Opinion
No. 2 CA-JV 2021-0027
10-04-2021
J.W., Appellant, v. DEPARTMENT OF CHILD SAFETY, Angelique G., and Matthew W., Appellees.
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.
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. 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. 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.
The juvenile court questioned whether the Pima County Office of Children's Counsel (OCC) properly represents J.W. in this matter. As we explain below, we harbor similar concerns and also question whether this appeal truly reflects J.W.’s litigation goals. Although we are skeptical that J.W. wishes to appeal the rulings before us, we leave the caption as filed intact.
The juvenile court consolidated the family law matter with the Rule 59 motion for purposes of the underlying hearing.
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. 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").
In that ruling, the juvenile court noted that the mother had not contested Matthew's presumptive paternity as established through J.W.’s birth certificate until DCS had sought relief pursuant to Rule 59, and that she had, in fact, previously sworn to the court that he was J.W.’s father.
¶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, 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. 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."
The juvenile court had previously found that although Matthew is not J.W.’s biological father, he is his presumptive legal father pursuant to A.R.S. § 25-814(A)(3) (presumption that man is father of child born out of wedlock if birth certificate is signed by mother and father). The court also found that, unless or until Matthew's presumptive paternity was properly rebutted, he retained his protected rights as J.W.’s parent. See A.R.S. § 1601(A).
The juvenile court signed the identical order again on February 19, 2021; that order bears multiple filing date stamps, including February 23, 2021, February 24, 2021, and March 3, 2021.
In a December 2020 report to the juvenile court, DCS reported the mother had indicated Hermosillo might be J.W.’s father. Although Hermosillo had agreed to complete a DNA test, he had not done so and was no longer returning DCS's telephone calls at the time of the report. J.W. does not mention Hermosillo in his brief on appeal.
¶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. This appeal followed.
The juvenile court also denied DCS's motion to compel the mother to move out of the grandmother's home, a finding J.W. does not challenge on appeal.
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. 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).
J.W. states in his opening brief, without any explanation or legal support, that he "has no remedy [on the Rule 59 ruling] except this appeal and special action."
¶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." 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).
Based on this record, it is unclear whether J.W. is aggrieved by the juvenile court's order here, a determination we need not make in light of our ruling on appeal. Cf. In re Pima Cnty. Juv. Action No. B-9385 , 138 Ariz. 291, 293-94, 674 P.2d 845, 847-48 (1983) (children were of an age to appreciate their "rights and responsibilities," making them aggrieved parties in adoption proceedings); R.A.J. v. L.B.V. , 169 Ariz. 92, 96, 817 P.2d 37, 41 (App. 1991) (child necessary party in paternity action brought by putative father).
¶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 child of natural parents and is entitled to support and education as if born in lawful wedlock). He requests that we allow the special paternity proceeding to be "properly heard" and then allow "appropriate" placement hearings to proceed. As the court correctly noted, the ruling in the special paternity matter is a final, appealable order.
¶13 However, J.W. has failed to address the juvenile court's finding that it lacked subject matter jurisdiction in the special paternity matter because J.W. sought to disestablish, rather than establish, paternity. The court pointed out that the relevant statutes permit a person to establish paternity, identity, or parentage, rather than disestablish paternity, as J.W. was attempting to do here. The court characterized J.W.’s argument as "an improper use of § 12-621," thereby divesting it of subject matter jurisdiction. See A.R.S. §§ 12-621(A), 25-803. As the court also noted, J.W. was not attempting to establish paternity in any known individual, but instead in John Doe. See Marriage of Worcester , 192 Ariz. 24, ¶ 7, 960 P.2d 624 (prohibiting mother from rebutting former husband's presumptive paternity "unless the mother is seeking child support from another"); see also § 25-803(A). Additionally, J.W. has failed to address, or even mention, the court's express concern that the relief he sought essentially constituted an "end-run" around A.R.S. § 8-533(B). That statute provides the sole grounds for the termination of parental rights. The fact that a parent is not genetically or biologically related to the child is simply not one of them. Nor has J.W. argued why that should be a ground for termination.
In his answering brief, Matthew also argues that, as J.W.’s attorney, the OCC was neither J.W.’s "best friend" nor his guardian ad litem, and thus did not have the authority to file a special paternity action on his behalf. See §§ 12-621(B), 25-803(A)(3). Other than obliquely referring to the OCC as J.W.’s "next friend" in its opening brief on appeal, the OCC does not meaningfully address its authority to file the special paternity petition.
The juvenile court stated, "John Doe, as a legal fiction, cannot be compelled to provide support" to J.W.
¶14 In the absence of any meaningful argument even mentioning, much less addressing, the juvenile court's ruling from which this portion of J.W.’s appeal is taken, we find his arguments waived and do not address them further. See Christina G ., 227 Ariz. 231, n.6, 256 P.3d 628 ; Clear Channel Outdoor, Inc. , 218 Ariz. 172, ¶ 88, 181 P.3d 219.
In light of our ruling, we need not determine if the juvenile court lacked subject matter jurisdiction over the paternity action.
