as: 163 Ariz. 457, 788 P.2d 1208)
of Appeals of Arizona,
1, Department B.
the Matter of the Appeal in MARICOPA COUNTY JUVENILE ACTION
1 CA-JV 89-006.
as Opinion and Publication Ordered Dec. 27, 1989.
father's lack of legally established paternity or custody was relevant
to dependency hearing as result of putative father's inability to
exercise proper and effective parental care and control necessary to
prevent child from being found dependent, even though he was
willing and able to physically care for child, where lack
of legal status as father rendered putative father incapable of
adequately protecting child if mother were to try to regain
custody. A.R.S. §§ 8-201,
subd. 11(a), 8-223, subd. D, par. 4, 8-546, subd. A,
supported finding that child was dependent based on finding that
putative father's lack of legal order of custody or paternity
would give putative father no legal right to retain custody
of child if mother should decide to assert right to
custody, which in turn rendered putative father unable to protect
minor child from potential abuse. A.R.S. §§ 8-201,
8-546, subd. A, par. 4(a), 13-1302, subd. B.
Robert K. Corbin, Atty. Gen. by Robert J. Sorce, Asst.
Atty. Gen., Phoenix, for appellee Arizona Dept. of Economic Sec.
Anthony Giammarco, Mesa, for appellant Natural Father.
Kessler & Doyle by Eric W. Kessler and Michael J.
Doyle, Mesa, for appellee Minor Child.
Robert B. Bushor, Tempe, for appellee Mother.
Editor's Note: Redesignated as an Opinion.
This appeal is taken by the alleged natural father from
the order of the juvenile court adjudicating the minor a
dependent. The issue is whether the juvenile court abused its
discretion by finding the minor dependent solely because appellant, although
claiming to be an otherwise appropriate parent, had not legally
established either his paternity or his right to custody. For
the reasons stated below, we find that the juvenile court's
determination of dependency was reasonable and supported by clear and
convincing evidence. [FN1]
We therefore affirm the dependency.
Although a preponderance of the evidence standard is customarily used
in determining dependency, the clear and convincing standard was used
in this case because the mother and children are members
of the Gila River Indian Community and the Indian Child
Welfare Act applies. 25 U.S.C. § 1912(e).
FACTS AND PROCEDURAL HISTORY
The minor child (O.) and three other siblings were removed
from their mother's home on August 31, 1988 because of
the unfit condition of the home and the mother's neglect
of the children. At the time of their removal, the
mother was unable to provide any information concerning the children's
fathers or who might be available to care for them
in her stead. The children were therefore taken into temporary
custody by the Department of Economic Security (DES).
On September 1, 1988, the mother informed a DES caseworker
that appellant was the father of all four children. On
September 2, 1988, appellant told the caseworker that he was
"relatively certain" that he was the father of O., but
that he was unsure about the other children.
Appellant and the natural mother have never been married and
appellant's name does not appear on any of the children's
birth certificates. No order of custody exists as to either
parent for any of the children nor has either the
or appellant ever sought or obtained an official determination as
to appellant's paternity. When questioned by the caseworker about visitation
arrangements, appellant replied that he did not see the children
on a regular basis but only "at the mother's whim."
On September 2, 1988, DES filed a dependency petition alleging
that the mother was unable and unwilling to provide proper
parental care and control of her four children. This allegation
was based on the unfit condition of the home and
the mother's neglect. The petition also alleged dependency as to
appellant because, although he acknowledged his paternity of O., his
parenting ability was then unknown.
On September 14, 1988, a home study was conducted, and
appellant's home was deemed a suitable placement for O. Therefore,
on September 20, 1988, he was granted physical custody of
At trial, appellant moved to dismiss the dependency petition as
to O. claiming that, following her placement with him, he
had proven himself to be an appropriate caretaker. The court
refused to dismiss the petition on the ground that no
legal determination as to appellant's paternity or right to custody
Following trial, the court found by clear and convincing evidence
that all four children were dependent. As to O., the
[appellant] is providing appropriate parental care and guidance for [O.],
he is not legally capable of continuing to provide proper
and effective parental care and control for the reason that
he does not have any legal right to custody of
the child under either existing statutes or custody orders.
