Marco C. v. Sean C. & Colleen C.

FILED BY CLERK
MAY -5 2008
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO

MARCO C., )
) 2 CA-JV 2007-0096
Appellant, ) DEPARTMENT A
)
v. ) OPINION
)
SEAN C. and COLLEEN C., )
)
Appellees. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. B 19290

Honorable Theodore J. Knuck, Judge

AFFIRMED

The Shanker Law Firm, PLC
By Tamera C. Shanker Tempe
Attorney for Appellant

Steven M. Ellsworth, PC
By Steven M. Ellsworth Mesa
Attorney for Appellees

H O W A R D, Presiding Judge.

¶1 Appellant Marco C., the putative father of Baby G., challenges the juvenile

court’s order in the underlying adoption proceeding declaring unnecessary Marco’s consent
to the child’s adoption by appellees Sean C. and Colleen C. and permitting the adoption to

proceed over his objection. We conclude the court correctly found Marco failed to comply

with the requirements of A.R.S. § 8-106.01 and thus did not err.

¶2 Sylvia G. gave birth to Baby G. on May 14, 2007. Before the child was born,

Sylvia and Marco had communicated with one another through electronic mail (email).

Based on those emails, at least as early as March 2007, Sylvia and Marco had acknowledged

Sylvia’s pregnancy and both believed Marco was likely the biological father of the child

Sylvia was carrying. Nevertheless, on May 17, 2007, Sylvia signed an affidavit in which she

avowed her husband Benjamin was the biological father of Baby G. That same day, Sylvia

and Benjamin executed consents to place Baby G. for adoption, relinquishing their parental

rights.

¶3 On June 14, 2007, thirty-one days after Baby G. was born, Marco filed a

notice of claim of paternity with the Arizona Department of Health Services, claiming to be

Baby G.’s biological father. On August 22, Sean and Colleen served Marco with a Potential

Father Notice, as required by A.R.S. § 8-106(G). Marco filed a petition to establish

paternity of Baby G. in Maricopa County Superior Court on September 19. On October 5,

Sean and Colleen filed a petition to adopt Baby G. in Pima County Juvenile Court. They

alleged, inter alia, that Marco had failed to comply with A.R.S. § 8-106(G)(3) by not serving

Sylvia with a copy of the paternity action within thirty days of the date he had been served

with the notice to potential father. Sean and Colleen then filed a motion for an order

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declaring that Marco’s consent to their adoption of Baby G. was unnecessary for two

reasons: Marco had failed to file the notice of claim of paternity within thirty days of Baby

G.’s birth as required by § 8-106.01(B), and he had failed to timely effect service of the

paternity complaint in compliance with § 8-106(G)(3) and (J). Marco filed a combined

notice of intent to contest the adoption of Baby G., a motion to vacate the adoption hearing

that had been set on the petition, and a response to Sean and Colleen’s motion. The

juvenile court refused to vacate or delay the adoption hearing and granted Sean and

Colleen’s motion after a hearing, finding Marco’s consent to Baby G.’s adoption was

unnecessary. This appeal followed.

¶4 We will not disturb the juvenile court’s order in an adoption proceeding

absent an abuse of discretion. See Leslie C. v. Maricopa County Juv. Court, 193 Ariz. 134,

135, 971 P.2d 181, 182 (App. 1997). “No abuse exists if evidence in the record supports

the court’s ruling.” Id. To soundly exercise its discretion, the court must also correctly

apply the law. See Allen v. Chon-Lopez, 214 Ariz. 361, ¶ 9, 153 P.3d 382, 385 (App.

2007).

¶5 Section 8-106.01(A) requires a putative father who wishes to receive notice

of and participate in adoption proceedings relating to a child he believes is his to “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.”

Section 8-106.01(B) permits a putative father to file the notice before the child is born but

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requires that it be filed “within thirty days after the birth of the child.” If a putative father

fails to file the notice claiming paternity as required by the statute, he “waives his right to

be notified of any judicial hearing regarding the child’s adoption[,] and his consent to the

adoption is not required, unless he proves, by clear and convincing evidence, both . . . [that

i]t was not possible for him to file a notice of a claim of paternity” within the required period

and that “[h]e filed a notice of a claim of paternity within thirty days after it became possible

for him to file.” § 8-106.01(E); see also § 8-106 (providing circumstances under which

father’s consent required before child may be adopted).

