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In re Ramirez

Court of Appeals of Arizona, First Division

November 22, 2016

In re the Matter of: CHRISTOPHER J. RAMIREZ, Petitioner/Appellant, SUNDAY R. BARNET, Respondent/Appellee. URHAN KENNETH MERSIMOVSKI and WILLIAM L. HILDEBRANT, Intervenors.

         Appeal from the Superior Court in Maricopa County No. FC2014-095815 The Honorable Joseph Sciarrotta, Jr., Judge (Retired) The Honorable Shellie Smith, Judge Pro Tempore The Honorable Carolyn K. Passamonte, Judge Pro Tempore. REVERSED AND REMANDED WITH INSTRUCTIONS

         COUNSEL

          Steadman Law Firm PLC, Mesa By Timothy W. Steadman Counsel for Petitioner/Appellant

          Cavanagh Law Firm, Phoenix By Helen R. Davis, Timea R. Hargesheimer Counsel for Intervenors

          Presiding Judge Patricia K. Norris delivered the opinion of the Court, in which Chief Judge Michael J. Brown and Judge Patricia A. Orozco joined.

          OPINION

          NORRIS, Judge

         ¶1 Petitioner/Appellant Christopher J. Ramirez appeals from the Arizona family court's order dismissing his verified petition to establish paternity of a child born to Respondent/Appellee Sunday R. Barnet for lack of jurisdiction. We reject the argument raised by Intervenors on appeal, Urhan Kenneth Mersimovski and William L. Hildebrant ("Intervenors"), that the family court properly dismissed Ramirez's paternity proceeding because, under the Parental Kidnapping Prevention Act ("PKPA"), 28 U.S.C.A. § 1738A (West 2000), it was required to give full faith and credit to an order entered by a New York court granting their petition to adopt the child. Further, as Ramirez argues on appeal, the family court had jurisdiction to act on his paternity petition under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified in Arizona Revised Statutes ("A.R.S.") sections 25-1001 to -1067 (Supp. 2015).[1]Thus, we reverse and remand for further proceedings as instructed below. See supra ¶ 34.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Barnet became pregnant in February 2014, and the child was born on October 27, 2014. Ramirez believed he was the child's father. A few days before the child's birth, Barnet left Ramirez and stopped communicating with him. Ramirez found out Barnet had given birth to the child at a local hospital, and went to the hospital a day after the child's birth, but was not allowed to see the child. On October 30, 2014, Ramirez filed a verified petition in the family court to establish paternity, legal decision making, parenting time, and support (the "paternity petition").

         ¶3 At the same time Ramirez filed the paternity petition, he also filed a verified motion for emergency temporary custody orders without notice ("temporary orders motion"). Ramirez alleged in the temporary orders motion that Barnet's oldest daughter was the subject of a pending dependency/termination of parental rights proceeding filed by the Arizona Department of Child Safety ("DCS"), and that DCS had informed Barnet that if she had another child it would take the child into care. Given this, Ramirez argued that he and his family should be allowed to care for the child. Accordingly, Ramirez sought both emergency and temporary legal decision making and physical custody of the child. On November 6, 2014, the clerk of the court entered an order signed by the family court on November 4, 2014, granting Ramirez emergency temporary legal decision making and physical custody of the child and ordering any person having physical custody of the child to immediately relinquish custody to Ramirez ("the temporary order"). The court also set a "return hearing" on the temporary orders motion for November 19, 2014. A private process server served Barnet with the paternity petition, the temporary orders motion, and the temporary order on November 15, 2014.

         ¶4 A day before the return hearing, Barnet moved to dismiss the paternity petition and the emergency temporary custody order for lack of jurisdiction. In that motion-which was not accompanied by any under-oath declaration or affidavit-Barnet alleged that before the child's birth, she had contacted an adoption attorney and arranged for Intervenors to adopt the child. Barnet alleged she had consented to Intervenors' adoption of the child on October 30, 2014, and Intervenors had obtained physical custody of the child on that same day.[2] Barnet attached to the motion to dismiss a copy of what she asserted was her consent to Intervenors' adoption of the child. Barnet further asserted the administrator of the Interstate Compact of the Placement of Children ("ICPC") had granted Intervenors permission to leave Arizona with the child and return to their home in New York and that the child was currently living with Intervenors in New York. See A.R.S. §§ 8-548 to -548.06 (Supp. 2015) ("Arizona ICPC").

         ¶5 Of significance to this appeal, Barnet also asserted Intervenors had initiated adoption proceedings in New York on October 30, 2014. Barnet further asserted the New York court had "already begun proceedings regarding the adoption process" and had ordered Ramirez to appear before it on January 14, 2015, if he wished to contest Intervenors' adoption of the child. And, relying on the UCCJEA, A.R.S. § 25-1002(7)(b), she argued New York was the child's "home state" and New York, not Arizona, had jurisdiction "to hear this matter."

