Frank R. v. Adoptions
| Citation | 402 P.3d 996 |
| Decision Date | 02 October 2017 |
| Docket Number | No. CV-16-0051-PR.,CV-16-0051-PR. |
| Parties | FRANK R., Appellant, v. MOTHER GOOSE ADOPTIONS, Appellee. |
| Court | Supreme Court of Arizona |
Sarah Michèle Martin (argued), Tucson, Attorney for Frank R.
John J. Egbert (argued), Kerry A. Hodges, Jennings, Strouss & Salmon, P.L.C., Phoenix, Attorneys for Mother Goose Adoptions
Patrick Lacroix, Arizona Children's Law, LLC, Tucson, Attorneys for Amicus Curiae David and Carolyn Price
¶ 1 Frank R.'s parental rights were terminated because he did not register with the Arizona putative fathers registry as required by A.R.S. § 8–106.01. Failure to register is a statutory ground for severance, and we hold that putative fathers must comply with § 8–106.01 to avoid severance pursuant to A.R.S. § 8–533(B)(6). Because Frank did not register, although he had both opportunity and time to do so, the juvenile court did not err when it severed his parental rights.
¶ 2 In the summer of 2013, Rachel (18) and Frank (21), both California residents, developed an intimate relationship, and in early August learned that Rachel was pregnant. Several weeks later their relationship unraveled, and the couple separated. After their separation and during the early pregnancy, Frank did not provide Rachel with financial or emotional support.
¶ 3 In December 2013, Rachel called the Adoption Network Law Center ("ANLC") to place the expected baby for adoption and gave an advisor Frank's name and home phone number as the likely father. She did not identify any other likely father. In February 2014, Frank told Wendy McGreevy, an attorney at ANLC, "If the baby turns out to be mine, I will 100 percent take the baby and raise it." ANLC subsequently declined to accept the baby for adoption, recognizing that the adoption would likely be contested.
¶ 4 In March 2014, unbeknownst to Frank, Rachel called Mother Goose Adoptions in Arizona seeking to place her unborn child for adoption. Rachel told Mother Goose she had no idea who the child's father was and did not tell Mother Goose about her rejected application with ANLC (leaving an application question blank). Rachel later signed an affidavit falsely stating no man had acknowledged or claimed paternity of the child or had provided or promised to provide her support during the pregnancy, and there was no person she had reason to believe had an interest in the child.
¶ 5 On May 5, Rachel gave birth to E.E. in Maricopa County, with the adoptive mother in attendance. Three days later, Rachel executed a Relinquishment of Parental Rights for Adoption, relinquishing her rights to Mother Goose. The next day, Frank asked Rachel about the baby through Facebook, and Rachel responded that the baby was not his. Frank continued to ask about the baby and wrote, "if [it's] mine, [I'm] going to support the baby." Mother Goose filed a petition for termination of the parent-child relationship and appointment of a guardian for the child on May 14 in Pima County Superior Court.
¶ 6 In that severance petition, Mother Goose alleged that Rachel resided in Arizona at the hotel it had arranged for her while she was in Phoenix. Further alleging that the identity of the child's father was unknown, Mother Goose sought to terminate Rachel's rights pursuant to A.R.S. § 8–533(B)(7) and the rights of any potential father pursuant to A.R.S. § 8–533(B)(5), claiming that no putative father had timely served Rachel with a paternity action after service of notice pursuant to A.R.S. § 8–106(G). That notice, which is required in an adoption under A.R.S. § 8–106, was served by publication in Maricopa County, with the last notice appearing in May 2014. The published notices listed Rachel's address as her Phoenix hotel, instead of her permanent California address, and purported to serve only "John Doe" with no other identifying information.
¶ 7 On July 30, 2014, the juvenile court terminated the parental rights of "John Doe" and Rachel and relinquished jurisdiction to Tennessee, the adoptive parents' home state, pursuant to A.R.S. § 25–1032(A)(2).
¶ 8 Meanwhile, Frank had seen a photograph of E.E. on Facebook and believed the child looked like him. In early July, he filed a petition to establish parental rights in California. Rachel was served with the California petition on July 30, coincidently the same day the juvenile court here terminated the parental rights of "John Doe."
¶ 9 Rachel advised Mother Goose of the California petition and Mother Goose requested that the Arizona juvenile court reassert jurisdiction. In late August, the court granted Mother Goose's request along with its motion to file an amended petition to terminate Frank's parental rights. Alleging that Frank had failed to file a notice of claim of paternity within thirty days of E.E.'s birth, Mother Goose sought to terminate Frank's parental rights under A.R.S. § 8–533(B)(6). Mother Goose did not advise the court that Frank had filed a petition in California to establish paternity.
