Frank R. v. Mother Goose Adoptions

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
FRANK R.,
Appellant,

v.

MOTHER GOOSE ADOPTIONS
Appellee.

No. CV-16-0051-PR
Filed October 2, 2017

Appeal from the Superior Court in Pima County
The Honorable K.C. Stanford, Judge
No. S20140221
AFFIRMED

Opinion of the Court of Appeals, Division Two
239 Ariz. 184 (App. 2016)
VACATED IN PART, AFFIRMED IN PART

COUNSEL:

Sarah Michèle Martin (argued), Tucson, Attorney for Frank R.

John J. Egbert (argued), Kerry A. Hodges, Jennings, Strouss & Salmon,
P.L.C., Phoenix, Attorneys for Mother Goose Adoptions

Patrick Lacroix, Arizona Children's Law, LLC, Tucson, Attorneys for
Amicus Curiae David and Carolyn Price

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
TIMMER and BOLICK joined.

JUSTICE BRUTINEL, opinion of the Court:

¶1 Frank R.’s parental rights were terminated because he did not
register with the Arizona putative fathers registry as required by A.R.S.
§ 8-106.01. Failure to register is a statutory ground for severance, and we
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hold that putative fathers must comply with § 8-106.01 to avoid severance
pursuant to A.R.S. § 8-533(B)(6). Because Frank did not register, although
he had both opportunity and time to do so, the juvenile court did not err
when it severed his parental rights.

I. BACKGROUND

¶2 In the summer of 2013, Rachel (18) and Frank (21), both
California residents, developed an intimate relationship, and in early
August learned that Rachel was pregnant. Several weeks later their
relationship unraveled, and the couple separated. After their separation
and during the early pregnancy, Frank did not provide Rachel with
financial or emotional support.

¶3 In December 2013, Rachel called the Adoption Network Law
Center (“ANLC”) to place the expected baby for adoption and gave an
advisor Frank’s name and home phone number as the likely father. She did
not identify any other likely father. In February 2014, Frank told Wendy
McGreevy, an attorney at ANLC, “If the baby turns out to be mine, I will
100 percent take the baby and raise it.” ANLC subsequently declined to
accept the baby for adoption, recognizing that the adoption would likely be
contested.

¶4 In March 2014, unbeknownst to Frank, Rachel called Mother
Goose Adoptions in Arizona seeking to place her unborn child for
adoption. Rachel told Mother Goose she had no idea who the child’s father
was and did not tell Mother Goose about her rejected application with
ANLC (leaving an application question blank). Rachel later signed an
affidavit falsely stating no man had acknowledged or claimed paternity of
the child or had provided or promised to provide her support during the
pregnancy, and there was no person she had reason to believe had an
interest in the child.

¶5 On May 5, Rachel gave birth to E.E. in Maricopa County, with
the adoptive mother in attendance. Three days later, Rachel executed a
Relinquishment of Parental Rights for Adoption, relinquishing her rights to
Mother Goose. The next day, Frank asked Rachel about the baby through
Facebook, and Rachel responded that the baby was not his. Frank
continued to ask about the baby and wrote, “if [it’s] mine, [I’m] going to
support the baby.” Mother Goose filed a petition for termination of the

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parent–child relationship and appointment of a guardian for the child on
May 14 in Pima County Superior Court.

¶6 In that severance petition, Mother Goose alleged that Rachel
resided in Arizona at the hotel it had arranged for her while she was in
Phoenix. Further alleging that the identity of the child’s father was
unknown, Mother Goose sought to terminate Rachel’s rights pursuant to
A.R.S. § 8-533(B)(7) and the rights of any potential father pursuant to A.R.S.
§ 8-533(B)(5), claiming that no putative father had timely served Rachel
with a paternity action after service of notice pursuant to A.R.S. § 8-106(G).
That notice, which is required in an adoption under A.R.S. § 8-106, was
served by publication in Maricopa County, with the last notice appearing
in May 2014. The published notices listed Rachel’s address as her Phoenix
hotel, instead of her permanent California address, and purported to serve
only “John Doe” with no other identifying information.

¶7 On July 30, 2014, the juvenile court terminated the parental
rights of “John Doe” and Rachel and relinquished jurisdiction to Tennessee,
the adoptive parents’ home state, pursuant to A.R.S. § 25-1032(A)(2).

¶8 Meanwhile, Frank had seen a photograph of E.E. on
Facebook and believed the child looked like him. In early July, he filed a
petition to establish parental rights in California. Rachel was served with
the California petition on July 30, coincidently the same day the juvenile
court here terminated the parental rights of “John Doe.”

