Michelle F. v. Dcs, M.B. ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MICHELLE F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, M.B., Appellees.
No. 1 CA-JV 16-0351
FILED 6-6-2017
Appeal from the Superior Court in Maricopa County
No. JD527717
The Honorable Karen L. O’Connor, Judge
AFFIRMED
COUNSEL
Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee Department of Child Safety
MICHELLE F. v. DCS, M.B.
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
W I N T H R O P, Judge:
¶1 Michelle F. (“Appellant”) appeals the juvenile court’s orders
denying her motion to disestablish/establish paternity and granting DCS’s
motion for change of custody. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Kiyah-Tee Clarice Pease (“Mother”) gave birth to M.B. (“the
child”) in September 2013 and left Arizona shortly thereafter. The child
stayed in Arizona and resided with Bobby Bonwell (“Father”).1 At the time,
Father was involved in a romantic relationship with Appellant, and
Appellant and her minor son lived with Father and the child.
¶3 In May 2014, DCS took the child into temporary physical
custody and alleged he was dependent as to Mother, who was incarcerated
in South Dakota at the time, and Father, due to substance abuse. After
Father moved out of the home he shared with Appellant, the child was
placed with Appellant. Two months after the juvenile court found the child
dependent, Father died. The juvenile court later terminated Mother’s rights
to the child, and the child became eligible for adoption.2
¶4 In March 2015, while the child was still placed with
Appellant, Appellant was involved in a domestic dispute with a man who
was living in her home. Around the same time, Appellant’s minor son
made statements at school that led to a child molestation investigation. The
child was removed from Appellant’s care, but he was ordered returned to
1 Father’s paternity was established through a voluntary
acknowledgment of paternity, and he is listed as the father on the child’s
birth certificate.
2 Mother’s rights are not at issue in this appeal.
2
MICHELLE F. v. DCS, M.B.
Decision of the Court
her two months later, on the condition that a safety monitor reside in the
home.3
¶5 Appellant then began the certification process to adopt the
child. However, in December 2015, DCS moved for a change of physical
4
custody, requesting the child be removed from Appellant’s care.5 The court
did not immediately rule on the motion.
¶6 As part of the adoption certification process, Appellant was
required to participate in a home study. An initial home study report
recommended Appellant be certified to adopt the child, but a subsequent
report recommended against certification due to “numerous
inconsistencies provided by [Appellant] regarding her medical diagnoses,
prescribed medications, income, history of substance abuse[,] and DCS
involvement.” The author of the initial home study report later retracted
her recommendation for certification.
¶7 In March 2016, Appellant revealed that her adult son, Charles
Taylor, was involved in a sexual relationship with Mother at the time the
child was conceived. DNA testing confirmed that Taylor is the biological
father of the child, making Appellant the child’s biological paternal
grandmother. Based on the DNA test results, Appellant moved for court
orders disestablishing the paternity of Father (who had died approximately
eighteen months earlier) and establishing the paternity of Taylor.
¶8 After an evidentiary hearing, the juvenile court denied
Appellant’s motion, concluding that she lacked standing pursuant to
3 DCS also removed Appellant’s minor son from her care and filed a
dependency action.
4 Appellant’s minor son was still in out-of-home care while that
dependency case proceeded, but he was eventually returned to her after she
successfully completed reunification services.
5 As reasons for its request, DCS cited, among other things,
Appellant’s history of being in abusive relationships, her history of
substance abuse, her inability to obtain a fingerprint clearance card due to
prior criminal convictions, and the dependency action involving her minor
son.
3
MICHELLE F. v. DCS, M.B.
Decision of the Court
Arizona Revised Statutes (“A.R.S.”) section 25-803(A) (2017)6 and, even
assuming standing, her motion was untimely under A.R.S. § 25-812(E)
(2017).7 Finding Father “is considered the child’s legal father,” the court
concluded Appellant “is not a legal grandparent under Arizona law.” The
court also granted DCS’s motion to have the child removed from
Appellant’s care.
