Robertson v. Bacolas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL ALLEN ROBERTSON, Plaintiff/Appellant,

v.

AMANDA JANE BACOLAS, et al., Defendants/Appellees.

No. 1 CA-CV 22-0734
FILED 11-21-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-006284
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Michael Allen Robertson, Scottsdale
Plaintiff/Appellant

Jaburg & Wilk PC, Phoenix
By Corrinne R. Viola, Katharine Myers
Counsel for Defendants/Appellees
 ROBERTSON v. BACOLAS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Angela K. Paton joined.

C A T L E T T, Judge:

¶1 Michael Allen Robertson (“Robertson”) brought several
claims under 42 U.S.C. § 1983 (“§ 1983”) against his two adult daughters.
Robertson alleged they violated various Arizona statutes and his
constitutional rights during prior juvenile court proceedings. The superior
court dismissed Robertson’s complaint for failure to state a claim. We
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Amanda and Jennifer Bacolas (collectively, the “Bacolas”) are
Robertson’s adult children from his first marriage. In 2018, the Department
of Child Safety (the “Department”) initiated dependency, and later
termination, proceedings against Robertson regarding two minor children
from his second marriage. The Bacolas testified against Robertson during
those proceedings.

¶3 In 2020, Robertson consented to termination of his parental
rights as to his two minor children. The juvenile court terminated
Robertson’s rights and vested legal custody with the Department. One of
the Bacolas adopted the children, and the juvenile court dismissed the
action.

¶4 In 2022, Robertson filed a complaint, which he later amended,
in superior court against the Bacolas. The amended complaint alleged the
Bacolas falsely testified as to his parental fitness during the termination
proceedings, thereby committing perjury. Robertson claimed the Bacolas
falsely testified “to receive the government benefits of foster placement and
adoptions of [Robertson’s] minor children.” Robertson maintained that the
Bacolas “perpetrated an adoption fraud against [him] . . . with [the
Department.]” Robertson also claimed that the Bacolas stole his minor
children, violating his “property interests” in them. Lastly, Robertson
claimed that the Bacolas abused him emotionally, as a vulnerable adult,

2
 ROBERTSON v. BACOLAS, et al.
Decision of the Court

under A.R.S. § 13-3623. Although the seven counts in Robertson’s amended
complaint relied on a variety of constitutional and statutory provisions, at
least six of those claims ultimately sought relief under § 1983.

¶5 Robertson sought compensatory damages and declaratory
relief. But he also requested that the superior court vacate the juvenile
court’s orders terminating his parental rights and finalizing the adoption of
his children.

¶6 The Bacolas filed a motion to dismiss under Arizona Rule of
Civil Procedure 12(b)(6). The superior court granted the Bacolas’ motion,
concluding none of Robertson’s seven claims could proceed because none
stated a valid claim for relief.

¶7 Robertson timely appealed. We have jurisdiction. See A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶8 Robertson challenges the dismissal of his seven claims. We
review de novo the dismissal of a complaint under Arizona Rule of Civil
Procedure 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7 (2012).
Dismissal under that rule is appropriate if “as a matter of law . . . plaintiff[]
would not be entitled to relief under any interpretation of the facts
susceptible of proof.” Fid. Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224 ¶ 4
(1998). We assume the truth of all well-pled factual allegations; conclusory
statements are insufficient. Coleman, 230 Ariz. at 356 ¶ 9.

I. § 1983 Claim

A. Color of State Law

¶9 To state a claim under § 1983, a plaintiff must allege a person
acting under color of state law violated his federal rights. 42 U.S.C. § 1983;
West v. Atkins, 487 U.S. 42, 48 (1988). To act under color of state law, one
must exercise power “possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” Id.
at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also
Johnson v. McDonald, 197 Ariz. 155, 161 ¶ 25 (App. 1999) (quotations
omitted) (“A private person acts under color of state law when involved in
a conspiracy with state officials to deprive someone of federal rights.”).

¶10 Robertson alleged the Bacolas “perpetrated an adoption fraud
against [Robertson] . . . with [the Department] . . . providing false,

3
 ROBERTSON v. BACOLAS, et al.
Decision of the Court

fraudulent, and highly impeachable testimony that [Robertson] was an
abusive and unfit parent during [the Bacolas’] childhood[s].” But the
Bacolas were, at all relevant times, private citizens who never purported to
act on the government’s behalf. Robertson cannot avoid dismissal by
simply asserting that the “Bacolas acted under the color of the laws of the
State of Arizona,” without a factual basis to back up the allegation. See BLK
III, LLC v. Skelton, 252 Ariz. 583, 588 ¶ 15 (App. 2022) (explaining that
“conclusory statements are insufficient to state a claim upon which relief
can be granted”). Putting conclusory allegations aside, the allegations in
Robertson’s amended complaint, even if assumed true, do not establish that
the Bacolas were “clothed with the authority of state law.” West, 487 U.S.
at 55.

