J.W. v. Dep't of Child Safety

• Decision Date: 04 October 2021
• Docket Number: No. 2 CA-JV 2021-0027,2 CA-JV 2021-0027
• Citation: 54 Arizona Cases Digest 16,500 P.3d 337
• Parties: J.W., Appellant, v. DEPARTMENT OF CHILD SAFETY, Angelique G., and Matthew W., Appellees.
• Court: Arizona Court of Appeals

54 Arizona Cases Digest 16

500 P.3d 337

J.W., Appellant,

v.DEPARTMENT OF CHILD SAFETY, Angelique G., and Matthew W., Appellees.

No. 2 CA-JV 2021-0027

Court of Appeals of Arizona, Division 2.

Filed October 4, 2021

Pima County Office of Children's Counsel, Tucson, By Christopher Lloyd, Counsel for Appellant

Mark Brnovich, Arizona Attorney General, By Autumn Spritzer, Assistant Attorney General, Tucson, Counsel for Appellee Department of Child Safety

The Huff Law Firm PLLC, Tucson, By Daniel R. Huff, Counsel for Appellee Angelique G.

Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellee Matthew W.

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.

ECKERSTROM, Judge:

¶1 J.W.¹ appeals from the juvenile court's March 2021 order granting the Department of Child Safety's (DCS) motion to return him to his father, Matthew, filed pursuant to Rule 59, Ariz. R. P. Juv. Ct. He also appeals the dismissal of his special paternity petition.² For the reasons set forth below, we treat the appeal in the Rule 59 matter as a special action and accept jurisdiction but deny relief, and we affirm the dismissal in the special paternity action.

Factual and Procedural Background

¶2 In March 2019, DCS took custody of J.W., born in April 2016, due to reports of domestic violence between his parents, the parents’ issues with substance abuse, and because Matthew was incarcerated. J.W. was placed with his maternal grandmother, and DCS filed a dependency petition as to both parents. J.W. was adjudicated dependent as to the mother in April 2019. In May 2019, DNA testing revealed that Matthew, who is identified as the father on J.W.’s birth certificate, is not his biological father. DCS then filed a motion to dismiss Matthew as a party, but later withdrew that motion. J.W. was adjudicated dependent as to Matthew in August 2019.

¶3 Matthew made significant progress with his case plan and complied with the terms of his probation, and, in September 2020, DCS requested, pursuant to Rule 59, that J.W. be returned to Matthew's care. In November 2020, the mother filed a motion to dismiss Matthew as a party, which the juvenile court denied in January 2021.³ The day before the Rule 59 hearing began, J.W. filed a petition to establish paternity. In that petition, he alleged that "John Doe" is his father and requested that Matthew's name be redacted from his birth certificate. See A.R.S. §§ 12-621 (setting forth procedure to establish identity or fix birthright and parentage, or both), 25-803 (setting forth persons who may originate proceedings to establish paternity of child "and to compel support").

¶4 After the juvenile court consolidated the Rule 59 and special paternity matters, it noted that it appeared to lack subject matter jurisdiction over J.W.’s paternity petition. The court observed that the petition sought to disestablish Matthew as the statutorily presumptive father,⁴ rather than seeking to establish any individual's paternity. The court gave J.W. ten days from February 17, 2021, to file a memorandum explaining why the court had subject matter jurisdiction over the petition.⁵ However, on March 11, 2021, J.W. instead filed an amended petition to establish paternity, stating his biological father may be an individual named Juan Hermosillo, "whose whereabouts are currently unknown."⁶

¶5 Following a three-day contested hearing, which concluded in March 2021, the juvenile court issued a ten-page ruling. That ruling reaffirmed that Matthew is J.W.’s legal father, granted DCS's Rule 59 motion to allow J.W. to be placed with Matthew, and dismissed the special paternity action for lack of subject matter jurisdiction.⁷ This appeal followed.

Rule 59 Motion

¶6 J.W. challenges the juvenile court's granting of DCS's Rule 59 motion under A.R.S. § 8-861, asserting the court erred by returning him to a non-biological parent over his objection. He maintains the court essentially ignored the legal definition of "parent" by returning him to Matthew, who he incorrectly characterizes as a "non-parent." In a related argument, he asserts that this "kinship" placement violates A.R.S. § 8-514.02(B)(2) because Matthew's felony conviction rendered him ineligible for the fingerprint card required under that statute for kinship placements. He asks that he be removed immediately from Matthew's care. We note at the outset that J.W. has failed to sustain his burden to show whether the Rule 59 ruling is a final, appealable order, or to address the court's express finding that it is not.⁸ See Ariz. R. Civ. App. P. 13(a)(4) (opening brief shall include statement of appellate jurisdiction); Ariz. R. P. Juv. Ct. 106(A) (stating Rule 13, Ariz. R. Civ. App. P., applies to juvenile appeals).

