Butler v. Larosk

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

CORY BUTLER, Petitioner/Appellant,

v.

AUDRY LAROSK, Respondent/Appellee.

No. 1 CA-CV 23-0576 FC
FILED 06-27-2024

Appeal from the Superior Court in Maricopa County
No. FC2023-003064
The Honorable Robert Ian Brooks, Judge

AFFIRMED

COUNSEL

Righi Fitch Law Group PLLC, Phoenix
By Elizabeth S. Fitch, Benjamin L. Hodgson
Counsel for Petitioner/Appellant

Stuart & Blackwell, PLLC, Chandler
By Cory A. Stuart
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined.

J A C O B S, Judge:

¶1 Cory Butler (“Potential Father”) appeals the superior court’s
dismissal of his untimely petition to establish paternity, claiming his lawyer
rendered ineffective assistance of counsel by failing to file and serve it
timely, thus denying him due process. We affirm because A.R.S. § 8-
106(G)(3) bars his untimely filing, and because the processes here did not
lack fundamental fairness to Potential Father, given his lack of action with
notice of the imminent expiration of his time to file a petition.

FACTS AND PROCEDURAL HISTORY

¶2 On April 14, 2023, Audry Larosk (“Mother”) served Potential
Father with a notice (“the Notice”) that she planned to place Child up for
adoption. The Notice informed Potential Father that to withhold consent
to the adoption, he had to “initiate paternity proceedings under title 25,
chapter 6, article 1, Arizona Revised Statutes, and serve the Mother within
thirty days after completion of service of this notice.” The Notice likewise
informed Potential Father that if he did “not file a paternity action under
title 25, chapter 6, article 1, Arizona Revised Statutes, and d[id] not serve
the Mother within thirty days after completion of service of th[e Notice] and
pursue the action to judgment,” he could not “bring or maintain any action
to assert any interest in” Child.

¶3 Potential Father hired counsel on May 8, 2023, twenty-four
days after Mother served the Notice. The record reflects no actions by
Potential Father or communications from him to counsel after May 8, 2023.
Neither Potential Father nor his counsel filed or served any paternity action
by May 15, 2023, the thirtieth day after the Notice.

¶4 On May 18, 2023, Potential Father’s counsel unsuccessfully
attempted to file a petition to establish paternity. On May 23, 2023,
Potential Father’s counsel successfully filed a petition. On May 26, 2023,
Potential Father’s counsel served Mother, twelve days after the thirty-day
deadline imposed by A.R.S. § 8-106(G)(3) and set forth in Mother’s Notice.

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¶5 Mother moved to dismiss Potential Father’s petition as
untimely. Potential Father filed a written response, which raised
arguments against the application of A.R.S. § 8-106(G) and (J), but no
argument of ineffective assistance of counsel. The court held oral
argument, at which Potential Father was represented by other counsel.
New counsel argued against the application of A.R.S. § 8-106(G) and (J), but
made no argument of ineffective assistance by previous counsel. After
argument, the court granted Mother’s motion to dismiss, explaining that
Potential Father did not comply with A.R.S. § 8-106(G), and had missed the
thirty-day window to initiate a proceeding and notify Mother of it.

¶6 Potential Father filed a motion to alter or amend the
judgment, claiming he complied with A.R.S. § 8-106.01 and thus, the thirty-
day deadline should have started running from Child’s birth on May 1,
2023, and not April 14, 2023. The court denied these motions. The court
explained that complying with A.R.S. § 8-106.01 does not comply with
A.R.S. § 8-106(G). Potential Father does not raise those arguments in this
court.

¶7 Potential Father timely appealed. We have jurisdiction.
A.R.S. §§ 12-120.21, and 12-2101(A)(1); Ariz. Const. art. 6, § 9.

DISCUSSION

¶8 Potential Father appeals the superior court’s decision
granting Mother’s motion to dismiss his petition for paternity, legal
decision-making and child support, and to terminate Mother’s rights.
Potential Father argues his counsel’s failure to timely file his petition to
initiate paternity proceedings and serve Mother was ineffective assistance
of counsel that violated his rights to due process. We first explain the legal
effect of Potential Father’s undisputed failure to comply with A.R.S. § 8-
106(G), and then consider the merits of his argument that his rights to
fundamental fairness were violated by ineffective assistance of counsel.

I. The Court Did Not Err By Granting Mother’s Motion to Dismiss
Potential Father’s Petition to Initiate Paternity Proceedings, Given
His Undisputed Failure to Comply with A.R.S. § 8-106(G).

