Anguis v. Superior Court In and For Maricopa County
| Decision Date | 07 July 1967 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 429 P.2d 702,6 Ariz.App. 68 |
| Parties | Josephine ANGUIS, Petitioner, v. The SUPERIOR COURT of Arizona IN AND FOR the COUNTY OF MARICOPA and the Honorable Thomas Tang and John Vanlandingham, Judges Thereof, Respondents. Robert Corbin, Maricopa County Attorney, Maricopa County Welfare Department, Real Party In Interest. 598. |
| Court | Arizona Court of Appeals |
Arnold M. Sodikoff, Maricopa County Legal Aid Society, Phoenix, for petitioner.
Robert K. Corbin, Maricopa County Atty., by H. Louis Hiser, Deputy County Atty., for respondents.
This is a petition for a writ of prohibition by Josephine Anguis, mother of _ _, age 3, asking this Court to restrain the Superior Court of Maricopa County and the Juvenile Judge thereof from conducting a hearing wherein it is asked that the petitioner 'appear and show cause, if any she may have, why her parental rights to _ _ should not be severed.'
After hearing upon petitioner's application for a writ of prohibition we ordered the respondents enjoined and restrained from further proceedings in relation to the petition filed in the trial court and directed that the parties hereto submit memoranda of authority to this Court on the legal and factual situation. There being no adequate remedy at law, prohibition is a proper remedy. Ginn v. Superior Court, 1 Ariz.App. 455, 404 P.2d 721 (1965), Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966).
The facts necessary for a determination of this matter are as follows. _ _ was born out of wedlock to Josephine Anguis in 1963. The present whereabouts of the natural father is unknown. On 17 March 1964 a child welfare supervisor of the Maricopa County Department of Public Welfare filed a petition with the Superior Court of Maricopa County alleging that the child was in need of the care and protection of the Juvenile Court. On 18 March 1964 hearing was held before the Juvenile Judge of Maricopa County and after a finding by the court that the child was a dependent child within the meaning of the statute, it ordered that the child be released by the Maricopa County Hospital and 'made a ward of the court committed to the care, custody and control of Maricopa County Department of Public Welfare for planning'. On 20 May 1964 another hearing was held before the Juvenile Judge of Maricopa County with the same finding and result at which time the Child Welfare Supervisor, a case worker of the Maricopa County Department of Public Welfare, and Mrs. Josephine Anguis, mother of the child and petitioner, were present.
Still another hearing was held on 29 June 1966 at which time Mrs. Anguis was also present, and after the hearing the court entered the following order:
'IT IS ORDERED that _ _ remain a ward of the court, committed to the care, custody and control of the Maricopa County Department of Public Welfare for planning.
'IT IS FURTHER ORDERED that the legal file be made available to the County Attorney for severance of parental rights.'
On 8 August 1966 a notice and order to show cause was signed by the Juvenile Judge of Maricopa County ordering the petitioner to appear before the Juvenile Division of the Maricopa County Superior Court on Wednesday, 19 October 1966, to then and there,
'show cause, if any you have, why an order should not be made and entered by this court terminating your parental rights, if any you have, over said _ _, and committing said child to the care, custody, and control and guardianship of the Maricopa County Department of Public Welfare for the purpose of placing said child for adoption, and consenting to the adoption without further notice to you; * * *'
The court further ordered that service of this notice and order be made upon the petitioner and all other persons interested by publication in the Arizona Weekly Gazette. The prayer of the petition by the County Attorney's office stated:
'WHEREFORE, petitioner prays the court to issue forthwith notice and Order to Show Cause directing Josephine Anguis to appear and show cause, if any she may have, why her parental rights to _ _ should not be severed.'