Appellant timely appealed. He now claims that the evidence was
insufficient to support the finding of dependency, and he asks
this court to reverse the trial court's decision as it
pertains to O.
Under Arizona law, a child is deemed to be dependent
when he or she has been adjudicated to be:
need of proper and effective parental care and control and
... has no parent
willing to exercise or capable of exercising such care or
A.R.S. § 8-201(11)(a);
A.R.S. § 8-546(A)(4)(a)
Appellant argues that the evidence is insufficient to show that
he is either incapable or unwilling to adequately care for
and control the minor child. He asserts that O. should
not have been adjudicated dependent because his paternity of her
is undisputed and he has clearly demonstrated both his ability
and his willingness to provide effective parental care. These factors,
appellant asserts, are the only ones the trial court should
have considered in determining dependency.
In support of his position, appellant points out that the
dependency statutes have
no requirement that a putative parent establish paternity or right
to custody in order to avoid a finding of dependency.
Additionally, he notes that lack of the title "legal father"
did not prevent his obtaining physical custody of the minor
child less than one month after her removal from her
mother's home. Therefore, he argues, the trial court abused its
discretion by finding O. dependent solely on the ground that
he has no paternity or custody order when he is
undisputedly an otherwise appropriate parent.
The state responds that proper and effective parental care necessarily
includes the legal ability to exercise the rights of a
parent, including the right to protect one's child from abuse
and neglect. Such legal ability is necessary in this case,
the state claims, because the abusive mother requested dismissal of
the dependency petition and return of the child to her
In addition, the state asserts that, unless the father's status
is legally established, the abusive mother would have a superior
right to custody of O. if a custody dispute should
arise. Thus, the state argues, appellant is not legally capable
of continuing to provide proper and effective parental care and
Appellant's Legal Status Should Have Been Considered.
respond first to appellant's claim that the trial court erred by injecting
arguments relating to lack of legally established paternity or custody
into its determination of dependency. Apparently, appellant
us believe that, because the dependency statutes do not specifically state
that a "parent" must be one who possesses a paternity or custody
order, therefore one claiming to be a parent and who has otherwise appropriate
parenting skills can be a "parent" under the statute. According
to appellant's interpretation of the dependency statutes, the only factors
the court should have considered were his undisputed willingness and proven
ability to physically care for O.
We disagree. The dependency statutes do not and need not
enumerate each and **1211
every instance of what constitutes proper and effective parental care
and control. However, at the threshold, the one claiming to
be able to exercise that care and control must have
the legal ability to do so. In this case, effective
parental care necessarily includes the continuing ability to protect the
child from a potentially abusive mother. A comparable situation existed
in Pima County Juvenile Action No. J-77188,
139 Ariz. 389, 678 P.2d 970 (App.1983), in which the
court affirmed the sufficiency of a dependency petition as to
the mother, despite the fact that the mother was undeniably
a fit and willing parent, because the mother was legally
incapable of preventing further sexual abuse by the father. The
court held that the mother's legal inability to protect the
child from a potentially abusive father was a sufficient basis
for the dependency petition. Id.
at 393, 678 P.2d at 974. Here, although appellant is
willing to parent, if he cannot legally protect O. from
the potentially abusive mother, the child may be found to
be statutorily dependent.
Appellant also argues that, after DES filed the dependency petition,
he was granted physical custody of O. although no circumstances
had changed other than the filing of the dependency. Thus,
he argues, if he did not need to establish paternity
or custody rights to obtain custody at that time, he
should not be required to do so now to avoid
a finding of dependency.
What appellant ignores is that, absent the dependency petition and
temporary grant of custody to DES, his right to custody
of O. has no legal basis and the trial court
would have had no authority to place the child with
anyone other than the parent from whose home she had
been removed. A.R.S. § 8-223(D)(4).
Appellant's apparent assumption that "no circumstances [had] changed" is mistaken.
