J.D.S. v. Superior Court In and For County of Maricopa

• Decision Date: 05 May 1994
• Docket Number: No. 1,CA-SA,1
• Citation: 893 P.2d 749,182 Ariz. 98
• Parties: J.D.S. and J.L.S., his minor child, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Pamela J. Franks, a judge thereof, Respondent Judge, G.H. and K.H., Real Parties in Interest. 94-0054.
• Court: Arizona Court of Appeals

Page 749

893 P.2d 749

182 Ariz. 98

J.D.S. and J.L.S., his minor child, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Pamela J. Franks, a judge thereof, Respondent Judge G.H. and K.H., Real Parties in Interest.

No. 1 CA-SA 94-0054.

Court of Appeals of Arizona Division 1, Department B.

May 5, 1994.

As Corrected June 22, 1994.

[182 Ariz. 100] David L. Rose P.C. by David L. Rose, Phoenix, for petitioner.

Jennings, Strouss & Salmon, P.L.C. by Rita A. Meiser, James M. Ackerman, Robert D. Haws, Phoenix, for real parties in interest.

Ann M. Haralambie P.C. by Ann M. Haralambie, Tucson, for amicus curiae Arizona Council of Attys. for Children.

Charles G. Ollinger, III, Paradise Valley, for amicus curiae Family & Friends in Support of Divorce Reform, Inc.

OPINION

WEISBERG, Presiding Judge.

J.D.S. ("the father") petitions for relief from the trial court's ruling that Arizona lacked jurisdiction over custody proceedings and its order quashing his Writ of Habeas Corpus. We accept jurisdiction and grant relief.

FACTS AND PROCEDURAL HISTORY

Petitioner is the unwed father of a child born on August 8, 1993. Although never married, the biological parents had previously lived together. Prior to the baby's birth, the biological mother ("the mother") contemplated placing the child for adoption. At that time, the father indicated that he would never sign any papers or authorizations to give up the child for adoption. Although the mother contacted a local attorney and later an adoption agency regarding placing her child for adoption, both refused to assist her because of the father's refusal to consent. Finally, the mother located attorney Kerry Moore ("Moore") who was willing to arrange for an out-of-state adoption of the child without the father's consent. Arrangements were made to place the child in Florida with the Real Parties in Interest, K.H. and G.H. During the mother's pregnancy, Moore, on behalf of K.H. and G.H., gave money to her for living expenses.

Immediately after the baby's birth, the mother changed her mind about the adoption. The father visited the child in the hospital, and his name was listed on the birth certificate. The mother has provided contradictory affidavits regarding the father's relationship with the child. In her first affidavit in support of placing the child for adoption, the mother alleged that the father provided only sporadic support for the child. In her second affidavit, the mother alleged that her first affidavit was coerced. She further alleged, as did the father in his affidavit, that he visited with the child regularly, performed numerous parental duties, such as changing her diapers, feeding, bathing and clothing her, and that he had provided financial support during her pregnancy and after the child's birth.

During the two to three months following the child's birth, the mother met with Moore or her paralegal several times and finally agreed to give the child up. On November 22, 1993, without the father's knowledge, the mother signed a relinquishment of her parental rights and other adoption papers allowing the child to be adopted by K.H. and G.H. in Florida. On the same day, an application was made to have the child released to K.H. and G.H. under the Interstate Child Placement Compact ("Compact"). ¹ The application indicated that both parents' rights had been terminated, and failed to supply any information regarding the father. The mother then gave the child to Moore. Later that day, however, the mother began to have regrets and sought the return of the child from Moore. Moore refused and told her that her consent was irrevocable.

On the next day, the father came to the mother's apartment to visit the child. The mother told him that on the previous day Child Protective Services had taken custody of the child. The father then contacted Child Protective Services, but could not get any information regarding the child. The Compact administrator approved the placement of the child with K.H. and G.H. on November 23, 1993, without any attempt either to contact the father or to investigate the alleged termination of his parental rights.

At the mother's insistence, Moore arranged for her to meet with K.H. and the child on November 24, 1993. At that meeting, the mother pleaded for the return of the child, but K.H. refused and returned to Florida with the child. Adoption proceedings regarding the child were then instituted by K.H. and G.H. in Alachua County, Florida.