¶9 Mother argues that because Potential Father failed to comply
with the thirty-day statutory deadline requirement in A.R.S. § 8-106(G), he
waived his right to notice of hearings concerning Child’s adoption and his
ability to object to adoption or termination of parental rights under A.R.S.
§ 8-106(J). Claiming ineffective assistance of counsel and declining to
engage Mother’s statutory argument, Potential Father concedes he failed to

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comply with A.R.S. § 8-106(G). We review the court’s order granting a
motion to dismiss under Arizona Rules of Family Law Procedure 29(a)(6)
de novo. Cox v. Ponce in and for Cnty. of Maricopa, 251 Ariz. 302, 304 ¶ 7 (2021).
The Arizona Supreme Court has made clear that when a “father fails to
comply with § 8-106(G)’s requirements, § 8-106(J) bars him from bringing
or maintaining any action asserting any interest in the child.” Id. at 305 ¶ 9.

¶10 As Mother argues, this case is like Cox. There, a father filed a
paternity action sixteen days after the statutory thirty-day deadline, while
Potential Father here filed twelve days late. Cox, 251 Ariz. at 304 ¶ 5. There,
as here, counsel’s failings played a leading role. The father in Cox had
counsel who held a mistaken belief that an adoptive couple would “back
out gracefully from the adoption proceedings” in certain circumstances. Id.
at 304 ¶ 3 (cleaned up). There, as here, the father sought relief from the
deadline in A.R.S. § 8-106(G) and the related waivers in A.R.S. § 8-106(J).
Explaining that A.R.S. § 8-106(J) is a statute of repose, our supreme court
rejected that father’s request for relief from it, because “it is not subject to
equitable exceptions.” Id. at 307 ¶ 20. As the court explained, “[t]he 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. at 307 ¶ 19 (citing Frank R. v. Mother
Goose Adoptions, 243 Ariz. 111, 115 ¶ 22 (2017)) (cleaned up).

¶11 We are mindful that Cox predates Royce C. v. Dep’t of Child
Safety, 252 Ariz. 129 (App. 2021), which established the parameters of a
claim of ineffective assistance of counsel in the context of terminating
parental rights. Id. at 136 ¶¶ 16-21. We are also mindful that the father in
Cox raised equitable, and not constitutional, arguments against applying
A.R.S. § 8-106(G) and (J). But Cox makes clear that on these facts, the court
correctly applied these statutes to Potential Father’s attempts to pursue
parental rights through time-barred filings. We next discuss Potential
Father’s argument that, despite these statutes, his federal constitutional
right to due process requires the court to consider his untimely filings.

II. Because Potential Father Had Notice of the Deadline and Interests
at Stake, But Failed to Participate, Dismissing His Petition Did Not
Violate His Rights to Due Process.

A. Legal Standards

¶12 Potential Father relies on Royce C. to argue that his counsel’s
late filing was ineffective assistance of counsel that violated his right to due

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process. We review de novo whether Potential Father’s rights to right to due
process were violated. See Trisha A. v. Dep’t of Child Safety, 247 Ariz. 84, 88
¶ 16 (2019). However, when a party fails to raise an issue in the superior
court, as Potential Father failed to raise ineffective assistance of counsel here
even when represented by other counsel in post-judgment practice, that
waives the argument for appeal. Logan B. v. Dep't of Child Safety, 244 Ariz.
532, 536 ¶ 9 (App. 2018). We may nonetheless exercise our discretion to
address the merits of waived arguments on appeal. Marianne N. v. Dep't of
Child Safety, 243 Ariz. 53, 56 ¶ 13 (2017). Given the importance of the right
at stake, we do so here.

B. Differing Constitutional Protections for Judicially
Determined Fathers and Potential Fathers

¶13 Mother argues Potential Father’s failure to establish paternity
judicially diminishes the strength of his constitutional interest. See David C.
v. Alexis S., 240 Ariz. 53, 56 ¶ 14 (2016) (“A potential father is a man,
identified by the mother in the affidavit, who is or could be the father of the
child, but whose paternity has not been established.”); Juv. Severance Action
No. S-114487, 179 Ariz. 86, 93-94 (1994) (“Although parents with an existing
parental relationship, either in fact or law, are entitled to the highest
constitutional protection, an unwed father must first take steps to establish
a parent-child relationship before he may attain the same protection.”).

