West v. Mallory G M..W.

CHRISTOPHER W., Appellant, v. MALLORY M., G.W., Appellees.

No. 1 CA-JV 17-0087

No. 1 CA-JV 17-0350 (Consolidated)

ARIZONA COURT OF APPEALS DIVISION ONE

October 12, 2017

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

No. JS517296

The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

Christopher W., Littleton, Colorado

Appellant Pro Per

The Stavris Law Firm, PLLC, Scottsdale

By Christopher Stavris

Advisory Counsel for Appellant

Berkshire Law Office, PLLC, Phoenix

By Keith Berkshire, Maxwell Mahoney

Counsel for Appellee Mallory M.

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Jon W. Thompson and Judge John C. Gemmill¹ joined.

JONES, Judge:

¶1 Christopher W. (Father) appeals the juvenile court's orders terminating his parental rights to G.W. (Child) and denying his motion for new trial. For the following reasons, we affirm.

FACTS² AND PROCEDURAL HISTORY

¶2 Child was born in Nebraska in January 2015. At the time, Father had just begun serving a 5.83-year term in a Colorado federal prison for charges related to the distribution of methamphetamine. Child's mother (Mother) was also incarcerated and granted Child's maternal aunt, Mallory M. (Aunt), permission to care for Child. Aunt and Child visited family in Montana for a few weeks and then returned to Aunt's home in Arizona, where the two have since resided.

¶3 Father initiated the Arizona litigation regarding this matter when he filed a petition to establish paternity in an Arizona family court in February 2015. Two months later, Aunt filed a petition in juvenile court to terminate Father's parental rights to Child on the grounds of abandonment, substance abuse, and length of incarceration. Within the petition, Aunt indicated she had Mother's consent to adopt Child and intended to do so upon termination of Father's parental rights. At a contested severance hearing in February 2017, Aunt presented evidence that Father had beenincarcerated for the entirety of Child's life, had never met Child, and would not be released for another two and a half years.

¶4 After taking the matter under advisement, the juvenile court entered an order finding Aunt proved by clear and convincing evidence that Father had been convicted of a felony and would be incarcerated for a length of time that would deprive Child of a normal home for a period of years. See Ariz. Rev. Stat. (A.R.S.) § 8-533(B)(4).³ The court also found severance was in Child's best interests and entered an order terminating Father's parental rights. After Father timely appealed the termination order, Father filed a motion for new trial. The juvenile court denied the motion after concluding it did not have jurisdiction to take further action while the matter was on appeal. Father then appealed the order disposing of his motion for new trial. This Court previously consolidated Father's appeals, and we have jurisdiction to consider them pursuant to A.R.S. §§ 8-235(A), 12-120.21(A)(1), -2101(A)(1), (5)(a), -2102(B), and Arizona Rule of Procedure for the Juvenile Court 103(A).

DISCUSSION

I. Due Process

¶5 Father argues his due process rights were violated because his counsel was ineffective. Father argues his attorneys were ineffective because they disregarded his direction to collect and present evidence indicating: (1) he and Mother intended for Child to be raised by paternal family members, not Aunt, while they both were incarcerated, and (2) Mother unilaterally released Child to Aunt without his knowledge or consent. These materials, totaling more than six hundred pages, were not presented to the juvenile court but are included in an appendix to Father's opening brief, and he now moves to add them to the record on appeal.

¶6 Reversal of an order terminating parental rights may be justified "by inadequacy of counsel" if the parent can show "both incompetence and prejudice." John M. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 320, 325, ¶¶ 17-18 (App. 2007) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984), and Pima Cty. Severance Action No. S-2397, 161 Ariz. 574, 578 (App. 1989)). Father has shown neither.

¶7 Father erroneously believes Aunt's assumption of Child's care without his permission nullifies the petition for termination of hispaternal rights. But, as detailed below, those circumstances are irrelevant to Aunt's standing to file the petition, the juvenile court's jurisdiction to consider it, and whether Father's incarceration deprives Child of a normal home for a period of years. See infra Parts II through IV.

¶8 The facts Father seeks to prove through introduction of the materials contained in his appendix have no bearing on our analysis of the issues presented on appeal. Therefore, we can say neither that counsels' conduct fell below the standard of care, nor that Father has been prejudiced by the omission of these materials. For these reasons, we deny Father's motion to supplement the record and find no due process violation or reversible error.