¶7 Our jurisdiction in juvenile matters is set forth in A.R.S. § 8-235(A), which provides that "[a]ny aggrieved party in any juvenile court proceeding under this title may appeal from a final order of the juvenile court to the court of appeals." See also Ariz. R. P. Juv. Ct. 103(A). "Both factors must be present—the person must be an aggrieved party and the court's order must be final."⁹ Jewel C. v. Dep't of Child Safety , 244 Ariz. 347, ¶ 2, 418 P.3d 1120 (App. 2018). In Brionna J. v. Department of Child Safety , 247 Ariz. 346, ¶¶ 1, 7, 10, 448 P.3d 967 (App. 2019), this court found that the denial of a Rule 59 motion is not a final, appealable order under § 8-235(A), and can only be challenged by special action. As this court has acknowledged, however, there are inconsistencies in the case law establishing what constitutes an appealable order in juvenile cases. Jessicah C. v. Dep't of Child Safety , 248 Ariz. 203, ¶¶ 12-15, 459 P.3d 115 (App. 2020) ; see also Dep't of Child Safety v. Juan P. , 245 Ariz. 264, ¶¶ 6-7, 427 P.3d 785 (App. 2018) (addressing appeal from order granting Rule 59 motion without discussing jurisdiction).

¶8 Assuming for purposes of this opinion that the Rule 59 order is not an appealable order and that we thus lack jurisdiction, and despite J.W.’s fleeting and unsupported reference to special action relief, in our discretion we accept special action jurisdiction here. See Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass'n, Inc. , 229 Ariz. 525, ¶ 20, 278 P.3d 303 (App. 2012) (where appellate jurisdiction lacking, appellate court may assume special action jurisdiction in case brought as direct appeal); cf . Phillips v. Garcia , 237 Ariz. 407, ¶ 6, 351 P.3d 1105 (App. 2015) (appellate court may exercise special action jurisdiction even when parties have not requested such relief). We decide whether to exercise special action jurisdiction after considering whether there is "an equally plain, speedy, and adequate remedy by appeal," Rule 1(a), Ariz. R. P. Spec. Act., and if such review is necessary to address recurring legal questions of statewide importance. State ex rel. Romley v. Fields , 201 Ariz. 321, ¶ 4, 35 P.3d 82 (App. 2001) (special action review highly discretionary).

¶9 However, not only has J.W. failed to address this court's appellate jurisdiction in the Rule 59 matter, but he has failed to address the relevant portions of the ruling from which he is appealing, develop any meaningful arguments related to that ruling, or provide adequate and appropriate citations to the record. See Ariz. R. Civ. App. P. 13(a)(4) (opening brief shall include disposition in court from which appeal taken, statement of appellate jurisdiction, and appropriate references to portions of record upon which appellant relies); see also Ariz. R. P. Juv. Ct. 106(A).

¶10 J.W. has not meaningfully addressed the juvenile court's determination that Matthew is his legal father. That relationship does not require a biological connection. Rather, it is based upon a legal presumption that J.W. has neither challenged nor rebutted. See A.R.S. § 25-814(A)(3), (C) (presumption that man is father of child if birth certificate is signed by mother and father of child born out of wedlock may be rebutted by clear and convincing evidence); see also In re Marriage of Worcester , 192 Ariz. 24, ¶ 9, 960 P.2d 624 (1998) (parental rights are substantive rights created by statute and "proof of nonpaternity, by itself," is not ground justifying termination of father-child relationship); cf. Doherty v. Leon , 249 Ariz. 515, ¶ 11, 472 P.3d 531 (App. 2020) ("presumption of paternity under § 25-814(A)(1) ‘refers to a father's legal parental rights and responsibilities rather than biological paternity’ " (quoting McLaughlin v. Jones , 243 Ariz. 29, ¶ 11, 401 P.3d 492 (2017) )). Nor has J.W. challenged the court's factual conclusions supporting its ruling or addressed its finding that returning him to Matthew would not create a substantial risk of harm to him. See A.R.S. § 8-861 ; Ariz. R. P. Juv. Ct. 59.

¶11 Arguments that are unsupported by legal authority and adequate citation to the record are waived. See Melissa W. v. Dep't of Child Safety , 238 Ariz. 115, ¶ 9, 357 P.3d 150 (App. 2015) (argument unsupported by authority waived); Christina G. v. Ariz. Dep't of Econ. Sec. , 227 Ariz. 231, n.6, 256 P.3d 628 (App. 2011) (failure to develop argument on appeal constitutes abandonment and waiver of issue). We may reject an argument based on lack of proper and meaningful argument alone. Accordingly, we do not address J.W.’s arguments further. See City of Tucson v. Clear Channel Outdoor, Inc. , 218 Ariz. 172, ¶ 88, 181 P.3d 219 (App. 2008) (appellate court will not address issues or arguments waived by party's failure to develop them). Therefore, although we accept special action jurisdiction, we deny relief.

Special Paternity Proceeding

¶12 J.W. also argues that, by determining that Matthew is his "father," the juvenile court "disregard[ed]" A.R.S. § 25-1401 and violated J.W.’s due process right to ascertain his biological father. See § 25-1401 (child is legitimate...