¶9 Rachel advised Mother Goose of the California petition and
Mother Goose requested that the Arizona juvenile court reassert
jurisdiction. In late August, the court granted Mother Goose’s request
along with its motion to file an amended petition to terminate Frank’s
parental rights. Alleging that Frank had failed to file a notice of claim of
paternity within thirty days of E.E.’s birth, Mother Goose sought to
terminate Frank’s parental rights under A.R.S. § 8-533(B)(6). Mother Goose
did not advise the court that Frank had filed a petition in California to
establish paternity.

¶10 Frank appeared for a hearing on the California petition on
August 28. Rachel appeared by counsel and moved to quash the California
action and to place E.E. in a guardianship pending adoption, stating that an
earlier action was pending in Arizona to terminate parental rights. Frank

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learned at that hearing for the first time that E.E. was born in Arizona, that
Arizona was E.E.’s home state under the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”), that Mother Goose had
filed a petition to terminate his parental rights in Arizona, and that the baby
had been placed with prospective adoptive parents in Tennessee.

¶11 Frank traveled to Arizona and filed a pro se response to
Mother Goose’s first-amended petition and attended a hearing on
October 8. The juvenile court appointed counsel for Frank at that hearing
and, at Frank’s request, ordered a paternity test, which established him as
E.E.’s father. The Arizona court asserted jurisdiction after conferring with
the California court, pursuant to the UCCJEA, and conducted the initial
severance hearing in December.

¶12 On February 6, 2015, Mother Goose filed a second-amended
petition, which alleged abandonment as an additional ground for
terminating Frank’s rights. The petition also contained two significant
factual misstatements. First, Mother Goose incorrectly alleged that at the
time of the initial filing Rachel did not know of a person claiming rights to
legal custody, physical custody, or visitation with E.E. when, in fact, Rachel
knew Frank was making such claims. Second, Mother Goose falsely stated
that the birth father was unknown and that Frank “may” be the father
when, in fact, biological paternity had been confirmed by DNA testing in
October.

¶13 Frank was present each day of the severance adjudication
hearing, which took place over six days from February until April 2015.
Following the hearing, the juvenile court severed Frank’s parental rights,
after finding his failure to register with the putative fathers registry as the
sole statutory ground and further finding that severance was in E.E.’s best
interests.

¶14 The court found that the requirement of timely registration
with the putative fathers registry applied, and that Frank had not registered
despite having had the ability to do so “notwithstanding [Rachel’s]
fraudulent practices.” The court also found that Mother Goose failed to
establish abandonment and that Rachel’s conduct was deceitful and
designed to prevent Frank from asserting his parental rights.

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¶15 The court of appeals affirmed in a split decision. Frank R. v.
Mother Goose Adoptions, 239 Ariz. 184, 203 ¶ 65 (App. 2016). It reviewed de
novo the juvenile court’s interpretation and application of A.R.S.
§ 8-533(B)(6), concluding that the juvenile court had correctly applied the
statute. Id. at 190 ¶ 22, 203 ¶ 65. The court of appeals reasoned that the
primary deception had already occurred by the time the thirty-day period
commenced and, like the juvenile court, noted that Frank had the ability to
register notwithstanding Rachel’s fraudulent conduct and, on his lawyer’s
advice, chose not to do so. Id. at 199 ¶ 48. The dissenting judge asserted
that, “under all the circumstances of this case, Frank’s failure to file a
superfluous notice of paternity pursuant to § 8-106.01 should not constitute
grounds for terminating his parental rights.” Id. at 205 ¶ 73 (Eckerstrom,
C.J., dissenting).

¶16 We granted review to determine whether compliance with
A.R.S. § 8-106.01 may be excused, allowing the father to avoid severance
under A.R.S. § 8-533(B)(6). We exercise jurisdiction pursuant to article 6,
section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II. DISCUSSION

¶17 We review the juvenile court’s order terminating Frank’s
parental rights for an abuse of discretion. Demetrius L. v. Joshlynn F.,
239 Ariz. 1, 3 ¶ 9 (2016); In re Pima Cty. Juvenile Severance Action No.
S-114487, 179 Ariz. 86, 100–01 (1994). Questions of law and statutory
interpretation are reviewed de novo. David C. v. Alexis S., 240 Ariz. 53, 55
¶ 8 (2016).

A. Arizona’s Putative Fathers Registry

¶18 The Arizona putative fathers registry was established in 1994.
See H.B. 2462, 1994 Leg., 2d Reg. Sess. (Ariz. 1994). Codified as A.R.S.
§ 8-106.01, subsection A states in pertinent part:

A person who is seeking paternity, who wants to receive
notice of adoption proceedings and who is the father or claims
to be the father of a child shall 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.