Pima County Office of Children's Counsel
¶15 We address one other matter, which was not addressed by the appellant in its briefing but was raised by the juvenile court as a basis for its ruling. Specifically, the court strongly admonished the Pima County Office of Children's Counsel (OCC), suggesting counsel had committed ethical violations by "assuming the role" of guardian ad litem for J.W., despite the court not having appointed counsel to act in that capacity. See Ariz. R. P. Juv. Ct. 40(A) (court may appoint guardian ad litem "to protect the interest of the child"). The court noted that counsel had "silenced" J.W.’s voice. The court also observed that counsel had not requested the appointment of a guardian ad litem. See Ariz. R. Sup. Ct. 42, ER 1.14(b) (in appropriate cases, counsel may seek appointment of guardian ad litem). It found those failures dispositive as to the credibility of counsel's position: "[J.W.]’s counsel was not free to substitute her judgment for that of [J.W.] as she was not appointed guardian ad litem for [him]. Having abrogated her professional and ethical responsibilities to [J.W.], ... the Court puts little stock in what counsel deems to be in her [client's] best interests." The court also concluded that counsel "never set forth the wishes" of J.W.
¶16 When a child is appointed counsel during a termination proceeding, the child "is entitled to be represented by counsel that will advocate for his subjective goals in the litigation." Castro v. Hochuli , 236 Ariz. 587, ¶ 8, 343 P.3d 457 (App. 2015) ; Ariz. R. Sup. Ct. 42, ER 1.2(a) ("lawyer shall abide by a client's decisions concerning the objectives of representation and ... shall consult with the client as to the means by which they are to be pursued"). See also American Bar Association Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases § A-1 (1996) ("ABA Standards") (child's attorney "provides legal services for a child and ... owes the same duties ... to the child as is due an adult client"); Ariz. R. Sup. Ct. 42, ER 1.14(a) ("lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship" with client having diminished capacity).
¶17 In contrast, a guardian ad litem is "a person appointed by the court to protect the interest of a minor ... in a particular case before the court." A.R.S. § 8-531(7) ; see also ABA Standards § A-2 (guardian ad litem "is an officer of the court appointed to protect the child's interests without being bound by the child's expressed preferences"). In addition, "An attorney appointed to represent a child in a dependency proceeding has an obligation to seek appointment of a guardian ad litem if the child cannot express a preference or if that expressed preference would injure the child." Castro , 236 Ariz. 587, ¶ 10, 343 P.3d 457 (citing Ariz. R. Sup. Ct. 42, ER 1.14(b)).
¶18 Here, as the juvenile court noted, not only had it not appointed the OCC as J.W.’s guardian ad litem, but it was "skeptical" that counsel could "properly substitute her judgment" for J.W.’s wishes "even if she were permitted to do so." The OCC attempted to disestablish the paternity of Matthew, the only father J.W. has ever known and with whom he has bonded. And, as the court concluded, "apparently assuming the role" of guardian ad litem for J.W., the OCC argued, without support, that Matthew's "documented history of domestic violence against Mother somehow posed a substantial risk of harm to [J.W.]." Cf. Castro , 236 Ariz. 587, n.5, 343 P.3d 457 (minor's best interests, as protected by guardian ad litem, are implicated if counsel acts in contravention of minor's expressed wishes by pursuing termination petition).
¶19 Moreover, the OCC has failed on appeal to address, or even mention, the juvenile court's comments regarding its conduct below, or to acknowledge the similarities between the conduct at issue in Castro and this case. Worse, the OCC has filed a brief in this court that persists in making the very arguments the juvenile court strongly suggested breached the OCC's ethical duty to J.W. We expect and require the OCC to take seriously the ethical distinction between the duties of a guardian ad litem and an attorney appointed to represent the child's subjective interests. In this context, we find it unsettling that the OCC has failed to acknowledge, address, or rebut the juvenile court's express concerns as to the ethical propriety of its actions. Based on the court's comments and the record before us, including the brief on appeal, we conclude counsel's actions do not comply with the standards we expect from the OCC or counsel appearing before us.
The troubling litigation posture before the juvenile court was taken by Ms. Edith Croxen, Chief Counsel for the OCC. She is also responsible for the content of this appeal and for setting an example for the attorneys in her office. By disregarding the concerns set forth by this court in Castro (wherein she was counsel for the OCC), by failing even to acknowledge the juvenile court's well-taken concerns in this case, and by nonetheless persisting with her ethically questionable arguments on appeal, Ms. Croxen demonstrates her apparent unwillingness to be constrained by ethical rules that are central to the proper role of the OCC in handling its cases. See Castro , 236 Ariz. 587, ¶ 13, 343 P.3d 457. Accordingly, we are duty-bound to refer this case to the State Bar of Arizona to investigate whether Ms. Croxen has committed ethical violations.
Disposition
¶20 For the foregoing reasons, we accept special action jurisdiction of the granting of the Rule 59 motion but deny relief, and we affirm the dismissal of the special paternity petition.