¶6 Marco does not dispute that he filed his notice on the thirty-first day after

Baby G.’s birth. In a cursory fashion, he contends that §§ 8-106 and 8-106.01 “do not

afford an unwed father much protection, particularly in the case of newborn adoptions,”

implying the statutes are constitutionally infirm. Because Marco cites no authority for these

propositions and fails to sufficiently develop this argument on appeal, we need not consider

it. See Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, ¶ 22, 158 P.3d 225, 231 (App.

2007). Moreover, because Marco never raised this precise issue below, we may refuse to

consider it. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 7, 119 P.3d 467, 471 (App.

2005). But this court may, in its discretion, address constitutional arguments raised for the

first time on appeal. See State v. Rodriguez, 205 Ariz. 392, ¶ 27, 71 P.3d 919, 927 (App.

2003). We choose to address Marco’s cursory constitutional challenge to Arizona’s putative

father registry and the adoption statute, as the latter relates to putative fathers.

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¶7 In Lehr v. Robertson, 463 U.S. 248, 264-65 (1983), the United States

Supreme Court found New York’s paternity registry an appropriate means of accommodating

and protecting the existing, yet undeveloped rights of putative fathers. The Court stated,

“Since the New York statutes adequately protected [the putative father’s] inchoate interest

in establishing a relationship with [the child], we find no merit in the claim that his

constitutional rights were offended because the family court strictly complied with the notice

provisions of the statute.” Id. at 265. Thus, we find without merit Marco’s suggestion that,

because he demonstrated his desire to assert his rights and establish a relationship with Baby

G. by filing the notice with the registry and by pursuing the paternity action, he should be

excused from complying with the terms of the statute or that strict application of its

provisions here was unconstitutional.

¶8 Marco also contends the juvenile court erred when it concluded his consent

to the adoption was unnecessary, insisting there was clear and convincing evidence that he

fell within the exceptions under § 8-106.01(E).1 We disagree.

¶9 “When a statute is clear and unambiguous, we apply its plain language and

need not engage in any other means of statutory interpretation.” Kent K. v. Bobby M., 210

Ariz. 279, ¶ 14, 110 P.3d 1013, 1017 (2005); see also Bilke v. State, 206 Ariz. 462, ¶ 11,

1
In his reply brief, Marco argues the statute provides no guidance to courts for
determining what constitutes clear and convincing evidence for purposes of § 8-106.01(E).
We will not address issues raised for the first time in a reply brief. Ariz. Dep’t of Revenue
v. Ormond Builders, Inc., 216 Ariz. 379, n.7, 166 P.3d 934, 940 n.7 (App. 2007).

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80 P.3d 269, 271 (2003). Section 8-106.01(B) clearly and unambiguously sets a time limit

that can be excused only under the limited circumstances prescribed in § 8-106.01(E). The

legislature, therefore, has balanced the policy considerations involved and concluded that

the theoretical ten-month period between a child’s conception and thirty days after the

child’s birth gives the father an adequate opportunity to file his notice. It has also chosen

to severely limit the circumstances in which this period may be extended. Although the

result may be harsh when a father misses this deadline, we do not second-guess the

legislature’s policy decision. See Diana H. v. Rubin, 217 Ariz. 131, ¶ 35, 171 P.3d 200,

208 (App. 2007).

¶10 Cases from other jurisdictions have strictly applied similar statutes.2 See, e.g.,

Heidbreder v. Carton, 645 N.W.2d 355, 369-70 (Minn. 2002) (mother’s allegedly

fraudulent concealment of her location and misrepresentation of intent did not excuse

putative father’s failure to register timely with father’s adoption registry); Hylland v. Doe,