¶9 Appellant timely appealed, and we have jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A)
(2014); and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile
Court.
ANALYSIS
¶10 Appellant argues the juvenile court erred in denying her
motion to disestablish/establish paternity and abused its discretion in
granting DCS’s motion to change physical custody.
I. Motion to Disestablish/Establish Paternity
a. Standard of Review
¶11 Because Father’s voluntary acknowledgment of paternity had
“the same force and effect as a superior court judgment,” see A.R.S. § 25-
812(D), we construe Appellant’s motion to disestablish/establish paternity
as a motion for relief from judgment. See Ariz. R. Civ. P. 60. We review a
juvenile court’s denial of a motion for relief from judgment for an abuse of
discretion, State ex rel. Brnovich v. Culver, 240 Ariz. 18, 19-20, 375 P.3d 83, 84-
85 (App. 2016), but review de novo the interpretation of statutes and rules.
Andrew R. v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 453, 456, 224 P.3d 950, 953
(App. 2010).
6 A.R.S. § 25-803(A) provides that proceedings to establish paternity
may be commenced by (1) the mother, (2) the father, (3) the guardian,
conservator, or best friend of a child born out of wedlock, (4) a public
welfare official or agency, or (5) the state.
7 “Pursuant to rule 85(c) of the Arizona rules of family law procedure,
the mother, father or child, or a party to the proceeding on a rule 85(c)
motion, may challenge a voluntary acknowledgment of paternity
established in this state at any time after the sixty day period only on the
basis of fraud, duress or material mistake of fact . . . .” A.R.S. § 25-812(E).
4
MICHELLE F. v. DCS, M.B.
Decision of the Court
b. Standing
¶12 Appellant contends the juvenile court erred in relying on
A.R.S. § 25-803(A) to determine she lacked standing, and instead should
have considered the statutes addressing legal decision-making and
parenting time. According to Appellant, because she stands in loco parentis
to the child, she has standing to commence paternity proceedings pursuant
to A.R.S. § 25-409 (2017). But A.R.S. § 25-409 establishes third party rights
as they pertain to legal decision-making authority or placement of the child.
See A.R.S. § 25-409(A) (stating that, under certain circumstances, “a person
other than a legal parent may petition the superior court for legal decision-
making authority or placement of the child”). Appellant did not seek legal
decision-making authority or placement of the child under Title 25. Rather,
Appellant has commenced paternity proceedings, and a party’s standing to
commence paternity proceedings is established pursuant to A.R.S. § 25-
803(A). Accordingly, the juvenile court did not err in relying on A.R.S.
§ 25-803(A) to determine Appellant lacked standing to commence paternity
proceedings.
¶13 Appellant further asserts that, even assuming A.R.S. § 25-
803(A) applies, the juvenile court incorrectly concluded she lacked standing
because she is “at the minimum, the ‘best friend of a child . . . born out of
wedlock.’” See A.R.S. § 25-803(A)(3). However, Appellant does not
develop this argument or provide support with citations to relevant
authorities. Consequently, that argument is waived. See Polanco v. Indus.
Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (stating
that the failure to develop and support an argument waives the issue on
appeal).
¶14 Appellant next argues the juvenile court erroneously relied
on A.R.S. § 25-812(D) instead of A.R.S. § 25-812(E) to conclude she lacked
standing. Under A.R.S. § 25-812(D), a properly executed voluntary
acknowledgement of paternity may be filed with Arizona Department of
Economic Security (“ADES”), which shall provide a copy to the
Department of Health Services, and those actions and that affidavit have
“the same force and effect as a superior court judgment.” See also Andrew
R., 223 Ariz. at 457, ¶ 18, 224 P.3d at 954. Here, Father’s name appears on
the child’s birth certificate because, shortly after the child’s birth, Father
signed an affidavit of paternity, which was filed with ADES. Therefore, the
juvenile court did not err in concluding, pursuant to A.R.S. § 25-812(D), that
Father is the child’s legal father and Appellant is not a legal grandparent
under Arizona law.
