, unless there is no reasonable
evidence to support them.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 376, ¶ 2, 982 P.2d 1290, 1291 (App. 1998).
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
¶60 The juvenile court’s order reflects that it considered and
weighed the evidence relevant to E.E.’s best interest. See
Demetrius L. v. Joshlynn F., No. CV-15-0274-PR, ¶¶ 1, 15-17, 2016 WL
116104 (Ariz. Jan. 12, 2016) (reviewing criteria for best-interest
determination in severance and finding same factors applicable in
private severance, including prospect of adoption, as in proceeding
initiated by the state). The court considered Frank’s conduct before
E.E. was born, the fact that Frank’s paternity has been established,
and his wish to establish a relationship with the child. The court
stated it gave “special, presumptive weight to the father’s natural
desire to raise his own child,” finding that desire to be “genuine and
heartfelt.” The court considered the benefit and detriment to the
child of granting and denying the severance petition but concluded,
“Staying in the same home, environment and surroundings that he
has known since birth will benefit the minor and not cause trauma
to the child. Childhood stability is an important but not a
controlling factor in determining the best interest of the minor.” The
court concluded “that given all the circumstances, it is in the best
interests of the child to sever the parental rights of the father.”
¶61 The juvenile court carefully weighed the evidence
before it and did not consider inappropriate factors. The evidence
supports the court’s findings that relate to E.E.’s best interest and
therefore supports its conclusion that ultimately termination of
Frank’s parental rights is in E.E.’s best interest. We have no basis for
disturbing that ruling.
Sanctions
¶62 This case raises serious concerns about the conduct of
Mother Goose and its counsel throughout these proceedings. In
addition to blatant misrepresentations by Mother Goose’s Executive
Director in connection with the ICPC referral, the pleadings were
filed in the Pima County Juvenile Court without regard to this
state’s venue statute and repeatedly contained materially inaccurate
allegations. We do not believe, however, that our authority to
impose sanctions under Rule 25, Ariz. R. Civ. App. P., which applies
to juvenile appeals, see Ariz. R. P. Juv. Ct. 103(G), authorizes this
court to impose sanctions for conduct that occurred in the juvenile
court. Moreover, there may be factual and other questions relating
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
to this conduct that are for the juvenile court to assess and resolve,
not this court. However, we can, and do, impose sanctions against
Mother Goose and its attorneys for its frivolous cross-appeal.
¶63 “[A] frivolous appeal is one brought for an improper
purpose or based on issues which are unsupported by any
reasonable legal theory.” Johnson v. Brimlow, 164 Ariz. 218, 222, 791
P.2d 1101, 1105 (App. 1990). Because there is a fine line between a
frivolous appeal and one that simply lacks merit, we use sparingly
the power to sanction attorneys or litigants for prosecuting frivolous
appeals. Price v. Price, 134 Ariz. 112, 114, 654 P.2d 46, 48 (App. 1982).
Based on the record before us, and overwhelming evidence that
Rachel and Mother Goose created the circumstances that were the
primary basis for Frank’s purported abandonment of E.E., we find it
frivolous for Mother Goose to have challenged the juvenile court’s
finding that Mother Goose did not sustain its burden of proving
Frank abandoned E.E.
¶64 We commend Mother Goose’s counsel for withdrawing
the cross-appeal at oral argument. But by that point, Frank’s counsel
had been compelled to answer Mother Goose’s opening brief and
prepare for argument, and this court was required to review the
issue as well. It is entirely appropriate for this court sua sponte to
impose sanctions on parties or their attorneys for burdening this
court with a meritless appeal. Id. We therefore award Frank
reasonable attorney fees against Mother Goose and its counsel as a
sanction under Rule 25, upon compliance with Rule 21, Ariz. R. Civ.
App. P.
Disposition
¶65 By affirming the termination of Frank’s parental rights,
we do not in any respect condone Rachel’s conduct or that of Mother
Goose and possibly its counsel.19 And we agree with our dissenting
19Similarly, this decision should not be construed as
expressing any opinion about non-custodial causes of action Frank
may assert for the misconduct.
