J.D.S. v. Franks

Decision Date11 April 1995
Docket NumberNo. CV-94-0148-SA,CV-94-0148-SA
Citation893 P.2d 732,182 Ariz. 81
PartiesJ.D.S.; and J.L.S., a minor child, Petitioners, v. The Honorable Pamela J. FRANKS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, G.H. and K.H., Real Parties in Interest, Pamela G. Wiens, guardian ad litem for the minor child, Intervenor. /PR.
CourtArizona Supreme Court
OPINION

CORCORAN, Justice.

This case involves a tug-of-war between a natural father in Arizona and a couple in Florida seeking to adopt his minor child. It also involves the consideration of three overlapping statutes. We accepted jurisdiction of this special action to decide whether the trial court erred when it declined jurisdiction in this child custody dispute and deferred to the Florida trial court. Contrary to the court of appeals, we hold that the trial court decided this issue correctly insofar as it quashed the warrant for immediate production of the child and the writ of habeas corpus, and we vacate the opinion of the court of appeals.

We granted the petition for review and treat it as a special action because of the need for a quick resolution of this case. See J.A.R. v. Superior Court, 179 Ariz. 267, 273, 877 P.2d 1323, 1329 (App.1994) (accepting special action jurisdiction because "this case involves the custody placement of a young child, as well as a significant issue of law that may be decided as well now as in a later appeal that may involve unconscionable delay in resolving the child's placement"). Therefore, there is no equally plain, speedy, and adequate remedy by appeal. Rule 8(a), Arizona Rules of Procedure for Special Actions; see also Ariz. Const. art. 6, § 5(3).

Facts and Procedural History

On August 8, 1993, K.W. 1 (mother) gave birth to a baby girl in Phoenix, Arizona. K.W. was single and had one child from a former marriage. She was 23 years old at the time of the child's birth and was unemployed. K.W. had lived briefly with the child's biological father, J.D.S. (father), but at the time of the child's birth, they did not live together.

Before the birth of her child, the mother expressed interest in placing her child for adoption and contacted an adoption attorney, Kerry B. Moore, whose name she found in the yellow pages of the phone book. Upon the birth of her baby girl, however, she changed her mind and decided to keep the baby. After a few months of attempting to care for two children, she changed her mind once again and decided to place the child for adoption. K.W. had previously spoken with another adoption agency that refused to go forward with an adoption because of K.W.'s indecisiveness. K.W. contacted Ms. Moore again, and on November 22, 1993, K.W. consented to an adoption and signed the appropriate forms.

Through Ms. Moore, K.W. provided the requisite information to the Arizona and Florida administrators of the Interstate Compact for the Placement of Children (ICPC). She provided to the ICPC administrators J.D.S.'s name, address, and relationship to the child in an Affidavit as to Birth Father. On November 23, 1993, the Arizona administrator of the ICPC approved the placement of the baby with the prospective adoptive parents, G.H. and K.H. (adoptive parents). And on November 24, 1993, the Florida administrator of the ICPC approved the placement.

K.W. met K.H., who had travelled from Florida, and physically released the baby girl to K.H. K.H. transported the child to Florida on November 24, pursuant to approval from the ICPC administrators. A licensed Florida adoption agency, A Bond of Love Adoption Agency, Inc., had previously completed a homestudy of G.H. and K.H. and recommended approval of them as adoptive parents. On November 30, 1993, G.H. and K.H. initiated adoption proceedings in the Circuit Court of Florida.

The mother made several conflicting sworn statements regarding the pertinent facts of this case. In some statements, she said that J.D.S. was violent and did not support her during her pregnancy. She stated that he also failed to support the child, except for sporadic purchases of formula and diapers. In other statements, K.W. repudiated those statements about J.D.S. and said that he was a good father to the child.

Dr. Rosi D. Fortunato, a pediatrician, examined the baby soon after her arrival in Florida. He described her condition "as a classic medical picture of child neglect." The baby was underweight and had severe diaper rash. Dr. Fortunato reported that, under the care of G.H. and K.H., the child had "progressed very well" and gained weight.

