Marco C. v. Sean C.

• Decision Date: 05 May 2008
• Docket Number: No. 2 CA-JV 2007-0096.,2 CA-JV 2007-0096.
• Citation: 181 P.3d 1137,218 Ariz. 216
• Parties: MARCO C., Appellant, v. SEAN C. and Colleen C., Appellees.
• Court: Arizona Court of Appeals

181 P.3d 1137

218 Ariz. 216

MARCO C., Appellant, v. SEAN C. and Colleen C., Appellees.

No. 2 CA-JV 2007-0096.

Court of Appeals of Arizona, Division 2, Department A.

May 5, 2008.

The Shanker Law Firm, PLC by Tamera C. Shanker, Tempe, Attorney for Appellant.

Steven M. Ellsworth, PC by Steven M. Ellsworth, Mesa, Attorney for Appellees.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant Marco C., the putative father of Baby G., challenges the juvenile court's order in the underlying adoption proceeding declaring unnecessary Marco's consent to the child's adoption by appellees Sean C. and Colleen C. and permitting the adoption to proceed over his objection. We conclude the court correctly found Marco failed to comply with the requirements of A.R.S. § 8-106.01 and thus did not err.

¶ 2 Sylvia G. gave birth to Baby G. on May 14, 2007. Before the child was born, Sylvia and Marco had communicated with one another through electronic mail (email). Based on those emails, at least as early as March 2007, Sylvia and Marco had acknowledged Sylvia's pregnancy and both believed Marco was likely the biological father of the child Sylvia was carrying. Nevertheless, on May 17, 2007, Sylvia signed an affidavit in which she avowed her husband Benjamin was the biological father of Baby G. That same day, Sylvia and Benjamin executed consents to place Baby G. for adoption, relinquishing their parental rights.

¶ 3 On June 14, 2007, thirty-one days after Baby G. was born, Marco filed a notice of claim of paternity with the Arizona Department of Health Services, claiming to be Baby G.'s biological father. On August 22, Sean and Colleen served Marco with a Potential Father Notice, as required by A.R.S. § 8-106(G). Marco filed a petition to establish paternity of Baby G. in Maricopa County Superior Court on September 19. On October 5, Sean and Colleen filed a petition to adopt Baby G. in Pima County Juvenile Court. They alleged, inter alia, that Marco had failed to comply with A.R.S. § 8-106(G)(3) by not serving Sylvia with a copy of the paternity action within thirty days of the date he had been served with the notice to potential father. Sean and Colleen then filed a motion for an order declaring that Marco's consent to their adoption of Baby G. was unnecessary for two reasons: Marco had failed to file the notice of claim of paternity within thirty days of Baby G.'s birth as required by § 8-106.01(B), and he had failed to timely effect service of the paternity complaint in compliance with § 8-106(G)(3) and (J). Marco filed a combined notice of intent to contest the adoption of Baby G., a motion to vacate the adoption hearing that had been set on the petition, and a response to Sean and Colleen's motion. The juvenile court refused to vacate or delay the adoption hearing and granted Sean and Colleen's motion after a hearing, finding Marco's consent to Baby G.'s adoption was unnecessary. This appeal followed.

¶ 4 We will not disturb the juvenile court's order in an adoption proceeding absent an abuse of discretion. See Leslie C. v. Maricopa County Juv. Court, 193 Ariz. 134, 135, 971 P.2d 181, 182 (App.1997). "No abuse exists if evidence in the record supports the court's ruling." Id. To soundly exercise its discretion, the court must also correctly apply the law. See Allen v. Chon-Lopez, 214 Ariz. 361, ¶ 9, 153 P.3d 382, 385 (App.2007).

¶ 5 Section 8-106.01(A) requires a putative father who wishes to receive notice of and participate in adoption proceedings relating to a child he believes is his to "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." Section 8-106.01(B) permits a putative father to file the notice before the child is born but requires that it be filed "within thirty days after the birth of the child." If a putative father fails to file the notice claiming paternity as required by the statute, he "waives his right to be notified of any judicial hearing regarding the child's adoption[,] and his consent to the adoption is not required, unless he proves, by clear and convincing evidence, both . . . [that i]t was not possible for him to file a notice of a claim of paternity" within the required period and that "[h]e filed a notice of a claim of paternity within thirty days after it became possible for him to file." § 8-106.01(E); see also § 8-106 (providing circumstances under which father's consent required before child may be adopted).