Petitioner appeared on 19 October 1966 and indicated to the court that she did not understand the nature of the hearing and expressed her desire to have counsel. The court referred petitioner to the Maricopa County Legal Aid Office to obtain counsel to represent her and continued the matter. Counsel was obtained and a motion to dismiss the petition was filed. The court denied the motion to dismiss and petitioner brought this writ seeking to prohibit the Superior Court of Maricopa County, Juvenile Division, from proceeding further upon the petition of the County Attorney for severance of petitioner's parental rights. It is the contention of the respondent Maricopa County Attorney that the reason for severing the parental right is to prepare the way for the placement of the child for adoption.
The question presented to this Court by petitioner is stated thusly:
'Does the Juvenile Court have the jurisdiction to sever parental rights as to children * * * in such manner that a child may be placed for adoption by an agency without notice to the natural parents?'
Or stated differently:
'May the Juvenile Court sever parental rights when no adoption proceedings are presently pending?'
Petitioner points out that we are not concerned in this case with the custody or possession of the child. There is no doubt that the Juvenile Court had the right to place this child with a proper agency for foster care after a finding that the child was a dependent child and that the welfare of the child demanded this be done. Insofar as the term 'parental rights' includes the right to care, custody and control by the parent there is no question that these 'rights' may be temporarily or permanently terminated by the Juvenile Court, A.R.S. § 8--231, subject to proper notice to the said parent. A.R.S. § 8--224. Application of Gault, 99 Ariz. 181, 407 P.2d 760 (1965). See also Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
We are faced here with the limited question of whether or not the Juvenile Court may conduct a hearing and sever the parental rights of a parent to a child without there first being a pending adoption. Before we consider this matter we must consider the meaning of the term 'parental rights'. The rights of a parent regarding its child are quite often confused with parental obligations or the rights of the child to care, custody, support, inheritance and other obligations from the parent to the child. Our statute A.R.S. § 14--206, for example, provides that every child is entitled to support and education from its natural parents. As used herein we construe the term 'parental rights' in the broader term as the sum total of the rights of the parent or parents in and to the child as well as the rights of the child in and to the parent or parents. In other words, we construe parental rights to include both parental rights and parental obligations.
The relation of parent and child is not a property right but a status which, nevertheless, may not be changed by the state without due process and compliance with the statutes involved. It has been stated:
'While the right of the natural parents to the custody of their children is not a proprietary right in the same sense as if the child were a chattel, it has ever been regarded, even in primitive civilization, as one of the highest of natural rights * * *.' 2 C.J.S. Adoption of Children § 21, pages 383, 384.
The welfare of the child is paramount in all cases involving children:
'Thus it is, we think, with respect to the termination of parental rights as well as with respect to the entry of an order of adoption and an order of custody, that the prime and overriding consideration is always what best serves the interest of the child.' Cline v. Hartzler, Del., 227 A.2d 210, 212 (1967).
Even so, the court must have jurisdiction to grant the relief before it may enter an order terminating a relationship as vital as parental rights between parent and child.
The courts have generally treated adoption, parental rights and custody matters differently and then only where it is clear that the jurisdiction lies to interfere with that particular relationship. Adoption, which generally severs all rights and corresponding obligations between the parent and the child, was unknown at common law and exists as a creature of statute which must be strictly construed. In re Webb's Adoption, 65 Ariz. 176, 177 P.2d 222 (1947). The only mention in our statutes of the termination of parental rights is contained in the code section on adoption. A.R.S. § 8--103 states:
'Consent to Adoption; * * *
'A. Before the court may enter an order for the adoption of a minor, the provisions of this section which are applicable to the proceedings shall be observed:
'1. Consent to the adoption shall be obtained from the individuals or agencies found capable of giving consent under the following circumstances: * * * (c) A guardian of the child appointed in a separate proceeding, with authority to consent to adoption, if neither parent is living, or both parents have been legally declared insane or incompetent, or the Parental rights of both parents have been divested as provided by law. * * *
(d) The parent whose rights have not been divested or relinquished, if the Parental rights of one of the parents have been divested or relinquished in a lawful manner.' A.R.S. § 8--103. (emphasis ours)
Our statute also states:
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