¶ 10 Frank appeared for a hearing on the California petition on August 28. Rachel appeared by counsel and moved to quash the California action and to place E.E. in a guardianship pending adoption, stating that an earlier action was pending in Arizona to terminate parental rights. Frank learned at that hearing for the first time that E.E. was born in Arizona, that Arizona was E.E.'s home state under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), that Mother Goose had filed a petition to terminate his parental rights in Arizona, and that the baby had been placed with prospective adoptive parents in Tennessee.
¶ 11 Frank traveled to Arizona and filed a pro se response to Mother Goose's first-amended petition and attended a hearing on October 8. The juvenile court appointed counsel for Frank at that hearing and, at Frank's request, ordered a paternity test, which established him as E.E.'s father. The Arizona court asserted jurisdiction after conferring with the California court, pursuant to the UCCJEA, and conducted the initial severance hearing in December.
¶ 12 On February 6, 2015, Mother Goose filed a second-amended petition, which alleged abandonment as an additional ground for terminating Frank's rights. The petition also contained two significant factual misstatements. First, Mother Goose incorrectly alleged that at the time of the initial filing Rachel did not know of a person claiming rights to legal custody, physical custody, or visitation with E.E. when, in fact, Rachel knew Frank was making such claims. Second, Mother Goose falsely stated that the birth father was unknown and that Frank "may" be the father when, in fact, biological paternity had been confirmed by DNA testing in October.
¶ 13 Frank was present each day of the severance adjudication hearing, which took place over six days from February until April 2015. Following the hearing, the juvenile court severed Frank's parental rights, after finding his failure to register with the putative fathers registry as the sole statutory ground and further finding that severance was in E.E.'s best interests.
¶ 14 The court found that the requirement of timely registration with the putative fathers registry applied, and that Frank had not registered despite having had the ability to do so "notwithstanding [Rachel's] fraudulent practices." The court also found that Mother Goose failed to establish abandonment and that Rachel's conduct was deceitful and designed to prevent Frank from asserting his parental rights.
¶ 15 The court of appeals affirmed in a split decision. Frank R. v. Mother Goose Adoptions , 239 Ariz. 184, 203 ¶ 65, 367 P.3d 88, 107 (App. 2016). It reviewed de novo the juvenile court's interpretation and application of A.R.S. § 8–533(B)(6), concluding that the juvenile court had correctly applied the statute. Id. at 190 ¶ 22, 203 ¶ 65, 367 P.3d at 94. The court of appeals reasoned that the primary deception had already occurred by the time the thirty-day period commenced and, like the juvenile court, noted that Frank had the ability to register notwithstanding Rachel's fraudulent conduct and, on his lawyer's advice, chose not to do so. Id. at 199 ¶ 48, 367 P.3d at 103. The dissenting judge asserted that, "under all the circumstances of this case, Frank's failure to file a superfluous notice of paternity pursuant to § 8–106.01 should not constitute grounds for terminating his parental rights." Id. at 205 ¶ 73, 367 P.3d at 109 (Eckerstrom, C.J., dissenting).
¶ 16 We granted review to determine whether compliance with A.R.S. § 8–106.01 may be excused, allowing the father to avoid severance under A.R.S. § 8–533(B)(6). We exercise jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.
¶ 17 We review the juvenile court's order terminating Frank's parental rights for an abuse of discretion. Demetrius L. v. Joshlynn F. , 239 Ariz. 1, 3 ¶ 9, 365 P.3d 353, 355 (2016) ; In re Pima Cty. Juvenile Severance Action No. S -1 14487 , 179 Ariz. 86, 100–01, 876 P.2d 1121, 1135-36 (1994). Questions of law and statutory interpretation are reviewed de novo. David C. v. Alexis S. , 240 Ariz. 53, 55 ¶ 8, 375 P.3d 945, 947 (2016).
¶ 18 The Arizona putative fathers registry was established in 1994. See H.B. 2462, 1994 Leg., 2d Reg. Sess. (Ariz. 1994). Codified as A.R.S. § 8–106.01, subsection A states in pertinent part:
A person who is seeking paternity, who wants to receive notice of adoption proceedings and who is the father or claims to be the father of a child shall file notice of a claim of paternity and of his willingness and intent to support the child to the best of his ability with the state registrar of vital statistics in the department of health services.
Under § 8–106.01(B), "[t]...
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