¶ 6 Marco does not dispute that he filed his notice on the thirty-first day after Baby G.'s birth. In a cursory fashion, he contends that §§ 8-106 and 8-106.01 "do not afford an unwed father much protection, particularly in the case of newborn adoptions," implying the statutes are constitutionally infirm. Because Marco cites no authority for these propositions and fails to sufficiently develop this argument on appeal, we need not consider it. See Adrian E. v. Ariz. Dep't of Econ. Sec., 215 Ariz. 96, ¶ 22, 158 P.3d 225, 231 (App.2007). Moreover, because Marco never raised this precise issue below, we may refuse to consider it. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 7, 119 P.3d 467 471 (App.2005). But this court may, in its discretion, address constitutional arguments raised for the first time on appeal. See State v. Rodriguez, 205 Ariz. 392, ¶ 27, 71 P.3d 919, 927 (App.2003). We choose to address Marco's cursory constitutional challenge to Arizona's putative father registry and the adoption statute, as the latter relates to putative fathers.

¶ 7 In Lehr v. Robertson, 463 U.S. 248, 264-65, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the United States Supreme Court found New York's paternity registry an appropriate means of accommodating and protecting the existing, yet undeveloped rights of putative fathers. The Court stated, "Since the New York statutes adequately protected [the putative father's] inchoate interest in establishing a relationship with [the child], we find no merit in the claim that his constitutional rights were offended because the family court strictly complied with the notice provisions of the statute." Id. at 265, 103 S.Ct. 2985. Thus, we find without merit Marco's suggestion that, because he demonstrated his desire to assert his rights and establish a relationship with Baby G. by filing the notice with the registry and by pursuing the paternity action, he should be excused from complying with the terms of the statute or that strict application of its provisions here was unconstitutional.

¶ 8 Marco also contends the juvenile court erred when it concluded his consent to the adoption was unnecessary, insisting there was clear and convincing evidence that he fell within the exceptions under § 8-106.01(E).¹ We disagree.

¶ 9 "When a statute is clear and unambiguous, we apply its plain language and need not engage in any other means of statutory interpretation." Kent K. v. Bobby M., 210 Ariz. 279, ¶ 14, 110 P.3d 1013, 1017 (2005); see also Bilke v. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269, 271 (2003). Section 8-106.01(B) clearly and unambiguously sets a time limit that can be excused only under the limited circumstances prescribed in § 8-106.01(E). The legislature, therefore, has balanced the policy considerations involved and concluded that the theoretical ten-month period between a child's conception and thirty days after the child's birth gives the father an adequate opportunity to file his notice. It has also chosen to severely limit the circumstances in which this period may be extended. Although the result may be harsh when a father misses this deadline, we do not second-guess the legislature's policy decision. See Diana H. v. Rubin, 217 Ariz. 131, ¶ 35, 171 P.3d 200, 208 (App.2007).

¶ 10 Cases from other jurisdictions have strictly applied similar statutes.² See, e.g., Heidbreder v. Carton, 645 N.W.2d 355, 369-70 (Minn.2002) (mother's allegedly fraudulent concealment of her location and misrepresentation of intent did not excuse putative father's failure to register timely with father's adoption registry); Hylland v. Doe, 126 Or. App. 86, 867 P.2d 551, 553, 556-57 (1994) (concluding trial court correctly rejected adoption challenge by biological father who failed to comply timely with putative-father-registry statute but had filed paternity action in another state within days of child's birth); Sanchez v. L.D.S. Social Servs., 680 P.2d 753, 755 (Utah 1984) (rejecting biological father's challenge to adoption and finding "of no constitutional importance that [father] came close to complying with" Utah's putative father registry); In re Adoption of B.B.D., 984 P.2d 967, ¶¶ 2-6, 12 (Utah 1999) (holding unmarried, nonresident, biological father lost parental right to or interest in child born in Utah by failing to register with putative-father registry, notwithstanding attempts to register with Washington's putative-father registry); Beltran v. Allan, 926 P.2d 892, 895-96, 898 (Utah Ct.App.1996) (finding trial court properly entered summary judgment against biological father who failed to register with Utah's putative-father registry to obtain custody of child born in Utah despite his having filed paternity action in California weeks before child's birth). Accordingly, unless Marco's situation falls within the narrow statutory exception, he cannot be excused from failing to file the notice within the prescribed period.

¶ 11 The juvenile court implicitly, and correctly, acknowledged the standard it was required to apply before it granted Sean and Colleen's motion and ordered that Marco's consent to Baby G.'s adoption was unnecessary. It noted, "as soon as [Marco] learned that the mother planned to place the minor for adoption, he began to investigate what he needed to do and believed he was within the 30 day registry." Nevertheless, as the court correctly found, Marco had failed to file the notice within the...