¶11 Relying on Dennis v. Sparks, 449 U.S. 24 (1980), Robertson
argues that the Bacolas acted under color of state law by conspiring with
the Department to prevent Robertson’s reunification with his minor
children. As proof of that conspiracy, Robertson points to the Department’s
use of the Bacolas’ allegedly false and “significantly encouraged” testimony
during the termination proceedings. But testifying during a judicial
proceeding—even falsely—does not cloak one with state authority. See
Briscoe v. LaHue, 460 U.S. 325, 329–41 (1983) (noting that 42 U.S.C. § 1983
does not allow recovery of damages against a private party for testimony
in a judicial proceeding). And none of the other actions Robertson
attributes to the Bacolas was sufficient—individually or in combination—
to satisfy § 1983’s “under the color of state law” requirement. Cf. Wideman
v. Garcia, 382 Fed. Appx. 741, 742 (10th Cir. 2010) (concluding defendant’s
decision to file family-law actions against plaintiff could not “be plausibly
read as a conspiracy with [state] officials”).

B. Violation of Federal Rights

¶12 Robertson was also required to allege that the Bacolas
violated his federal rights. See West, 487 U.S. at 48. Robertson alleges a
violation of his parental and due process rights based on what he claims
was false testimony. To be sure, one’s right to raise one’s children has found
protection in the Fourteenth Amendment’s Due Process and Equal
Protection Clauses. See Stanley v. Illinois, 405 U.S. 645, 651 (1972). But
Robertson’s claims fail because Robertson relinquished his parental rights
to the Department and consented to adoption. Arizona’s parental-rights
termination statute, A.R.S. § 8-533(B)(7), provides that parental consent is
one ground for termination. And once a parent’s rights are terminated, the
parent is divested of “all legal rights, privileges, duties and obligations[.]”
A.R.S. § 8-539.

4
 ROBERTSON v. BACOLAS, et al.
Decision of the Court

¶13 Further, for a parent’s rights to be terminated, he or she must
be provided with “fundamentally fair procedures that satisfy due process
requirements.” Jessie D. v. Dep’t Child Safety, 251 Ariz. 574, 579 ¶ 8 (2021)
(quotations omitted). Arizona’s termination statute satisfies due process
because the statutory grounds for termination are “synonymous with
parental unfitness” and if at least one of the grounds set out in the statute
is found, including consent, parental termination is justified and
constitutional. Jessie D., 251 Ariz. at 579 ¶ 8. Thus, Robertson did not
validly plead that the Bacolas violated his parental or due process rights, or
any other federal right.

II. Collateral Attack

¶14 In the amended complaint, Robertson asserts that he “self-
severed” his parental rights under duress, at least in part, because of “a
character assassination” by the Bacolas. Arizona law allows a juvenile court
judgment to be set aside based on duress. See Navajo Cnty. Juv. Action No.
JA-691, 171 Ariz. 369, 372 (App. 1991). But Arizona law also provides that
“[a]fter one year from the date the adoption decree is entered, any
irregularity in the proceeding shall be deemed cured and the validity of the
decree shall not thereafter be subject to attack on any such ground in any
collateral or direct proceeding.” A.R.S. § 8-123. Arizona courts also
recognize a broader principle: “unless a judgment is void” for lack of
jurisdiction, “the judgment cannot be collaterally attacked even if it is
‘erroneous or wrong.’” Duncan v. Progressive Preferred Ins. Co. ex rel. Est. of
Pop, 228 Ariz. 3, 7 ¶ 13 (App. 2011).

¶15 The 2020 termination and adoption orders remain valid, final
orders, which Robertson did not timely challenge or appeal. The juvenile
court concluded that Robertson knowingly, intelligently, and voluntarily
consented to place the children up for adoption, and that Robertson did not
do so based on fraud, coercion, or duress. Robertson’s allegations in the
amended complaint collaterally attack the juvenile court’s orders, including
the court’s conclusion that Robertson did not involuntarily consent to
adoption. And Robertson’s allegations are, at least in part, aimed at
undoing the juvenile court’s adoption orders, which Robertson made clear
when he requested that the superior court vacate those orders and return
the children to him. Yet the time for Robertson to challenge the validity of
the juvenile court’s orders long ago expired, and so his attempt to

5
 ROBERTSON v. BACOLAS, et al.
Decision of the Court

collaterally attack those orders anew—by alleging duress and false
testimony in this action—fails as a matter of law.1

CONCLUSION

¶16 We affirm. We award costs to the Bacolas upon compliance
with Arizona Rule of Civil Appellate Procedure 21. In our discretion, we
deny their request for attorneys’ fees.

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

1 Although Robertson clarified on appeal that he asserted the first six
counts of his amended complaint under § 1983, it is not clear whether he
did so for the seventh count. To the extent Robertson asserted the seventh
count under § 1983, it fails for the same reasons as the first six counts. If
Robertson intended to assert a stand-alone claim for vulnerable adult abuse
under A.R.S. § 13-3623, the claim fails because that statute is in the criminal
code and Robertson does not explain how the statute creates a private right
of action. See Phx. Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 294
(App. 1994) (“The general rule is that ‘no private cause of action should be
inferred based on a criminal statute[.]’”).

6