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Opinion of the Court
colleague that Rachel’s dishonesty and Mother Goose’s “self-serving
‘oversights’” have resulted in litigation that “can have only an
unsettling outcome,” particularly at this juncture. We also share the
juvenile court’s concern that our decision “may on its face encourage
mothers to seek interstate adoptions in Arizona without notice to a
likely and known father.” But, as that court observed, “[s]uch an
outcome would be rare when the father registers with the putative
father registry within thirty days of prompt discovery of the Arizona
birth,” which would eliminate § 8-533(B)(6) as a ground for
termination of a father’s rights. The record and the court’s ruling
reflect that it correctly applied the law and carefully considered and
weighed the evidence before it. Therefore, although we do so
reluctantly, as the dissent notes, we affirm the juvenile court’s order
terminating Frank’s parental rights pursuant to § 8-533(B)(6).
E C K E R S T R O M, Chief Judge, dissenting:
¶66 Due to the dishonest actions of the birth mother and the
strategic, self-serving “oversights” of an adoption agency, this court
is faced with resolving litigation that now, over twenty months after
E.E’s birth, can have only an unsettling outcome. This court must
render a decision that has the practical effect of either: (1) removing
E.E. from the only parents and family he has ever known in his
young life or (2) depriving a father, who has persistently asserted his
desire to parent his child, of any legal status with regard to his son
and, in so doing, rewarding unconscionable behavior by the birth
mother and adoption agency.
¶67 The majority’s scholarly, comprehensive opinion aptly
articulates the controlling legal principles that address Frank’s
claims and reluctantly rejects them. I join in that well-written
opinion in every respect but one.
¶68 The majority and the trial court have correctly found
that Frank could not have possibly complied with Arizona’s
requirement that he register as a putative father until, at the earliest,
August 28, 2014. Both conclude, however, that his failure to file a
notice of paternity pursuant to A.R.S. § 8-106.01 thereafter
constituted a lawful ground to terminate his parental rights
pursuant to A.R.S. § 8-533(B)(6). Supra ¶¶ 49-51. But by that time,
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Opinion of the Court
when Frank’s intention to assert his paternity had been
unequivocally demonstrated through a motion in California court,
and when Mother Goose had moved in an Arizona court to
terminate Frank’s parental rights, any § 8-106.01 filing would have
served no purpose whatsoever. At that stage in the proceedings, our
legislature could not have intended that a putative father perform a
futile and superfluous act to preserve his fundamental right to
parent. See Stanley v. Illinois, 405 U.S. 645, 651 (1972).
¶69 Our state requires that putative fathers file a notice of
paternity pursuant to § 8-106.01 or risk the termination of their
parental rights. § 8-533(B)(6). In so filing, the putative father must
both assert his paternity and avow that he possesses the
“willingness and intent to support the child.” § 8-106.01(A). That
requirement, and the attendant statutory scheme, protects the
putative father by assuring that no adoption may occur without the
father receiving a procedural opportunity to file a paternity action
pursuant to title 25. See A.R.S. §§ 8-106.01(G) (giving father 30 days
to file paternity action); 8-106(G) (requiring that each putative father
who has registered under § 8-106.01 receive notice alerting him of
right to challenge adoption); 25-801 through 25-818 (title governing
paternity proceedings). Perhaps most importantly, the registry
protects the interests of the child by requiring that any assertions of
paternity be made promptly so that the child’s permanent home can
be established with minimal delay. See § 8-106.01(G) (putative father
to file paternity action within thirty days of § 8-106 notice of
adoption).
