Maricopa County Juvenile Action No. JD-500200, Matter of, JD-500200
| Decision Date | 24 October 1989 |
| Docket Number | CA-JV,JD-500200,No. 1,1 |
| Citation | 788 P.2d 1208,163 Ariz. 457 |
| Parties | In the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION NO.89-006. |
| Court | Arizona Court of Appeals |
Robert K. Corbin, Atty. Gen. by Robert J. Sorce, Asst. Atty. Gen., Phoenix, for appellee Arizona Dept. of Economic Sec.
Anthony Giammarco, Mesa, for appellant Natural Father.
Kessler & Doyle by Eric W. Kessler and Michael J. Doyle, Mesa, for appellee Minor Child.
Robert B. Bushor, Tempe, for appellee Mother.
This appeal is taken by the alleged natural father from the order of the juvenile court adjudicating the minor a dependent. The issue is whether the juvenile court abused its discretion by finding the minor dependent solely because appellant, although claiming to be an otherwise appropriate parent, had not legally established either his paternity or his right to custody. For the reasons stated below, we find that the juvenile court's determination of dependency was reasonable and supported by clear and convincing evidence. 1 We therefore affirm the dependency.
The minor child (O.) and three other siblings were removed from their mother's home on August 31, 1988 because of the unfit condition of the home and the mother's neglect of the children. At the time of their removal, the mother was unable to provide any information concerning the children's fathers or who might be available to care for them in her stead. The children were therefore taken into temporary custody by the Department of Economic Security (DES).
On September 1, 1988, the mother informed a DES caseworker that appellant was the father of all four children. On September 2, 1988, appellant told the caseworker that he was "relatively certain" that he was the father of O., but that he was unsure about the other children.
Appellant and the natural mother have never been married and appellant's name does not appear on any of the children's birth certificates. No order of custody exists as to either parent for any of the children nor has either the mother or appellant ever sought or obtained an official determination as to appellant's paternity. When questioned by the caseworker about visitation arrangements, appellant replied that he did not see the children on a regular basis but only "at the mother's whim."
On September 2, 1988, DES filed a dependency petition alleging that the mother was unable and unwilling to provide proper parental care and control of her four children. This allegation was based on the unfit condition of the home and the mother's neglect. The petition also alleged dependency as to appellant because, although he acknowledged his paternity of O., his parenting ability was then unknown.
On September 14, 1988, a home study was conducted, and appellant's home was deemed a suitable placement for O. Therefore, on September 20, 1988, he was granted physical custody of O. At trial, appellant moved to dismiss the dependency petition as to O. claiming that, following her placement with him, he had proven himself to be an appropriate caretaker. The court refused to dismiss the petition on the ground that no legal determination as to appellant's paternity or right to custody existed.
Following trial, the court found by clear and convincing evidence that all four children were dependent. As to O., the court stated:
Although [appellant] is providing appropriate parental care and guidance for [O.], he is not legally capable of continuing to provide proper and effective parental care and control for the reason that he does not have any legal right to custody of the child under either existing statutes or custody orders.
Appellant timely appealed. He now claims that the evidence was insufficient to support the finding of dependency, and he asks this court to reverse the trial court's decision as it pertains to O.
Under Arizona law, a child is deemed to be dependent when he or she has been adjudicated to be:
In need of proper and effective parental care and control and ... has no parent or guardian willing to exercise or capable of exercising such care or control.
A.R.S. § 8-201(11)(a); A.R.S. § 8-546(A)(4)(a) (emphasis added).
Appellant argues that the evidence is insufficient to show that he is either incapable or unwilling to adequately care for and control the minor child. He asserts that O. should not have been adjudicated dependent because his paternity of her is undisputed and he has clearly demonstrated both his ability and his willingness to provide effective parental care. These factors, appellant asserts, are the only ones the trial court should have considered in determining dependency.
In support of his position, appellant points out that the dependency statutes have no requirement that a putative parent establish paternity or right to custody in order to avoid a finding of dependency. Additionally, he notes that lack of the title "legal father" did not prevent his obtaining physical custody of the minor child less than one month after her removal from her mother's home. Therefore, he argues, the trial court abused its discretion by finding O. dependent solely on the ground that he has no paternity or custody order when he is undisputedly an otherwise appropriate parent.
The state responds that proper and effective parental care necessarily includes the legal ability to exercise the rights of a parent, including the right to protect one's child from abuse and neglect. Such legal ability is necessary in this case, the state claims, because the abusive mother requested dismissal of the dependency petition and return of the child to her custody.
In addition, the state asserts that, unless the father's status is legally established, the abusive mother would have a superior right to custody of O. if a custody dispute should arise. Thus, the state argues, appellant is not legally capable of continuing to provide proper and effective parental care and control.
We respond first to appellant's claim that the trial court erred by injecting arguments relating to lack of legally established paternity or custody into its determination of dependency. Apparently, appellant would have us believe that, because the dependency statutes do not specifically state that a "parent" must be one who possesses a paternity or custody order, therefore one claiming to be a parent and who has otherwise appropriate parenting skills can be a "parent" under the statute. According to appellant's interpretation of the dependency statutes, the only factors the court should have considered were his undisputed willingness and proven ability to physically care for O.
We disagree. The dependency statutes do not and need not enumerate each and every instance of what constitutes proper and effective parental care and control. However, at the threshold, the one claiming to be able to exercise that care and control must have the legal ability to do so. In this case, effective parental care necessarily includes the continuing ability to protect the child from a potentially abusive mother. A comparable situation existed in Appeal in Pima County Juvenile Action No. J-77188, 139 Ariz. 389, 678 P.2d 970 (App.1983), in which the court affirmed the sufficiency of a dependency petition as to the mother, despite the fact that the mother was undeniably a fit and willing parent, because the mother was legally incapable of preventing further sexual abuse by the father. The court held that the mother's legal inability to protect the child from a potentially abusive father was a sufficient basis for the dependency petition. Id. at 393, 678 P.2d at 974. Here, although appellant is fit and willing to parent, if he cannot legally protect O. from the potentially abusive mother, the child may be found to be statutorily dependent.
Appellant also argues that, after DES filed the dependency petition, he was granted physical custody of O. although no circumstances had changed other than the filing of the dependency. Thus, he argues, if he did not need to establish paternity or custody rights to obtain custody at that time, he should not be required to do so now to avoid a finding of dependency.
What appellant ignores is that, absent the dependency petition and temporary grant of custody to DES, his right to custody of O. has no...
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...will not disturb a dependency adjudication unless no reasonable evidence supports it. In re Maricopa County Juvenile Action No. JD-500200, 163 Ariz. 457, 461, 788 P.2d 1208, 1212 (App.1989). And, because "[t]he primary consideration in a dependency case is always the best interest of the ch......
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