Roberto F. v. Dep't of Child Safety

ROBERTO F., Appellant, v. DEPARTMENT OF CHILD SAFETY, JIMMY S., TRACIE H., L.F., I.A., Appellees.

No. 1 CA-JV 13-0209

ARIZONA COURT OF APPEALS DIVISION ONE

October 6, 2015

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Mohave County

No. S8015AD201200034

The Honorable Richard Weiss, Judge

REVERSED

COUNSEL

Mohave County Legal Defender's Office, Kingman

By Ronald S. Gilleo

Counsel for Appellant

Arizona Attorney General's Office, Phoenix

By Amanda L. Adams

Counsel for Appellee Department of Child Safety

Law Office of Michele Holden P.L.L.C., Kingman

By Michele Holden

Counsel for Appellees Jimmy S. and Tracie H.

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.

JONES, Judge:

¶1 We previously issued an opinion vacating the juvenile court's order denying the motion of Roberto F. (Father) to set aside the adoption of his biological children on the basis that this Court had vacated the order terminating his parental rights. See Roberto F. v. Dep't of Child Safety (Roberto II), 235 Ariz. 388, 390, ¶ 1 (App. 2014); Roberto F. v. Ariz. Dep't of Econ. Sec. (Roberto I), 232 Ariz. 45, 47, ¶ 1 (App. 2013). In doing so, we interpreted Arizona Rule of Procedure for the Juvenile Court 103(F) as divesting the juvenile court of jurisdiction to grant an order of adoption during the period in which a parent's appeal of an order terminating his parental rights is pending. Roberto II, 235 Ariz. at 395, ¶ 23.

¶2 Our supreme court vacated that opinion, concluding Rule 103(F) applies only to the case on appeal and does not apply to separate adoption proceedings. Roberto F. v. Dep't of Child Safety (Roberto III), 237 Ariz. 440, 442, ¶ 13 (2015). It therefore remanded the case to this Court to decide whether the juvenile court properly denied Father's motion to set aside the adoption pursuant to Arizona Rule of Procedure for the Juvenile Court 85(A). Id. at 443, ¶¶ 14-15.

¶3 Father's motion to set aside the adoption was premised upon the reinstatement of his parental rights by this Court in Roberto I, 232 Ariz. at 47, ¶ 1. When the juvenile court ruled on Father's motion, the appellate mandate in Roberto I had not issued, and the order reinstating Father's parental rights was therefore not final. See ARCAP 24 ("The mandate is the final order of the appellate court."); In re Marriage of Flores, 231 Ariz. 18, 21, ¶ 10 (App. 2012). The only objection, filed by the adoptive parents, did not address the merits of Father's motion but only argued it was premature.

¶4 The mandate in Roberto I has since issued, resolving any question as to the status of Father's parental rights. See Raimey v. Ditsworth, 227 Ariz. 552, 555, ¶ 6 (App. 2011) ("An appellate mandate, along with the decision it seeks to implement, is binding on the trial court and enforceable according to its 'true intent and meaning.'") (quoting Vargas v. SuperiorCourt, 60 Ariz. 395, 397 (1943)). Because the prior judgment terminating Father's parental rights was vacated, the basis for the adoption is no longer valid. Maricopa Cnty. Juv. Action No. JA 33794, 171 Ariz. 90, 94 (App. 1991) (holding that, in the absence of consent from the natural parent, the court must terminate a parent's rights in accordance with Arizona Revised Statutes section 8-533 before the child may be adopted). Father is therefore entitled to relief from the adoption order. See Ariz. R. Fam. L.P. 85(C) (authorizing the trial court to "relieve a party or a party's legal representative from a final judgment, order or proceeding . . . [where] a prior judgment on which it is based has been reversed or otherwise vacated").

¶5 Accordingly, the juvenile court's order denying Father's motion to set aside the adoption is reversed.