Appeal in Pima County Juvenile Severance Action No. S-114487, Matter of
| Decision Date | 23 June 1994 |
| Docket Number | No. S-114487,CV-94-0259-T,R,S-114487,Nos. CV-93-0305-PR,P,s. CV-93-0305-PR |
| Citation | 876 P.2d 1121,179 Ariz. 86 |
| Parties | In the Matter of the APPEAL IN PIMA COUNTY JUVENILE SEVERANCE ACTION NO.The FATHER IN PIMA COUNTY JUVENILE ACTION NO.etitioner, v. Honorable Karen ADAM, Judge Pro Tem, Pima County Superior Court, State of Arizona, Respondent, and Robert FINN, Petitioner in Action; The Minor Child in Pima County Juvenile Action; The Mother in Pima County Juvenile Action, Real Parties in Interest, Prospective Adoptive Parents, Intervenors. /SA,/AP. |
| Court | Arizona Supreme Court |
This case presents fundamental issues concerning grounds for severance of parental rights. The case comes to us on a petition for review filed by a guardian ad litem on behalf of a young child. The guardian argues that the trial judge erred in refusing to terminate the parental rights of the child's biological father. The guardian claims this unwed father abandoned the child and that his parental rights should therefore have been severed so that the child could be adopted. Because the issues have immediate, statewide importance, we granted review.
The child 1 is the daughter of young, unwed parents whose relationship began in 1989. The mother, the father, and their respective families live in Texas. Upon learning that their daughter was pregnant, the mother's parents sent her to stay with an aunt in Tucson. The mother came to Tucson in August 1991 and gave birth to the child on October 24, 1991, when she was only seventeen.
Before the child's birth, the mother suggested adoption, but the father opposed the idea. Nevertheless, the mother's parents pressured her to place the baby for adoption in Tucson. After delivery, the mother did so without the father's knowledge. The mother remained in Tucson for only one week, and the father did not learn of the baby's placement until the baby was already in another home. The child was placed and still lives with a couple hoping to adopt her. The adoption was never completed because of the pendency of these termination proceedings. Nevertheless, we refer to the couple as adoptive parents.
The procedural history of this case has exacerbated the present dilemma because the case comes to final resolution over two years after legal proceedings were first initiated and almost three years after the child began living and bonding with her adoptive parents. The case before us is a severance proceeding, not an adoption or custody matter. This child may be eligible for adoption only if both natural parents either voluntarily relinquish their rights, have those rights severed, or are found incompetent by a court. See A.R.S. § 8-106(A)(1). 2 In this case, only the mother voluntarily relinquished her rights.
Although the father did not give up his parental rights, the child entered the adoptive parents' home a few days after birth when the mother gave them physical custody. Approximately six months later, the attorney for the adoptive parents, 3 alleging he stood in loco parentis to the child, filed a petition in juvenile court to terminate the father's parental rights. The only asserted statutory basis for termination was the father's abandonment of the child. See A.R.S. § 8-533(A).
The father received notice of the severance petition and responded by writing a letter to the court saying he did not wish to give up his child and hoped to raise her. The court then appointed an attorney for him and a guardian ad litem for the child. Thus, the interests of both father and child were represented at the severance hearing.
After testimony from the natural father, the paternal grandmother, and the adoptive mother, the trial court concluded that the evidence did not clearly and convincingly establish that the father intended to abandon his child. 4 Accordingly, the court held that no grounds for termination existed and refused to sever the father's parental rights. Order, Jan. 5, 1993 (hereinafter "First Order"). This, of course, made the child unavailable for adoption. See A.R.S. § 8-106(A)(1)(b).
The child appealed through her guardian ad litem, arguing that the trial court applied an improper standard for abandonment by failing to consider the child's needs and rights. The court of appeals affirmed the trial court's decision. In re Appeal in Pima County Juvenile Severance Action No. S-114487, 144 Ariz.Adv.Rep. 48, 1993 WL 276801 (Ct.App.1993). The court of appeals held that the statutory definition of abandonment found in § 8-546 did not apply and that the settled purpose test is instead the proper standard to apply in all abandonment cases. Id.
The child's guardian ad litem then petitioned this court for review. See Ariz.R.Civ.App.P. 23. We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
We granted review, believing that the trial court and court of appeals might have applied the wrong standard of abandonment. After briefing and oral argument, we concluded that this, in fact, had occurred. Thus, we suspended the appeal and remanded the case to the trial court with an order that stated in relevant part:
[T]he [trial] judge adopted and applied the so-called "settled purpose" standard rather than the standard contained in A.R.S. § 8-546.
* * * * * *
This Court concludes, however, that the trial court and the Court of Appeals erred in not adopting and applying the definition of "abandoned" contained in A.R.S. § 8-546(A)(1).... This statutory standard measures abandonment much more by the parent's conduct than by subjective intent....
It appears, therefore, that the facts ... were weighed by the judge under an improper legal standard and that, in finding there had been no abandonment, the trial court may have applied too stringent a test.
* * * * * *
IT IS ORDERED ... as follows:
1. The court is to schedule and reconvene an evidentiary hearing....
2. In considering the question of abandonment, the court may also consider whether the "needs of the child" were fulfilled. See A.R.S. § 8-533(B).
3. The trial court shall then make its findings on the basis of all of the evidence received by the court in the entire proceeding
....
Order, Feb. 4, 1994 (hereinafter Feb. 4 Order). 5
As required, the trial judge reconsidered the facts, offered the parties an opportunity to present further evidence, and heard argument. After doing so, and applying the correct definition of abandonment, the judge found that the father's conduct constituted statutory abandonment. Order, Feb. 24, 1994 (hereinafter "Second Order").
As our remand order permitted, the parties then filed their objections and comments to the Second Order, together with supporting briefs. In essence, the father argues that the settled purpose standard is proper, and that even under the standard we instructed the trial court to apply on remand, the evidence does not clearly and convincingly establish abandonment. Therefore, the father claims he has been wrongfully denied the fundamental right to raise his child. Father's Objections and Comments to Findings of the Trial Court at 13 (Mar. 9, 1994) (hereinafter "Objections"). The father also argues that his due process rights have been violated because he was not appointed counsel until after the six-month statutory period of abandonment had passed. See A.R.S. § 8-546(A). The minor's guardian urges this court to affirm the Second Order.
The father also filed an original special action proceeding, 6 alleging, inter alia, that the Second Order should be vacated because the trial court exceeded its jurisdiction. The father claims that we did not authorize the trial judge to vacate the First Order and enter a new one, and he also argues that the trial judge abused her discretion in admitting transcripts of the dependency proceeding at the second hearing. 7
Finally, the father filed an appeal from the Second Order, arguing that the trial judge acted arbitrarily and capriciously. The court of appeals, correctly believing that jurisdiction of this case is vested with the Supreme Court, transferred the appeal to us. The special action petition and the appeal raise no issue not already presented by the objections. We therefore accepted jurisdiction of the special action and the appeal and consolidated them for decision with the pending proceedings.
Within this complex procedural framework, we now turn to the questions raised by the parties. Given the present procedural posture, we treat the father as the petitioner and his objections to the Second Order as issues raised on appeal.
We begin with the father's procedural objections to the Second Order. First, the father argues that the trial judge should not have considered any new evidence at the second hearing and that she committed reversible error in admitting excerpts of testimony taken at the dependency hearing. We disagree. Our order to the trial judge instructed her to "reconvene an evidentiary hearing at which the court will take...
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