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Under § 8-106.01(B), “[t]he notice of a claim of paternity may be filed before
the birth of the child but shall be filed within thirty days after the birth of
the child.”

¶19 In Lehr v. Robertson, the United States Supreme Court ruled
that New York’s “putative father registry” was a constitutional means of
expediting adoption procedures. 463 U.S. 248, 250, 265 (1983). The Court
suggested that the registry’s creation was prompted by that Court’s
decision in Stanley v. Illinois, 405 U.S. 645 (1972). Robertson, 463 U.S. at 263.
Stanley held that an Illinois law that conclusively presumed every father of
a child born out of wedlock was unfit to have custody of his children was
unconstitutional as a violation of the Equal Protection Clause of the
Fourteenth Amendment. See Stanley, 405 U.S. at 649, 656, 658.

¶20 Arizona’s registry was created, as the juvenile court judge
noted, “to avoid protracted legal disputes between unwed fathers and
potential adoptive parents.” See also Ariz. State Sen. Fact Sheet for H.B.
2462, 41st Leg., 2d Reg. Sess. (Apr. 6, 1994) (stating that the aim of enacting
H.B. 2462 was to “clarify the responsibilities of the birth mother of a child
being placed for adoption and the rights and obligations of a putative father
in the adoption context in the State of Arizona.”); Ariz. State Sen. Minutes
of Comm. on Judiciary, 41st Leg., 2d Reg. Sess. 2 (March 15, 1994)
(statement of Rep. David Eberhart, cosponsor of H.B. 2462) (explaining that
“the bill is necessary to close loopholes in the law to avoid cases such as the
national one involving ‘Baby Jessica’”). At least twenty-five states,
including Arizona, have created putative father registries. The Rights of
Unmarried Fathers, Children’s Bureau, https://www.
childwelfare.gov/systemwide/laws_policies/statutes/putative.cfm. (last
visited Aug. 10, 2017).

¶21 Arizona’s severance statute, A.R.S. § 8-533(B), states in
relevant part:

B. Evidence sufficient to justify the termination of the parent–
child relationship shall include any one of the following, and
in considering any of the following grounds, the court shall
also consider the best interests of the child:

. . . .

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6. That the putative father failed to file a notice of claim of
paternity as prescribed in § 8-106.01.

A.R.S. § 8-533(B)(6). This statute makes failure to file a notice of claim with
the putative fathers registry an independent ground for severance. It is
undisputed that Frank did not file such a claim.

¶22 The policy reasons for the strict deadline are compelling and
were reflected in our case law before creation of the registry. In re Pima Cty.
Juvenile Severance Action No. S-114487 reasoned that prompt finality that
protects the child’s interests in a stable, permanent placement — either with
a biological parent or an adoptive parent — is paramount. 179 Ariz. at 97.
“The law favors rapid placement so that the child can bond with those who
will be the legal parents and not with those from whom the child may be
taken. This sound policy benefits the child, the natural parents, the
prospective adoptive parents, and society.” Id.; see also Lehr, 463 U.S. at 263.

¶23 Both the majority and the dissent below framed the issue in
this case as one of substantial versus strict compliance with § 8-106.01. But
that distinction is irrelevant because Frank does not argue that he complied
with § 8-106.01. Rather, he asserts that he fulfilled the underlying legislative
purpose of § 8-106.01 by filing to establish paternity and contesting the
severance and that any delay in doing so was caused by the misconduct of
the mother and Mother Goose. As stated, the purpose of the putative
fathers registry is to provide the father with an opportunity to claim his
parental rights, to give potential adoptive parents notice of the putative
father’s paternity claim early in the proceedings, and to preclude claims of
paternity made more than thirty days after the child’s birth. See Fact Sheet
for H.B. 2462. Because Frank’s actions made the other parties aware of his
intent to assert his parental rights, he argues that the legislature could not
have intended that he “perform a futile and superfluous act” by also filing
with the putative fathers registry to preserve his right to parent. As a
corollary, Frank argues that he should be excused from complying with
§ 8-106.01 because of the misconduct by Rachel and Mother Goose.

¶24 Arizona’s registry reflects our legislature’s attempt to
appropriately balance the interests of the child and the constitutional rights
of parents. Ariz. State Sen. Fact Sheet for S.B. 1287, 45th Leg., 2d Reg. Sess.
(May 15, 2002). Section 8-106.01 provides a bright-line deadline for

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registration and establishes a clear date after which an adoption is final and
the child’s placement with his or her new family is permanent. The statute
recognizes the putative father’s interest in establishing paternity and
having a role in his child’s life and weighs it against the child’s interest in
having a stable and permanent home and not being removed from adoptive
parents with whom the child has bonded. Section 8-106.01 also protects the
interest of adoptive parents in the finality of the adoption and assures
prospective adoptive parents that a final order of adoption is likely to
remain final. Similarly, to ensure compliance with its strict timeline for
asserting paternity, the legislature made failure to comply with § 8-106.01 a
ground for severance in § 8-533(B)(6).