¶14 Potential Father argues hiring counsel was a sufficient
assertion of his parental interest to give him “substantial protection under
the due process clause,” analogizing himself to a registrant in a putative
father’s registry. See Frank R. v. Mother Goose Adoptions, 239 Ariz. 184, 192 ¶
27 (App. 2016), affirmed in relevant part, vacated in part, 243 Ariz. 111, 117 ¶
37 (2017). Potential Father argues that even if his interest is not on
constitutional par with that of a judicially determined father, because he
did not actually comply with A.R.S. § 8-106(G), his interest is at least an
“inchoate interest [that] is nonetheless constitutionally protected from
undue interference.” As we next explain, even treating Potential Father as
if he were an adjudicated father and not merely a potential father, we find
actual notice to him requires us to affirm. We thus do not resolve the
parties’ dispute over the degree of constitutional protection owed to
Potential Father.

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C. Potential Father’s Right to Fundamental Fairness Was Not
Violated Because He Had Actual Notice His Rights Were
Subject to Imminent Termination.

¶15 Mother’s Notice to Potential Father defeats his claim of
ineffective assistance of counsel. The Arizona Supreme Court has made
clear that when a parent has actual notice of an intention to sever his
parental rights – even in the absence of a notice under A.R.S. § 8-106(G),
such as Mother served here – the parent’s constitutional right to due process
is not violated when they fail to act despite that notice. Frank R., 243 Ariz.
at 117 ¶ 32 (“Thus, because Frank had actual notice of the proceedings and
an opportunity to timely register, his procedural due process rights were
not violated.”); id. at ¶ 33 (referring to Frank as “a father”); Frank R., 239
Ariz. at 189 ¶ 17 (noting DNA testing confirmed Frank was biological
father), affirmed in relevant part, 243 Ariz. at 117 ¶ 37.

¶16 Here, Potential Father had the Notice, which told him he had
to act by May 15, 2023, or his parental rights would be extinguished. A.R.S.
§ 8-106(G), (J). Potential Father has not questioned the constitutional
sufficiency of the Notice. Despite knowing what was at stake and the
deadline, Potential Father took no further steps after retaining counsel on
May 8, 2023. The record reflects no further communication between
Potential Father and his counsel by May 15, 2023, and no further steps taken
by Potential Father personally despite his knowledge. Instead, Potential
Father’s wife (not Potential Father) approved counsel’s proposed filing on
May 16, 2023, when it was already too late to serve Mother. Counsel’s
failure to file on May 18, 2023 is irrelevant – it was already too late to serve
Mother. Potential Father’s actual notice and his lack of timely action mean
his right to due process was not violated. Frank R., 243 Ariz. at 117 ¶ 32.

¶17 Royce C. supports this outcome. It tells us not to “look first to
whether counsel’s conduct fell below professional norms,” but rather, to the
contours of the proceeding at issue, to determine whether it adequately
protected Potential Father “against arbitrary action of [the] government.”
252 Ariz. at 136 ¶ 20. We emphasize Potential Father’s notice under A.R.S.
§ 8-106(G), and his lack of any challenge to the constitutional sufficiency of
notice to him, because Potential Father’s own opportunity to react to the
Notice is the proceeding at issue. It is Potential Father’s own inaction we
analyze, in a proceeding where he was not threatened by any action of
government, arbitrary or otherwise. Potential Father was thus not
subjected to the “undue interference” Potential Father correctly argues he
is protected against by the constitution. See Juv. Severance Action No. S-
114487, 179 Ariz. at 94 (explaining “the state may not unduly interfere with

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an unwed father’s ability to develop [a] relationship with his child.”).
Given the constitutional sufficiency of the Notice itself, Potential Father’s
failure to respond, which is largely attributable to him personally, does not
trigger what we define as “an extraordinary remedy, unavailable in all but
the most egregious cases.” 252 Ariz. at 138 ¶ 26.

¶18 Our unpublished decision in In re L.C. – one of a handful of
decisions that have considered claims of ineffective assistance of counsel in
the context of parental rights – reinforces our analysis. See No. 2 CA-JV
2022-0041, 2022 WL 3354005 (Ariz. App. Aug. 15, 2022) (mem. decision).
There, we rejected a father’s claim of ineffective assistance of counsel when
he failed to attend a juvenile court hearing of which he had notice, and
which he could have attended of his own accord, when his counsel failed
to prompt him to do so. In re L.C., 2022 WL 3354005 *3 ¶ 13. Because that
father had knowledge and the opportunity to attend but did not do so, his
nonattendance did not “undermine[] the fundamental fairness of the
proceeding.” Id. So it is here – Potential Father knew both before and after
he hired counsel that he needed to file a petition and serve it on Mother by
May 15, 2023, but failed to do so. Thus, terminating Potential Father’s rights
through that process did not deny him fundamental fairness.

CONCLUSION

¶19 For these reasons, we affirm the court’s decision to grant
Mother’s motion to dismiss.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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