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Roberto F. v. Department of Child Safety

Court of Appeals of Arizona, First Division

August 14, 2014

ROBERTO F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, JIMMY S., TRACIE H., L.F., I.A., Appellees.

Appeal from the Superior Court in Mohave County No. S8015AD201200034 The Honorable Richard Weiss, Judge

Mohave County Legal Defender's Office, Kingman By Diane S. McCoy Counsel for Appellant.

Arizona Attorney General's Office, Mesa By Amanda L. Adams Counsel for Appellee Arizona Department of Child Safety.

Law Office of Michele Holden P.L.L.C., Kingman By Michele Holden Counsel for Appellees Jimmy S. and Tracie H.

Judge Kenton D. Jones delivered the opinion of the Court, in which Presiding Judge Peter B. Swann joined and Judge Patricia K. Norris specially concurred.

OPINION

JONES, Judge:

¶1 The juvenile court terminated the parental rights of Roberto F. (Father) to two minor children, L.F. and I.A. (the children), in late 2011. While his appeal of that termination order was pending, the juvenile court, in a separate action, granted a petition for adoption of the children in favor of Jimmy S. and Tracie H. (Foster Parents). This Court later vacated the juvenile court's order terminating Father's parental rights, and Father then moved to set aside the adoption in the juvenile court. The court denied his motion and Father timely appealed. On December 18, 2013, we issued an order vacating the adoption as well as the order denying Father's motion to set aside the adoption, with a written decision to follow. This is that decision.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father is the biological father of two minor children, L.F. and I.A. In November 2011, Father's parental rights were terminated as to the children. Father timely appealed the termination order.

¶3 While Father's termination appeal was pending before this Court, the Arizona Department of Child Safety (DCS), [1] on behalf of Foster Parents, filed a separate action requesting the juvenile court allow the Foster Parents to adopt the children. Following an adoption hearing, the juvenile court granted that request and entered an order of adoption. Father was not provided notice of the adoption petition, adoption hearing, or entry of the adoption order as his rights had been terminated. See Ariz. Rev. Stat. (A.R.S.) § 8-106(B)(2).[2]

¶4 Subsequently, this Court vacated the order terminating Father's parental rights to the children. Roberto F. v. Ariz. Dep't of Econ. Sec, 232 Ariz. 45, 59-60, ¶ 73, 301 P.3d 211, 225-26 (App. 2013). Thereafter, this Court's mandate issued in Roberto F., finalizing the restoration of Father's parental rights. See Ariz. R.P. Juv. Ct. 107(H).

¶5 After we vacated the termination order, but before we issued the mandate, Father moved the juvenile court to set aside the adoption order, pursuant to Arizona Rule of Procedure for the Juvenile Court (ARPJC) 85(A), which incorporates by reference Arizona Rule of Civil Procedure 60(c). The juvenile court denied Father's motion and Father timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-2101(A)(1).

ISSUE PRESENTED

¶6 Father asserts the juvenile court lacked jurisdiction[3] to enter the order of adoption while his appeal of the termination order was pending. Specifically, Father argues that ARPJC 103(F) divested the juvenile court of jurisdiction to grant the adoption petition while he was appealing the order terminating his parental rights. Foster Parents, along with DCS, contend that ARPJC 103(F) cannot be read to limit the authority of the juvenile court to act in a new matter (the adoption) concerning new parties if the appealing parent does not obtain a stay of the termination order under ARPJC 103(B).[4] Absent a stay pursuant to ARPJC 103(B), Foster Parents and DCS contend the juvenile court is free to proceed with the adoption and is therefore not required to postpone the adoption proceeding until the biological parent's termination appeal process has concluded.

STANDARD OF REVIEW

¶7 We review issues of jurisdiction de novo. Thomas v. Thomas, 203 Ariz. 34, 35-36, ¶ 7, 49 P.3d 306, 307-08 (App. 2002); Murphy v. Bd. of Med. Exam'rs, 190 Ariz. 441, 446 n.8, 949 P.2d 530, 535 n.8 (App. 1997). We also review de novo the interpretation of statutes and court rules. Cranmer v. State, 204 Ariz. 299, 301, ¶ 8, 63 P.3d 1036, 1038 (App. 2003).

DISCUSSION

I. Father's Appeal of the Termination Order Divested the Juvenile Court of Jurisdiction to Enter the Adoption.

¶8 A termination proceeding begins with the filing of a petition by "[a]ny person or agency that has a legitimate interest in the welfare of a child." A.R.S. § 8-533(A). As applicable here, the juvenile court may sever a parent-child relationship if it finds any of the grounds enumerated in § 8-533(B) has been established by clear and convincing evidence and concludes by the preponderance of the evidence that the termination of the parent's rights is in the child's best interests. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005); Michael J. v. Ariz. Dep't of Econ. Sec, 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). Entry of "[a]n order terminating the parent-child relationship shall divest the parent and the child of all legal rights, privileges, duties and obligations with respect to each other . . . ." A.R.S. § 8-539.[5] " The order is conclusive and binding on all persons from the date of entry." A.R.S. § 8-538(A).

¶9 Adoption is a separate proceeding from an action to terminate a parent-child relationship. An adoption proceeding commences with the filing of an adoption petition by a "potential adoptive parent or parents, an agency or the division, " which must contain specified information. A.R.S. § 8-109(A). Once the petition to adopt has been filed, an adoption hearing is set by the juvenile court. A.R.S. § 8-111. Notice of the hearing must be sent to, inter alia, all persons required to give consent to the adoption pursuant to § 8-106; notice, however, need not be sent to a parent whose rights have been terminated. A.R.S. § 8-106(B)(2). The juvenile court may grant an adoption if the petitioner is able to demonstrate by a preponderance of the evidence: (1) "the petitioner is a fit and proper person to adopt;" and (2) the adoption "is in the best interests of the child to be adopted." Ariz. R.P. Juv. Ct. 84(B).

¶10 The question presented by Father's appeal is whether the notice of appeal of an order terminating a parent's rights divests the juvenile court, in a subsequently filed adoption proceeding, of jurisdiction to ...


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