Appeal in Maricopa County, Juvenile Action No. JS-8490, Matter of
| Decision Date | 30 June 1994 |
| Docket Number | No. CV-93-0385-PR,JS-8490,CV-93-0385-PR |
| Citation | 179 Ariz. 102,876 P.2d 1137 |
| Parties | In the Matter of the APPEAL IN MARICOPA COUNTY, JUVENILE ACTION NO. |
| Court | Arizona Supreme Court |
The issue in this case is whether the trial court erred in severing the parental rights of an unwed father. The father had no contact with his daughter until almost four years after her birth, when he responded to the petition by the Arizona Department of Economic Security (DES) to terminate his rights based on abandonment.
The trial court found that the father had abandoned his daughter and terminated his parental rights. The father appealed, arguing that the trial court abused its discretion because there was no clear and convincing evidence that he intended to abandon his child. The court of appeals agreed and reversed the trial court's decision. In re Appeal in Maricopa County Juvenile Action No. JS-8490, No. 1 CA-JV 91-0061 (Ariz.Ct.App. Aug. 31, 1993) (memorandum decision). DES filed a petition for review. We granted review because the case presented novel issues together with some issues affected by our recent opinion in In re Appeal in Pima County Juvenile Severance Action No. S-114487, 179 Ariz. 86, 876 P.2d 1121 (Ariz.Sup.Ct.1994). We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
JoEmma and Ray cohabitated for six months beginning in 1985 or 1986. They shared an apartment with, among others, two brothers, Roberto and Juan. Unknown to Ray, JoEmma also was having sexual relations with Roberto. When Ray learned of this, he ordered JoEmma and Roberto to move out. At that time, JoEmma was carrying Ray's child, although Ray claims he was unaware of the pregnancy. A short time after JoEmma gave birth to a daughter in February 1987, she and Roberto moved to Florida, where JoEmma had another child, this time by Roberto. When Ray spoke to his former roommate Juan in 1987, Juan told him that JoEmma had given birth to Maria, and that Maria looked a lot like Ray.
JoEmma returned to Phoenix with her two children but was unable to adequately care for them. After numerous referrals to Child Protective Services, the children were placed in DES custody. DES began dependency proceedings 1 in June 1988, naming Ray as Maria's father. JoEmma confirmed this but gave DES no information on Ray's whereabouts. DES could not locate Ray, and in September 1989 filed a petition to terminate Ray's parental rights on the ground of abandonment. See A.R.S. § 8-533(B)(1). 2 After a hearing in November 1989, the court granted the petition.
About a month before the court terminated Ray's parental rights, in October 1989, Ray fortuitously encountered JoEmma at a bus stop in downtown Phoenix, where he asked JoEmma if he was Maria's father. JoEmma admitted he was, and although she knew Maria was in foster care in Phoenix, she told Ray that Maria was in Oregon with her grandmother. She did not tell Ray that a termination petition was pending, and Ray did not ask JoEmma how he could contact her or his daughter, now two and one-half years old. That was the last time Ray saw JoEmma.
Almost a year later, Ray unexpectedly encountered Roberto at a grocery store. Roberto told Ray that JoEmma had placed both daughters for adoption in Phoenix. In September 1990, eleven months after JoEmma told Ray about his daughter, Ray discussed this situation with a cousin who was a DES foster parent. The cousin learned that Maria was in DES custody and that the foster parents with whom Maria had been placed were in the process of adopting her.
At the November 1990 adoption hearing, the court vacated the earlier termination order and reinstated the petition for termination of Ray's parental rights because the published notice of the termination hearing had erroneously listed Roberto rather than Ray as Maria's father. Ray sent a letter to the court saying that he wanted custody of Maria. The court found him indigent and appointed counsel for him. The court then reheard the termination claim by conducting a two-part hearing: first on abandonment and then on the best interest of the child. The trial court applied the abandonment definition from A.R.S. § 8-546 3 and again found that Ray had abandoned Maria. The court found that it would be in Maria's best interest to terminate the parental relationship so that the adoption could proceed.
