Arizona court: Child, 10, had a right to know about biological dad

In a unanimous decision, the three-judge panel acknowledged that a trial judge had appointed an attorney to represent the girl's interests in the legal proceeding. That was the correct decision, appellate judge Andrew Jacobs wrote. 

But where it went wrong, the appellate court said, is when that appointed counsel told the trial court that, in her judgment, cutting the legal ties to the father was in the girl's best interest.

"No one asked 10-year-old K.M. what she wanted before the juvenile court terminated her biological father's parental rights,'' Jacobs wrote. "No one even told her she had a biological father she didn't live with, or who he was.''

Instead, her court-appointed counsel told Maricopa County Superior Court Judge Justin Beresky that she had exercised her own "substituted judgment'' to decide it was the girl's position that terminating the relationship was in her best interests.

"This procedure deprived K.M. of her chance to be heard, and made the termination proceedings fundamentally unfair,'' Jacobs said.

The case is now being sent back to the trial court to determine whether the girl, now 11, can direct her own legal representation.

And this time, the girl will have different legal counsel.

The case stems from the girl's 2015 birth in Alabama. Her mother and father never married but co-parented K.M. together for a short time after her birth.

In 2018, the girl's mother and stepfather moved to Arizona and K.M. has lived with them since.

Three years later the biological father, identified only as Maurice M., sought to establish parenting time with K.M. in an Alabama family court. But a judge there dismissed the case because that court didn't have jurisdiction.

In 2022, the mother married the stepfather in Arizona.

A year later, she filed paperwork in Arizona to terminate the father's parental rights, saying he had not provided essential support and had not maintained contact with the girl for seven years. She also said the stepfather wanted to adopt K.M. — something that required severing the biological father's legal rights — and the girl's last name would be changed to that of the stepfather.

At a hearing, the biological father acknowledged he could have done more to be in the girl's life, and said he was willing to pay child support and wanted the girl to know her extended family, his fiancé, and their shared children.

He said he was appreciative of what the mother and stepfather had done for K.M. but believed the girl's life could continue with them without severing his legal rights.

But much of the case focused on the testimony from the counsel who had been appointed to represent the girl's interests.

The lawyer acknowledged substituting her own judgment for K.M. because she was 10 "and she has no idea that her stepdad is not her dad.''

The attorney had no real answer to K.M.'s response to the question of why her last name was different than her stepfather's. "She just knows it's different,'' the lawyer told the court. "She thinks it's unique and fun.''

The bottom line, the appellate court said, was that K.M. was not asked what she wanted and was not even told of the existence of her biological father and the fact that he had gone to court to maintain a legal relationship with her.

All of that added up to an illegal procedure, Jacobs wrote.

"In Arizona, a child has an interest in the outcome of a proceeding to terminate a parent-child relationship, so the child must receive due process in that proceeding,'' the appellate judge wrote for himself and his colleagues. That means "an opportunity to be heard at a meaningful time and in a meaningful manner.''

That's where the court-appointed counsel comes in. "The attorney must keep the child informed, in an age and developmentally appropriate manner, of each court proceeding,'' Jacobs said.

The counsel should consult the child and may speak with others to determine whether the child has the ability to direct the lawyer's actions, he said. But he said there is no set formula for that.

"Importantly, youth does not demonstrate incapacity,'' he wrote. And there are legal rules that say children as young as 10 have opinions that are entitled to be given weight in legal proceedings governing their custody.

"Thus, in addition to age, a child's counsel should consider, among other things, the client's (the child's) ability to articulate a reasoned position, state of mind, and ability to appreciate the consequences of their decision making,'' Jacobs said.

On top of that, Jacobs said there was no indication from the court-appointed counsel that K.M. was intellectually incapable of making such a decision. Nor did the lawyer make any such suggestion to the trial judge.

Instead, it came down to the counsel arguing — and the trial judge concluding — that "never letting K.M. know the truth about her biological father was better for her.''

Jacobs said the trial judge also erred by accepting the mother's argument that the girl feared what would happen if her mother died and that she might be uprooted and sent to a father she did not know.

"The juvenile court's statement was error because no one told K.M. (her biological) father even exists, so it can't be true that she subjectively fears being sent to live with him if mother dies,'' Jacobs wrote.