5
MICHELLE F. v. DCS, M.B.
Decision of the Court
¶15 Appellant relies on A.R.S. § 25-812(E) to support her
argument that the juvenile court should have vacated the judgment of
Father’s paternity and established the paternity of Taylor. A.R.S. § 25-
812(E) states:
Pursuant to rule 85(c) of the Arizona rules of family law
procedure, the mother, father or child, or a party to the
proceeding on a rule 85(c) motion, may challenge a voluntary
acknowledgment of paternity established in this state at any
time after the sixty day period only on the basis of fraud,
duress or material mistake of fact . . . . The court shall order
the mother, her child or children and the alleged father to
submit to genetic testing . . . . If the court finds by clear and
convincing evidence that the genetic tests demonstrate that
the established father is not the biological father of the child,
the court shall vacate the determination of paternity and
terminate the obligation of that party to pay ongoing child
support.
According to Appellant, the DNA test results in this case constituted “clear
and convincing evidence” that Father is not the biological father of the
child, which required the juvenile court to vacate the judgment of Father’s
paternity and establish the paternity of Taylor. But Appellant’s reliance on
A.R.S. § 25-812(E) is misplaced because A.R.S. § 25-812(E), when read in its
entirety, applies only in circumstances where the individual challenging
paternity establishes fraud, duress, or material mistake of fact. Here,
Appellant has not made such claims, instead contending the DNA test
results constitute “newly discovered evidence.” Accordingly, the juvenile
court did not err in denying Appellant’s motion to vacate the judgment
establishing Father’s paternity.
c. Timeliness
¶16 Appellant also argues that, pursuant to Arizona Rule of
Family Law Procedure 85(C), her motion to disestablish/establish paternity
was timely because she filed the motion “sixty days after the DNA tests
revealed her son was the biological father.” Arizona Rule of Family Law
Procedure 85(C)(1)(b) permits a party to move for relief of a final judgment
based on newly discovered evidence, however, such motions must be filed
“not more than six (6) months after the judgment or order was entered.”
Ariz. R. Fam. Law P. 85(C)(2). Here, Father’s paternity was established
around the time of the child’s birth in 2013, and Appellant moved for the
disestablishment/establishment of paternity in 2016, more than two years
6
MICHELLE F. v. DCS, M.B.
Decision of the Court
later. Accordingly, the juvenile court did not err in concluding Appellant’s
motion was untimely.
II. DCS’s Motion to Remove the Child/Change Physical Custody
¶17 Appellant also challenges the juvenile court’s grant of DCS’s
motion for a change of physical custody. We review the juvenile court’s
orders on placement of a child for an abuse of discretion. Antonio P. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 402, 404, 187 P.3d 1115, 1117 (App. 2008). The
juvenile court is “in the best position to weigh the evidence, observe the
parties, judge the credibility of witnesses, and make appropriate findings.”
Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205
(App. 2002).
¶18 Appellant argues it is not in the child’s best interest to remove
him from her home because she is “the only consistent and loving parent
he ever had.” On the record presented, however, Appellant has not shown
the juvenile court improperly weighed the evidence or failed to consider
the child’s best interest. The juvenile court recognized the child’s bond with
Appellant, noting “[t]he child has been with [Appellant] for the majority of
his young life.” But the court also considered that the child had been
removed from Appellant’s care on two occasions, that Appellant failed to
provide truthful information during the adoption certification process, that
Appellant did not pass the fingerprint clearance requirement for adoption
certification, and that DCS would not consent to the child’s adoption by
Appellant. Accordingly, reasonable evidence supports the juvenile court’s
findings and conclusion that it was in the child’s best interest “to obtain
permanency without further delay,” and we find no abuse of discretion.
CONCLUSION
¶19 The juvenile court’s orders denying Appellant’s motion to
disestablish/establish paternity and granting DCS’s motion to change
physical custody are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
7