Ray appealed from the termination order. The court of appeals held that to prove abandonment, DES must show "clear and convincing evidence of intentional conduct on the part of the parent which evinces a purpose to forego all parental duties and relinquish all parental claims...." Maricopa County Juvenile No. JS-8490, mem. dec. at 7 (emphasis in original). Using this definition, the court found that there was not clear and convincing evidence of intent to abandon because Ray did not have sufficient reason to believe that he had a child, and when he did discover that fact, he "expressed concern for the child." Id. at 12 () Accordingly, the court of appeals reversed the trial court's ruling, finding that the trial court abused its discretion when it found abandonment.
On review, DES argues that the court of appeals incorrectly found that the trial court abused its discretion in finding abandonment. DES also contends that the lower courts have inconsistently applied the settled purpose test 4 and asks us to decide the proper judicial standard in abandonment proceedings.
Ray presents two arguments. First, he claims that he could not have abandoned Maria because he did not know about her, and after discovering that he had a daughter, he had no way to find her. He also argues that after learning of Maria, he believed that JoEmma's family was adequately caring for her. As soon as he discovered that Maria was a ward of the state, he tried to find her. Ray claims that his rights may not be terminated unless there is evidence that he did not intend to reserve the right to reclaim Maria. He argues, and we assume, that this record shows no such intent.
Ray claims he exhibited no settled purpose to abandon Maria. However, as DES argues, the settled purpose test may not fit this case. In a recent case we examined the extent of an unwed father's constitutionally protected right to parent his child. We held that an unwed father with no existing parental relationship must act quickly and persistently after the child's birth to take whatever steps are reasonably possible to develop a parental relationship. Pima County Juvenile, at 96-97, 876 P.2d at 1131-1132 (citing Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)). It is only when the father steps forward and participates in the rearing of his child that "his interest in personal contact with his child acquires substantial protection under the Due Process Clause." Id. at 98-99, 876 P.2d at 1133-1134. This may mean shouldering significant parental duties or taking legal action, if necessary. Id. at 96, 876 P.2d at 1131.
We further held that it is the unwed father's responsibility to act, because actions speak louder than words. Id. Thus, the settled purpose test, which focuses on subjective intent rather than conduct, is incompatible with Pima County Juvenile 's requirement that the unwed father must act. Instead, the proper definition of abandonment is found in § 8-546.
The trial court applied the statutory definition of abandonment found in A.R.S. § 8-546 and held that:
[P]rior to 1989, the father had sufficient reason to believe he had fathered a child and that, having been put on notice that he had a child, his failure to do anything to locate her constitutes abandonment, even though he may not have known of the child's existence to an absolute certainty.
Findings of Fact and Conclusions of Law at 2 (emphasis added).
Ray claims that when he forced JoEmma to move out of their apartment, he did not know she was pregnant. However, Ray's cousin testified that Ray told her he knew about the child from the start. We view the facts in a light most favorable to affirming the trial court's findings. Federoff v. Pioneer Title & Trust, 166 Ariz. 383, 388, 803 P.2d 104, 109 (1990). But even taking Ray's testimony at face value, he nonetheless learned sometime in 1987 that JoEmma had given birth to a child. Ray admitted that he spoke to Juan two or three times while JoEmma was still in Florida and was told that JoEmma had given birth to a daughter and that "the daughter looks a lot like you." 5
Furthermore, Ray inarguably learned of Maria in October 1989, when he met JoEmma at the bus stop and she told him that the child was his. Moreover, he testified that when he spoke to her there, his first question was if the child was his. This suggests that he at least suspected before then that he was the father. Yet it was not until September 1990, when he talked to Roberto and learned that Maria was to be adopted--a full three and one-half years after her birth and almost one year after the bus stop conversation with JoEmma--that Ray took action by having his cousin telephone DES and inform a caseworker that Ray wanted custody of Maria. This was Ray's only action, other than driving around the vicinity of the bus stop. He did not contact JoEmma's friends or family, did not ask Roberto or Juan how to find her, and never searched for his daughter.
We believe that this evidence supports the trial court's finding that even if Ray did not know with certainty that the child was his, he...
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