867 P.2d 551, 553, 556-57 (Or. Ct. App. 1994) (concluding trial court correctly rejected

2
Marco does not expressly argue that substantial rather than strict compliance with
§ 8-106.01 should be sufficient and that he substantially complied with the provision, nor
does he cite any authority supporting such a standard; therefore, we need not consider it.
We note, however, that whether substantial compliance applies is a question of legislative
intent. See Aesthetic Prop. Maint. Inc. v. Capitol Indem. Corp., 183 Ariz. 74, 76, 900 P.2d
1210, 1212 (1995) (whether rule of strict or substantial compliance with statute applies is
question of legislative intent); Wenc v. Sierra Vista Unified Sch. Dist. No. 68, 210 Ariz.
183, ¶ 10, 108 P.3d 962, 965 (App. 2005); Town of Miami v. City of Globe, 195 Ariz. 176,
¶ 14, 985 P.2d 1035, 1040 (App. 1998); cf. Deer Valley Unified Sch. Dist. No. 97 v.
Houser, 214 Ariz. 293, ¶ 6, 152 P.3d 490, 492 (2007) (statutory time limit must be strictly
met).

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adoption challenge by biological father who failed to comply timely with putative-father-

registry statute but had filed paternity action in another state within days of child’s birth);

Sanchez v. L.D.S. Social Servs., 680 P.2d 753, 755 (Utah 1984) (rejecting biological

father’s challenge to adoption and finding “of no constitutional importance that [father]

came close to complying with” Utah’s putative father registry); In re Adoption of B.B.D.,

984 P.2d 967, ¶¶ 2-6, 12 (Utah 1999) (holding unmarried, nonresident, biological father lost

parental right to or interest in child born in Utah by failing to register with putative-father

registry, notwithstanding attempts to register with Washington’s putative-father registry);

Beltran v. Allan, 926 P.2d 892, 895-96, 898 (Utah Ct. App. 1996) (finding trial court

properly entered summary judgment against biological father who failed to register with

Utah’s putative-father registry to obtain custody of child born in Utah despite his having

filed paternity action in California weeks before child’s birth). Accordingly, unless Marco’s

situation falls within the narrow statutory exception, he cannot be excused from failing to

file the notice within the prescribed period.

¶11 The juvenile court implicitly, and correctly, acknowledged the standard it was

required to apply before it granted Sean and Colleen’s motion and ordered that Marco’s

consent to Baby G.’s adoption was unnecessary. It noted, “as soon as [Marco] learned that

the mother planned to place the minor for adoption, he began to investigate what he needed

to do and believed he was within the 30 day registry.” Nevertheless, as the court correctly

found, Marco had failed to file the notice within the prescribed period.

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¶12 At the hearing on Sean and Colleen’s motion, the court acknowledged the

result may be harsh, particularly when Marco’s notice was late by only one day. But, the

court stated, “I think that the Legislature . . . meant for there to be, [and] everybody [to] be

able to count on[,] a certain time period that has to be met.” The court implicitly found

Marco had not sustained his burden of establishing a statutory excuse for his untimeliness.3

As with other questions of fact, it was for the court to determine in the exercise of its

discretion whether Marco had shown by clear and convincing evidence that it had not been

possible for him to file the notice of claim of paternity within thirty days of Baby G.’s birth.

Cf. In re Charles B., 194 Ariz. 174, ¶ 7, 978 P.2d 659, 662 (App. 1998) (appellate court

reviews juvenile court’s determination of juvenile’s incompetency to stand trial for abuse of

discretion). As discussed below, on this record, we cannot say the court abused its

discretion.

¶13 Marco maintains that he immediately began to look into what he had to do to

assert his rights once he learned from Sylvia in an email she had sent him on May 27 that

3
In his reply brief, Marco contends the juvenile court failed to make this finding
expressly, arguing the court “[d]id [n]ot [a]pply the [p]rovisions of A.R.S. § 8-106.01(E) in
its [r]uling.” But both the minute entry, in which the court implicitly acknowledged the
standard it was to apply, and the court’s comments at the hearing permit the inference the
court applied the statute in its entirety. The statute does not require the court to state its
findings on the record. We may generally infer findings of fact necessary to sustain a court’s
order. See Johnson v. Elson, 192 Ariz. 486, ¶ 11, 967 P.2d 1022, 1025 (App. 1998). And,
finally, Division One of this court recently concluded that, when a party fails to object
below to “the alleged lack of detail in the juvenile court’s findings,” the issue is deemed
waived when raised for the first time on appeal, as it is here. Christy C. v. Ariz. Dep’t of
Econ. Sec., 214 Ariz. 445, ¶ 21, 153 P.3d 1074, 1081 (App. 2007).