         ¶6 At the November 19, 2014 return hearing, Barnet, through counsel, disputed that Ramirez was the child's father. She also asserted-and Ramirez's counsel confirmed - that at the beginning of the hearing Ramirez had been served with "paperwork" regarding the New York adoption proceeding and had been ordered by a court in New York to appear at a January 14, 2015 hearing if he wished to contest Intervenors' petition to adopt the child. Ramirez argued, however, that even though Intervenors had filed a petition to adopt the child in New York, Arizona, and not New York, had jurisdiction over the case because the child was in Arizona when he filed the paternity petition and, thus, Arizona was the child's "home state" under the UCCJEA.

         ¶7 At the conclusion of this hearing, the family court judge informed the parties she would conduct a conference with Intervenors' counsel and the New York court "as soon as possible" pursuant to the UCCJEA. See A.R.S. § 25-1010 ("A court of this state may communicate with a court in another state."). For reasons not disclosed by the record, that conference did not occur. On December 15, 2014, the family court judge then assigned to the matter entered an order setting an evidentiary hearing for April 2, 2015, before a different family court judge. In the order setting the evidentiary hearing, the family court judge explained she was unwilling to rule on Barnet's motion to dismiss

without an evidentiary hearing at which [Barnet] may provide more specific information regarding the birth of the child, the initiation of adoption proceedings in New York, the current status of that proceeding and case information for those proceedings, including case name, number, identification of the specific court and judicial officer handling the case. [Barnet] shall also be prepared to provide this Court with proof of the agency utilized to effectuate the transfer of the child, pursuant to A.R.S. [§] 8-548 et seq., and the proof of identity of the child's biological father as required by A.R.S. [§] 8-548(b)(2).

The family court judge also informed the parties that at the conclusion of the April 2, 2015 hearing, the family court would decide whether it should conduct a UCCJEA conference with the New York court before ruling on Barnet's motion to dismiss.[3]

         ¶8 In February 2015, Ramirez moved to accelerate the evidentiary hearing scheduled for April 2, 2015. Barnet opposed the motion to accelerate and requested that the court vacate the April hearing. Asserting Ramirez had failed to appear in the New York adoption proceeding and the New York court had entered an order on February 3, 2015, granting Intervenors' petition to adopt the child, Barnet argued the New York court's adoption order was entitled to full faith and credit and, thus, there was "nothing left to contemplate or decide." The family court denied Ramirez's motion to accelerate the hearing.

         ¶9 At the April 2015 evidentiary hearing, Ramirez acknowledged he had not appeared at the January 14, 2015 New York adoption proceeding to contest Intervenors' petition to adopt the child. He also conceded the New York court had entered an order on February 3, 2015, granting Intervenors' petition to adopt the child. Nevertheless, he argued the New York adoption order was invalid because Arizona was the child's home state when he filed the paternity petition. Ramirez also testified at the hearing and explained why he believed he was the child's father and explained that he and Barnett had planned to raise the child together.[4]

         ¶10 Following the April 2015 hearing, the family court found that when Ramirez filed his paternity petition, it had home state jurisdiction under the UCCJEA to make an initial child custody determination. Because a UCCJEA conference with the New York court had not been held, the family court informed the parties it would schedule such a conference with the New York court and, after the conference, would rule on Barnet's motion to dismiss. Subsequently, the family court granted Barnet's motion to dismiss (the "dismissal order"). In the dismissal order, the family court explained its staff had contacted the New York court and had been informed that the "[New York court did] not believe [it had] jurisdiction any longer over the adoption case as the adoption [had been] completed and [there were] no set of circumstances where a DNA Test would be ordered." Given this, the family court determined it did not have "jurisdiction or authority to take any action over" the child and no basis to determine if Ramirez was the child's father.

         ¶11 After Ramirez appealed the family court's dismissal order, this court granted Intervenors' motion to intervene in the appeal. Although Intervenors' filed an answering brief, Barnet did not.

         DISCUSSION

         ¶12 Ramirez argues the family court should not have dismissed his paternity petition because it had jurisdiction over his petition under the UCCJEA. Even though Ramirez, Barnet, and indeed, the family court, relied solely on the UCCJEA, Intervenors argue we do not need to address Ramirez's UCCJEA jurisdictional argument because the dispositive issue presented in this appeal is whether the New York adoption order is entitled to full faith and credit under the PKPA. Although we agree with Intervenors that the PKPA and not the UCCJEA governs the full faith and credit issue presented in this appeal, we disagree with them that the PKPA required the family court to give full faith and credit to the New ...


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