The filing of the dependency petition and the subsequent grant
of temporary custody to the state changed the rights of
the mother vis-a-vis the state and appellant. Before filing, neither
the state nor appellant had rights to custody superior to
the natural mother. After the filing and the award of
temporary custody to DES, the state's right to custody was
superior to the mother's and included the concomitant right to
authorize and supervise O.'s placement with appellant. Thus, appellant's argument
here actually militates against his position that his legal status
should not have been a factor in the court's dependency
A.R.S. § 8-223(D)(4)
written notice shall contain the name of the person and
agency taking the child into custody and the location from
which the child was taken and all the following information:
A statement that the child must be returned within forty-eight
hours excluding Saturdays, Sundays and holidays unless a dependency petition
is filed and a statement that a child in temporary
custody for examination pursuant to subsection B, paragraph 2, subdivision
(b) of this section must be returned within twelve hours
unless abuse is diagnosed.
We hold that the trial court properly considered appellant's legal
status in determining O.'s dependency. However, the question remains whether
appellant's lack of legal status in fact rendered him incapable
of adequately protecting the child from a potentially abusive mother.
We turn now to that question.
of the Evidence.
contends that the evidence is insufficient under the clear and convincing
standard to show that his lack of legal status renders him unable to adequately
protect and care for the minor child. At trial, DES caseworkers
testified that, in their opinion, O. would be at risk of physical abuse
or neglect if the mother were to regain custody at this time. Appellant
claims, however, that aside from the fears of the caseworkers, no evidence
whatsoever exists that the mother intends to attempt to regain custody
of the child. He claims, therefore, that he is capable of
protecting the child even without a legal order of custody or paternity.
To the contrary, the evidence shows that the mother clearly
wishes to regain custody. The mother contested the allegations in
the petition, moved to have the petition **1212
dismissed and consistently maintained the position that she wanted all
the children returned to her. Both caseworkers agreed that O.
would be at risk of abuse or neglect if the
dependency were dismissed because appellant's lack of legal status gave
him no legal right to retain custody of O. should
the mother decide to assert her right to custody.
Appellant claims that he would protect the child by calling
the police if the mother should attempt to take her
back. The state correctly responds that such a confrontation would
be treated as custodial interference in which the natural mother
would have a superior right to custody over a putative
father. A.R.S. § 13-1302(B),
the custodial interference statute, creates a presumption of legal custody
to the mother if a child is born out of
wedlock and neither paternity nor custody has been judicially determined.
A.R.S. § 13-1302(B)
a child is born out of wedlock, the mother is
the legal custodian of the child for the purposes of
this section until paternity is established and custody is determined
by a court.
Admittedly, the mother here presently affirms appellant's paternity. Nevertheless, the
juvenile court could have concluded, based upon the evidence, that
she likely would change her mind, deny appellant's paternity, and
seek to regain custody. In an ensuing custody dispute, appellant
would have no more right to custody of O. over
the natural mother than any other stranger to the relationship.
State v. Donahue,
140 Ariz. 55, 680 P.2d 191 (App.1984) (unwed father had
no right to custody over the mother absent court order
to that effect); Thornsberry
v. Superior Court,
146 Ariz. 517, 707 P.2d 315 (1985) (prior adjudication of
paternity or maternity required pursuant to A.R.S. § 25-331
before trial court has jurisdiction to grant custody or visitation
to a putative parent).
On appeal from a dependency determination, this court will not
substitute its judgment for that of the trial court unless
no reasonable evidence exists to support the lower court's finding.
Re Pima County Juvenile Action No. J-31853,
18 Ariz.App. 219, 220, 501 P.2d 395, 396 (1972). Our
review of the record reveals that the trial court carefully
considered the relevant facts and legal
arguments before adjudicating O.'s dependency.
We find that the trial court's conclusion that the state
presented sufficient clear and convincing evidence of the dependency of
O. is supported by the evidence.
[FN4] We therefore affirm.
We also note that appellant could have avoided this entire
problem by simply seeking to establish his paternity, a step
he apparently is unwilling to take.
VOSS, P.J., and KLEINSCHMIDT, J., concur.
163 Ariz. 457, 788 P.2d 1208