This case arose because the biological father opposes the Florida adoption. The original birth certificate, prepared the day of the child's birth, does not identify the father and designates the mother's surname as the child's last name. On December 3, 1993, however, another birth certificate was issued listing J.D.S. as the father and designating his surname as the child's last name. 2 On December 7, 1993, J.D.S. filed for and received an Order of Paternity. 3 That same day he filed a petition for writ of habeas corpus in Maricopa County Superior Court in Arizona, and the trial court issued the writ directing that the child be returned. G.H. and K.H. specially appeared to contest jurisdiction in Arizona, and the trial court ordered the parties to submit briefs on the issue of jurisdiction.

The Arizona trial court held a hearing on January 14, 1994, with the Florida trial court, the adoptive parents, and the parents' Florida attorneys participating by telephone. The Arizona trial court found that the Uniform Child Custody Jurisdiction Act (UCCJA) was inapplicable to this case and was superseded by the ICPC. The Arizona trial court also found that the ICPC applied to this case because both Arizona and Florida had adopted the compact, and the procedures set forth in that compact were followed. The Arizona trial court concluded that it lacked in personam jurisdiction to issue or enforce a writ of habeas corpus with respect to the adoptive parents. Therefore, the Arizona trial court quashed the warrant for immediate production and writ of habeas corpus issued on December 7, 1993. Further, the trial court denied the petition for writ of habeas corpus.

Thereafter, J.D.S. filed a petition for special action in the Arizona Court of Appeals alleging that, under the ICPC, Arizona retained jurisdiction. The court of appeals accepted jurisdiction of the special action, vacated the trial court's order, and instructed the trial court "to take all necessary measures to secure the return of the child to the State of Arizona." J.D.S. v. Superior Court, 182 Ariz. 98, 107, 893 P.2d 749, 758 (App.1994).

Unlike the Arizona trial court, the court of appeals concluded that the UCCJA applies to this adoption case, and to child custody cases in general, and has not been superseded by the ICPC. The court of appeals held that "under the UCCJA only Arizona has jurisdiction to consider the instant child custody dispute." J.D.S., 182 Ariz. at 105, 893 P.2d at 756 (emphasis added). The court of appeals stated that Florida was not in substantial conformity with the UCCJA "because Arizona is both the child's home state and the state with the closest connection to the child." J.D.S., 182 Ariz. at 105, 893 P.2d at 756.

The court of appeals further stated that under the ICPC, Arizona retained jurisdiction over this matter because the ICPC states that the "sending agency shall retain jurisdiction over the child ... until the child is adopted." J.D.S., 182 Ariz. at 106, 893 P.2d at 757, quoting A.R.S. § 8-548, art. V(a). In addition, the court of appeals stated that "the provisions of the Compact were not complied with prior to the transfer of the child to Florida." In particular, the court of appeals noted that the sending agency did not provide all pertinent information in the ICPC forms, and the ICPC administrators approved the transfer of the child without notice to the father. J.D.S., 182 Ariz. at 106, 893 P.2d at 757. The court of appeals also held that the father's due process rights were violated because he received no notice before the child was placed in Florida. J.D.S., 182 Ariz. at 102-103, 893 P.2d at 753-754.

Judge Contreras dissented from the court of appeals' opinion. First, he stated that the Arizona court lacked the power to issue a writ of habeas corpus to secure the return of a child present in Florida. Second, he agreed with the majority that Arizona is the child's home state, but contended that the Arizona court could not collaterally attack Florida's jurisdiction because the issue of Florida's jurisdiction had not been fully and fairly litigated in Florida. J.D.S., 182 Ariz. at 108, 893 P.2d at 759 (Contreras, J., dissenting).

Not satisfied with the result in the court of appeals, the adoptive parents filed a motion for emergency stay in the Arizona Supreme Court. The Florida trial court had enjoined G.H. and K.H. from removing the child from Florida, and they so advised this court and the Arizona trial judge. G.H. and K.H. filed a petition...

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