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she had placed Baby G. for adoption. He argued below that he could not contact her other

than through email and that he “[d]id not know exactly where she was living.” And, he

contended, once he learned about the registry, he filed the notice, believing then that he had

timely filed it. He further asserts Sylvia “not only consciously withheld the child’s due date,

but misled [him] as to her intentions with regard to the rearing of their child.” He adds,

“The birth mother engaged in this subterfuge in full knowledge and awareness that [he] was

willing and able to raise his child.”

¶14 Even assuming, without deciding, that the record supports Marco’s

contentions about Sylvia’s conduct, those facts still do not show it had been impossible for

Marco to file the notice with the department of health services within the required period.

See In re Adoption of Reeves, 831 S.W.2d 607, 609-10 (Ark. 1992) (finding mother’s

perjury in failing to identify putative father did not justify his failure to register in putative-

father registry); In re Adoption of O.J.M., 687 N.E.2d 113, 118 (Ill. App. Ct. 1997) (finding

mother’s misrepresentation during adoption proceedings that another man was child’s father

did not excuse biological father’s failure to comply with requirements of paternity-

registration statute); In re Adoption of W., 904 P.2d 1113, 1115, 1122 (Utah Ct. App. 1995)

(finding father’s consent to adoption unnecessary because he failed to file timely notice of

paternity even though mother had falsely denied knowing identity of child’s biological

father). Nor does Marco’s apparent interest in asserting his rights and establishing paternity

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explain why it had not been possible for him to register timely and does not excuse him from

complying with § 8-106.01(B).

¶15 The record, which includes copies of the emails Marco attached to his

response to Sean and Colleen’s motion, establishes instead that, as we previously stated, by

at least the end of March, well before Baby G. was born, Marco knew Sylvia was pregnant

and, at the time, both of them believed Marco was most likely the biological father.

Regardless of whether Sylvia had intended to keep the child or relinquish her rights and

place the child for adoption, nothing she did explains the untimeliness of Marco’s notice.

He could have filed the notice at any time before the child was born, and he did not sustain

his burden of proving he could not possibly have filed it within thirty days of Baby G.’s

birth.

¶16 Marco also appears to suggest the juvenile court abused its discretion by

finding it was in the child’s best interest for the adoption to proceed without his consent.

But, because § 8-106.01 expressly permitted the court to proceed with the adoption without

Marco’s consent, we can hardly say the court abused its discretion. No finding of best

interest was required before the court could conclude Marco’s consent to the adoption of

Baby G. was not required.

¶17 In any event, Marco’s assertion that adopted children invariably suffer a loss

that could be avoided by permitting an interested father like him to intercede is nothing more

than an expression of Marco’s philosophical opposition to adoptions in general. This

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assertion does not negate the finding the juvenile court made in its December 2007 order,

entered after a hearing, that adoption of Baby G. by Sean and Colleen was in the child’s best

interest. The finding of best interest need only be supported by a preponderance of the

evidence, see § 8-115(B), and nothing before us establishes the court’s finding was not

supported by reasonable evidence. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz.

278, ¶ 4, 53 P.3d 203, 205 (App. 2002) (juvenile court’s order will not be disturbed so long

as reasonable evidence support’s court’s factual findings). Indeed, in its November 26, 2007

order granting Sean and Colleen’s motion, the court noted they had insisted the adoption

hearing proceed as scheduled. In response, the court implicitly found it was in the child’s

best interest to proceed, noting Sean and Colleen had pointed out that “[t]he minor has

been in the placement for over six months and is bonded to the family.” Again, Marco does

not refute this finding.

¶18 Because Marco failed to file a timely notice of claim of paternity in accordance

with § 8-106.01, his consent to the adoption of Baby G. by Sean and Colleen was not

required, and we need not consider the arguments concerning his untimely service of the

paternity action under § 8-106(J). The juvenile court’s November 26, 2007 order granting

Sean and Colleen’s motion is affirmed.

____________________________________
JOSEPH W. HOWARD, Presiding Judge

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CONCURRING:

____________________________________
JOHN PELANDER, Chief Judge

____________________________________
J. WILLIAM BRAMMER, JR., Judge

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