¶25 We agree with the court of appeals here that “creating a fact-
based excuse for [non]compliance with the [registry] statute” is not
consistent with the legislature’s intent in enacting § 8-533(B)(6). Frank R.,
239 Ariz. at 200 ¶ 50. Although requiring compliance with the statute may
sometimes result in harsh outcomes, requiring courts to make an
individualized, post-adoption determination of whether the father’s
conduct reasonably complied with the statute’s purpose would undermine
legislative intent and the finality of adoptions. See Beltran v. Allan, 926 P.2d
892, 897 (Utah App. 1996) (citing Wells v. Children’s Aid Soc’y, 681 P.2d 199,
208 (Utah 1984) (holding analysis of whether father had “reasonable
opportunity” in each individual adoption case to comply with statutory
requirements “would frustrate the statute’s purpose to facilitate secure
adoptions by early clarification of status”), abrogated on other grounds by In
re Adoption of J.S., 358 P.3d 1009, 1024 (Utah 2014)); see also Heidbreder v.
Carton, 645 N.W.2d 355, 369–70 (Minn. 2002) (reasoning that the Minnesota
Legislature intended strict compliance with the Fathers’ Adoption Registry
under its statute because creating a substantial-compliance exception when
father missed the deadline by one day would undermine the goal of
securing permanent and stable adoptive placements).

¶26 In Lehr, the United States Supreme Court noted that the state’s
legitimate interests in expeditious permanency “justify a trial judge’s
determination to require all interested parties to adhere precisely to the
procedural requirements of the statute.” 463 U.S. at 265. As the court of
appeals here reasoned, “[N]othing in § 8-533(B)(6) states or even suggests
that filing a paternity action, whether in Arizona or another state, takes the
place of the putative father’s obligation to file a notice under the putative
fathers registry.” Frank R., 239 Ariz. at 201 ¶ 54. The statute must be

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applied as written; to hold otherwise would directly contradict the plain
language of § 8-533(B)(6). Because Frank did not timely register as a
putative father after he had the opportunity to do so, he did not comply
with the statute. Neither filing notice of a claim of paternity nor contesting
the severance action excuses a putative father’s failure to register for
purposes of § 8-533(B)(6).

¶27 Frank cites our opinion in David C. as support for his position,
arguing that because he met the purpose of § 8-106.01, we should excuse
his failure to comply with its express terms. Frank’s reliance on David C. is
misplaced, however, as that case is factually distinguishable. We stated in
David C. that “the registry requirement in A.R.S. § 8–106.01 supplements
but does not supplant the provisions of the adoption statute, A.R.S.
§ 8-106.” David C., 240 Ariz. at 57 ¶ 22. Accordingly, a timely served
paternity action preserved the father’s right to notice of the adoption
hearing and required his consent to an adoption, even though he failed to
register. Id. at 57 ¶ 18, 58 ¶ 24.

¶28 Unlike David C., this is a severance action, not an adoption
action, and Frank’s rights were not terminated for failing to timely file a
paternity action. Rather, Frank’s rights were terminated under
§ 8-533(B)(6) on the independent ground that he failed to register with the
putative fathers registry as § 8-106.01 requires.

¶29 Although both address parental rights, David C. and this case
are distinguishable because they concern different statutes. In David C., we
held that “[b]ecause Father timely filed and served a paternity action in
compliance with A.R.S. § 8-106(J) . . . he preserved his right to establish
paternity despite his failure to strictly comply with the putative father
registration requirement.” 240 Ariz. at 54 ¶ 1. In that case, we granted
review “to consider the interaction between A.R.S. §§ 8-106(G) and
8-106.01(E).” Id. at 55 ¶ 7. Section 8-106 does not require compliance with
§ 8-106.01 to maintain a paternity action. See A.R.S. § 8-106. Thus, the fact
that the father in David C. never filed a claim of paternity with the putative
fathers registry had no bearing on his compliance with § 8-106.