On December 3, 1993, the mother told the father that her story about Child Protective Services taking the child was not true, and that she had given the child up for adoption through Moore. The father immediately contacted Moore and demanded the return of the child. Moore refused. The father then retained counsel and obtained a Writ of Habeas Corpus. K.H. and G.H. challenged jurisdiction and moved to quash the Writ.

The trial court held that the Uniform Child Custody Jurisdiction Act ² ("UCCJA") did not apply to these proceedings, that the provisions of the Compact had been met, and that the Compact superseded the UCCJA. The trial court concluded that Arizona does not have jurisdiction and that Florida should retain jurisdiction for all relevant proceedings.

This petition for special action followed. In our order dated March 22, 1993, we accepted jurisdiction and granted relief, indicating that a written decision would follow. This is that decision.

SPECIAL ACTION JURISDICTION

We accept jurisdiction because we believe that this issue is one of statewide importance see Duquette v. Superior Ct., 161 Ariz. 269, 271, 778 P.2d 634, 636 (App.1989), and that the father has no plain, speedy, or adequate remedy on appeal because of the special nature of custody proceedings, where delay may result in both significant deprivation of parental rights and detriment to the child. See Caruso v. Superior Ct., 100 Ariz. 167, 170, 412 P.2d 463, 465 (1966); Silver v. Rose, 135 Ariz. 339, 343, 661 P.2d 189, 193 (App.1982).

STANDARD OF REVIEW

The trial court based its decision solely on documentary evidence consisting of application forms and affidavits. When the trial court resolves fact issues based solely on documentary evidence, review is de novo, and this court may make its own analysis of such evidence. Broemmer v. Abortion Servs., Ltd., 173 Ariz. 148, 150, 840 P.2d 1013, 1015 (1992); Purvis & Tanner v. Hartford, 179 Ariz. 254, 877 P.2d 827 (App. 1994).

DISCUSSION

Due Process Considerations

A parent's right to the custody and control of one's child is a fundamental interest guaranteed by the United States and Arizona Constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). Also, the right to due process extends to an unwed father's relationship with his illegitimate child. See Stanley, 405 U.S. at 657, 92 S.Ct. at 1215-16; Caban v. Mohammed, 441 U.S. 380, 394, 99 S.Ct. 1760, 1769, 60 L.Ed.2d 297 (1979); Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614 (1983).

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he "act[s] as a father toward his children."

Lehr, 463 U.S. at 261, 103 S.Ct. at 2993 (citations omitted).

The existence of a meaningful parent-child relationship is crucial in determining the extent to which a natural father's relationship with his illegitimate child deserves protection under the Due Process Clause. The facts submitted in this case indicate that the father had an ongoing relationship with his child, that he assisted in the care of his child, and that he provided the child with financial support. Under these circumstances, due process considerations require that the father's rights be honored, until otherwise lawfully abridged, before his child may be removed to another state for adoption proceedings.

Arizona protects parental rights by requiring that consent be obtained from both birth parents prior to an adoption unless a birth parent has been declared incompetent, his or her parental rights have been judicially terminated, or the parent has previously consented to the adoption. See A.R.S. § 8-106. Before parental rights can be terminated, it must be determined that the child was either abandoned, neglected or wilfully abused by the parent, or that the parent suffers from mental illness, has been found to be an unfit parent, or has voluntarily relinquished his or her right to the child. A.R.S. § 8-533.

If a mother voluntarily relinquishes her parental rights, as happened in this case, the law presumes that the natural father is entitled to custody. Caruso, 100 Ariz. at 173, 412 P.2d at 467. Also, a custody decree is not necessary for a natural parent of a child to be entitled to custody of that child, absent an order to the contrary. State v. Grooms, 145 Ariz. 439, 440, 702 P.2d 260, 261 (App.1985).

In the instant case, the father has never relinquished his parental rights, has never been declared incompetent, and has never had his parental rights terminated. When the mother voluntarily relinquished her parental rights, he became entitled to custody of the child, absent a judicial determination to the contrary. Yet, he received no notice before his child was taken to Florida for adoption proceedings. Clearly, his right to due process was violated.

Jurisdiction

K.H. and G.H. argue that Florida has jurisdiction over all proceedings involving this child because placement of the child was valid, having been approved by the Compact administrators of both Arizona and Florida. They argue that, under the Compact, once the transfer has...