¶70 By the date on which my colleagues agree that § 8-
106.01 registration was first possible, each of the legislative purposes
of such filing had already been achieved by the process of litigation
or previously defeated by the strategic actions of the mother and
adoption agency. By August 28, 2014, Frank had filed an action for
paternity in California demonstrating his intention and willingness
to support the child. Rachel and Mother Goose had thereafter
received legal notice of that filing and had reacted by moving, in
Arizona court, to terminate Frank’s paternity. Thus, our state court
and all potential litigants had been placed on proper legal notice of
Frank’s intention to assert his paternity and an Arizona proceeding
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FRANK R. v. MOTHER GOOSE ADOPTIONS
Opinion of the Court
had been initiated which, properly conducted, would provide Frank
a procedural opportunity to defend his parental rights.
¶71 Regrettably, the last purpose of § 8-106.01—to assure
that any assertions of paternity be resolved in our courts promptly—
had not been achieved due to the dishonesty of the mother in failing
to list Frank as a potential father and provide prompt notice to Frank
of her intent to seek adoption as required under § 8-106(F) and (G).
But Frank, who had persistently asserted his desire to parent the
child, bore no responsibility for that delay. Nor could a superfluous
§ 8-106.01 filing of a notice of paternity thereafter remedy the delay.
At that stage in the proceedings, the sole effect of Frank registering
as a putative father pursuant to § 8-106.01 would be to provide
notice that he was asserting his parental rights—a sine qua non of the
Arizona action to terminate Frank’s paternity, which had already
commenced. During oral argument, Mother Goose conceded that
Frank’s failure to comply with § 8-106.01 after August 28, 2014, did
not cause any further delay in the proceedings.
¶72 The majority maintains that Frank’s actions, in filing the
claim of paternity in California and promptly contesting Arizona’s
motion to terminate, can be viewed only as substantial compliance
with the requirements of § 8-106.01 and that strict compliance was
still required. Supra ¶ 50. But whether a particular legislative
scheme requires substantial or strict compliance is a question of
legislative intent. See Marco C. v. Sean C., 218 Ariz. 216, n.2, 181 P.3d
1137, 1140 n.2 (App. 2008) (citing Arizona cases so holding). I agree
there is sound logic in requiring strict compliance with time
deadlines designed to protect the permanency interests of the child
at the expense of an ambivalent and dilatory putative father, a clear
legislative purpose of § 8-106.01. See id. ¶ 9. But I can fathom no
legislative purpose at all in similarly requiring a father to file a
functionally superfluous notice when, as here, litigation to clarify his
paternal rights has already commenced with full notice to all parties.
See David C. v. Alexis S., 238 Ariz. 174, ¶¶ 16-21, 358 P.3d 595, 599
(App. 2015) (where father has timely filed paternity action,
compliance with § 8-106.01 is unnecessary; “the putative fathers
registry supplements and does not supplant a father’s right to
pursue a paternity action”); cf. Owens v. City of Phoenix, 180 Ariz. 402,
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Opinion of the Court
409, 884 P.2d 1100, 1107 (App. 1994) (excusing failure to exhaust
administrative remedies based on futility). To require strict
compliance under the circumstances here would transform § 8-
106.01 into nothing more than a “pitfall for the unwary.” Nielson v.
Patterson, 204 Ariz. 530, ¶ 13, 65 P.3d 911, 914 (2003). In the absence
of any statutory language expressly compelling another result, we
should not assume from legislative silence that our legislature
intended such an absurd and unjust result. See State v. Affordable Bail
Bonds, 198 Ariz. 34, ¶ 13, 6 P.3d 339, 342 (App. 2000) (“‘Statutes must
be given a sensible construction that accomplishes the legislative
intent and which avoids absurd results.’”), quoting Ariz. Health Care
Cost Containment Sys. v. Bentley, 187 Ariz. 229, 233, 928 P.2d 653, 657
(App. 1996).
¶73 Therefore, under all the circumstances of this case,
Frank’s failure to file a superfluous notice of paternity pursuant to
§ 8-106.01 should not constitute grounds for terminating his parental
rights. I join the well-reasoned majority opinion in all other
respects.
40