Appeal in Pima County, Juvenile Action No. S-139, Matter of

• Decision Date: 17 September 1976
• Docket Number: CA-CIV,No. 2,S--139,2
• Citation: 555 P.2d 892,27 Ariz.App. 424
• Parties: In the Matter of the Appeal IN PIMA COUNTY, JUVENILE ACTION NO.2198.
• Court: Arizona Court of Appeals

Page 892

555 P.2d 892

27 Ariz.App. 424

In the Matter of the Appeal IN PIMA COUNTY, JUVENILE ACTION NO. S--139.

No. 2 CA-CIV 2198.

Court of Appeals of Arizona, Division 2.

Sept. 17, 1976.

Petition for Review Denied Oct. 26, 1976.

George Haskel Curtis, Tucson, for appellant.

Virginia C. Howard, Tucson, for appellee Minor.

Chandler, Tullar, Udall & Richmond by Joseph R. McDonald, Tucson, for intervenors.

KRUCKER, Judge.

A juvenile court order which decreed that appellant was not the father of a one-year-old male child and, in the alternative, that the parental relationship be severed, is the subject of this appeal.

Extensive findings of fact and conclusions of law were entered. The court found, inter alia, that the child was born on December 21, 1974, at which time the mother was unmarried; that on January 7, 1975, the mother voluntarily and unconditionally consented to the child's adoption placement by the Catholic Social Services of Tucson and executed a waiver of notice and appearance to any and all proceedings in connection with severance and adoption; that appellant and the mother, although unmarried, began living together in July, 1974, and continued to live together until after the birth of the child; that the child was conceived in March or April of 1974, at which time appellant and the mother were living separate and apart, seeing each other on Monday nights and Tuesdays of each week with each being free to go out with others during the balance of the week; that the mother had informed the social worker, when placing the child for adoption, that she was unable to say who the father of her child was and that it could be one of two men; that on January 7, 1975, the mother swore under oath that she could not name and did not know who the father of her child was; that while living with the mother during her pregnancy appellant noticed that she looked heavier than normal and asked her if she was pregnant; and that appellant took the mother to the hospital on the day of the child's birth and later visited her in her hospital room which was on the maternity floor.

The court also found that in January, 1975, appellant found a copy of the child's birth certificate among the mother's papers; that he did not contact the Catholic Social Services until April 25 and thereafter met with the social worker on two occasions, the second of which being May 13 accompanied by the mother; appellant contacted an attorney but took no action until served with an order to show cause on July 8, 1975, and with a subsequent order to appear for a hearing on September 8, 1975.

Additionally, the court found that appellant took no steps to contest the severance and made no efforts to ascertain the whereabouts of the child or offer support; that he had made no arrangements for the care and support of the child; that he had stated that he and the mother were going to get married but as of the date of the hearing they had not done so; that appellant had not responded to the efforts of the child welfare worker to contact him and as a consequence, no home study had been made; that appellant's periods of employment had been infrequent and sporadic and although he knew of the child's birth in January, 1975, his next employment was not until March 7, 1975, which terminated in May, 1975; and that he did not again become employed until after the September 8 hearing.

Finally, the court found that appellant, when not employed, had been supported by others, had lived with the child's mother during periods when he was unemployed at least since July, 1974, had mae no effort to maintain a parental relationship with the child after he reasonably should have known that the child had been conceived, that the child had been left without any provision by appellant for the child's support since the child's conception and thus he had abandoned the child, and that appellant had made no effort to support the child.

The court concluded that appellant had not met the burden of showing that he was the natural father of the child and that, in the alternative, had abandoned the child.

Appellant urges several grounds for reversal, some directed to the paternity issue and others directed to the severance issue. Since we agree with the court's finding that grounds for termination existed, we need not address ourselves to the errors claimed relative to the paternity issue.

Appellant contends it was error to allow into evidence a home study report made by a California agency for the reason that he had no opportunity to cross-examine the author of the report, that the court erred in permitting an oral social study report based on in-court observation of appellant, and that the court erroneously allowed appellant's fitness to care for the child to be raised.

A.R.S. § 8--536 provides:

'A. Upon the filing of a petition the court shall order that the division, an agency or another person selected by the court conduct or cause to be conducted a complete social study and that a report in writing of such study be submitted to the court prior to hearing, except that when an agency is the petitioner, either in its own right or on behalf of a parent, a report in writing of the social study made by such agency shall accompany the petition. The court may order any additional social study it deems necessary. The social study shall include the circumstances of the petition, the social history, the present condition of the child and parent, proposed plans for the child, and such other facts as may be pertinent to the parent-child...