¶30 Here, on the other hand, § 8-106.01 specifically requires the
father to file a notice of claim of paternity, which Frank failed to do, despite
appearing in the Arizona severance case and having counsel appointed.
Frank’s rights were not terminated for failure to timely file a paternity

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action under § 8-106(J); rather, as noted above, they were terminated on the
independent ground that he failed to register with the putative fathers
registry under § 8-106.01, and § 8-533(B)(6) identifies such a failure as a
ground for severance. Even if we assume Frank’s California paternity
action satisfies the § 8-106(J) requirement, he was still required to register
with the putative fathers registry and failed to do so. Had Frank timely and
properly registered with the putative fathers registry, this case would have
a different outcome.

B. Due Process Considerations

¶31 Frank asks this Court to impute a requirement for proper
service of notice under § 8-106(G) to commence the time for registering as a
putative father based on the entirety of the statutory scheme.
Section 8-106(G) states in relevant part, “Notice shall be served on each
potential father as provided for the service of process in civil actions . . . .”
In the adoption context, a putative father who properly files a notice of
claim of paternity is treated as a potential father under § 8-106(F) and is
entitled to be served with notice of the planned adoption of his child
pursuant to § 8-106(G); see David C., 240 Ariz. at 57–58 ¶ 22.

¶32 In this case, the required § 8-106(G) notice was never served
on Frank due to both Rachel and Mother Goose’s misrepresentations. Yet
Frank had actual notice that Mother Goose sought to sever his parental
rights from the time he received the first-amended severance petition,
which alleged his failure to register with the putative fathers registry as a
ground for severance under § 8-533(B)(6). Cf. State v. Lua, 237 Ariz. 301, 306
¶ 17 (2015) (reasoning that defendant was not actually prejudiced by a new
or amended charge because defendant had actual notice of the charge).
Thus, because Frank had actual notice of the proceedings and an
opportunity to timely register, his procedural due process rights were not
violated. As the juvenile court reasoned, “[T]he time limit [in which to
register] began to run no later than October 8, 2014 when he was appointed
Arizona counsel. As such, he was required to register no later than
November 7, 2014” — giving Frank leeway to register a full six months after
E.E.’s birth.

¶33 We agree with the court of appeals and the juvenile court that
this case can only have an unsettling outcome. We also agree with both
courts that this case raises serious concerns about the conduct of Mother

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Goose and its counsel in the superior court. Our decision has the practical
effect of depriving a father, who at least since E.E.’s birth has asserted his
desire to parent his child, of any legal rights to his child.

¶34 The juvenile court record reflects that for almost the entire
term of the pregnancy, Frank knew that Rachel was pregnant and that he
was probably the father. The record also reflects the juvenile court’s
findings that Frank took a wait-and-see attitude rather than providing
prenatal support to Rachel and his unborn child. But Frank’s conduct
before the child’s birth does not excuse Rachel’s conduct. Rachel concealed
her travel to Arizona, E.E.’s birth in Arizona, and her intention to place the
child for adoption. She did so to prevent Frank from asserting paternity
and seeking custody of the child. As the court of appeals aptly observed,
Mother Goose made “blatant misrepresentations” and “materially
inaccurate allegations” to the juvenile court to facilitate Rachel’s
misconduct. Frank R., 239 Ariz. at 202–03 ¶ 62.

¶35 We deplore the conduct of Rachel and Mother Goose. We
recognize that a mother who seeks to deceive the father of her child and the
adoption agency that assists her may read this opinion as tacitly permitting
such conduct. But we agree with both the court of appeals and the juvenile
court that such misconduct — when the mother intentionally deceives the
father — would be futile as long as the father “registers with the putative
father [sic] registry within thirty days of prompt discovery of the Arizona
birth, which would eliminate § 8-533(B)(6) as a ground for termination of a
father’s rights.” Id. at 203 ¶ 65 (internal quotation marks omitted).

¶36 In its order granting severance, the juvenile court gave
“special and presumptive weight” to Frank’s desire to raise his child. The
court also considered other factors, including the child’s need for a “loving,
permanent and continuous home and family life during his childhood”
with the only parents this child has ever known. The juvenile court found
that severance was in the child’s best interest. That determination was
upheld by the court of appeals and we declined review of that issue.
Affirming severance of Frank’s parental rights under the facts of this case
is a harsh result. But separating the child from the adoptive parents would
likewise be a harsh result. Based on the clear language of § 8-533(B)(6), we
will not disregard the child’s best interests to punish Rachel and Mother
Goose for their unconscionable behavior.

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III. CONCLUSION

¶37 Frank’s failure to register as required by § 8-106.01
constituted a statutory ground for severance under § 8-533(B)(6). We affirm
the juvenile court’s order terminating Frank’s parental rights and vacate
paragraphs 28–56 of the court of appeals’ opinion. The court of appeals’
opinion is otherwise affirmed, including its award of sanctions against
Mother Goose and its counsel.

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