II. Standing

¶9 Father challenges Aunt's standing to petition for termination of his parental rights. A party's standing to initiate an action presents a question of law we review de novo. State ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist. Bd., 242 Ariz. 325, 329, ¶ 7 (App. 2017) (citing Pawn 1st, L.L.C. v. City of Phx., 231 Ariz. 309, 311, ¶ 11 (App. 2013)). Where a statute is clear and unambiguous, we apply its plain language "unless such an application will lead to absurd or impossible results." Tanya K. v. Dep't of Child Safety, 240 Ariz. 154, 156, ¶ 5 (App. 2016) (quoting Grubaugh v. Blomo ex rel. Cty. of Maricopa, 238 Ariz. 264, 266, ¶ 6 (App. 2015)).

¶10 Father contends Aunt does not have standing to petition for termination of his parental rights because she did not have "lawful possession" of Child. But custody is not a prerequisite to filing such a petition; pursuant to A.R.S. § 8-533(A), "[a]ny person or agency that has a legitimate interest in the welfare of a child, including, but not limited to, a relative, [or] a foster parent . . . may file a petition for the termination of the parent-child relationship." Aunt is both a relative and foster parent of Child, has cared for Child since birth, and has a legitimate interest in Child's welfare by virtue of those roles as well as her desire to adopt Child.⁴

Moreover, Aunt's filing is consistent with the statute's purpose: "to provide for both voluntary and involuntary severance of the parent-child relationship and for substitution of parental care and supervision" compatible with the parent's rights and the child's welfare. Hernandez v. State ex rel. Ariz. Dep't of Econ. Sec., 23 Ariz. App. 32, 36 (1975) (quotation omitted) (emphasis added). Accordingly, we conclude Aunt was authorized to file the petition.

III. Jurisdiction

¶11 Father argues the juvenile court lacked jurisdiction to terminate his parental rights. "Whether the superior court had jurisdiction to sever Father's parental rights is a question of law this court reviews de novo." Angel B. v. Vanessa J., 234 Ariz. 69, 71, ¶ 6 (App. 2014) (citing Danielson v. Evans, 201 Ariz. 401, 411, ¶ 36 (App. 2001), and David S. v. Audilio S., 201 Ariz. 134, 136, ¶ 4 (App. 2001)).

¶12 This Court has previously held that Arizona's "exclusive original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present in the state," A.R.S. § 8-532, must yield to the Uniform Child Custody and Jurisdiction and Enforcement Act (UCCJEA), A.R.S. §§ 25-1001 to -1067, if applicable. Angel B., 234 Ariz. at 73, ¶ 14. Under the UCCJEA, the child's home state has original jurisdiction over the first proceeding initiated to determine the custody of a child. A.R.S. §§ 25-1002(A), -1031(A)(1). A child's "home state" is:

(a) The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which that person is temporarily absent from that state[; or]

(b) If a child is less than six months of age, the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.

A.R.S. § 25-1002(7).

¶13 At the time the petition for termination was filed, Child was only three months old. She had lived in Arizona with Aunt, acting as her parent, for the entirety of her short life, with the exception of the short period of transition between Nebraska and Aunt's home in Arizona. Arizona is Child's home state as defined within A.R.S. § 25-1002(7)(b), and jurisdiction in the juvenile court was proper under both A.R.S. §§ 8-532 and 25-1031(A)(1). Father himself asserted Arizona was "[t]he only appropriate [forum]" to adjudicate his paternity because Arizona "has been the only home state of the child since her birth."

¶14 Father nonetheless argues jurisdiction is proper in Wyoming, where he and Mother resided prior to his arrest, incarceration, and conviction, because Aunt "essentially kidnapp[ed]" Child and therefore Child "was not in Arizona lawfully."⁵ But Wyoming is not Child's home state because Child never lived in that state. See supra ¶ 12. Additionally, the Wyoming court had the opportunity to make the initial custody determination in a separate custody proceeding initiated by Father, in Wyoming, after the severance petition was filed. However, after consultation with the Arizona court, the Wyoming court declined to do so, instead indicating Arizona was the more convenient and appropriate forum to resolve disputes regarding Child's care and custody.⁶ See A.R.S. § 25-1036 (directing the courts in states where proceedings concerning the custody of a single child commence simultaneously to communicate with each...