IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ROGER S., Appellant,
v.
JAMES S., WHITNEY K., A.S., Appellees.
No. 1 CA-JV 20-0273
FILED 6-29-2021
Appeal from the Superior Court in Maricopa County
No. JD37965
The Honorable Lori Bustamante, Judge
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek, Erica Padish Conrad (argued)
Counsel for Appellant
Edward D. Johnson, Peoria
Counsel for Appellee James S.
Arizona Attorney General’s Office, Tucson
By Dawn R. Williams
Counsel for Amicus Curiae Department of Child Safety1
1 We thank the Department of Child Safety for its thoughtful amicus
brief in this matter.
ROGER S. v. JAMES S., et al.
Opinion of the Court
OPINION
Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.
M c M U R D I E, Judge:
¶1 Roger S. (“Roger”) appeals the court’s judgment in favor of
James S. (“James”) regarding the paternity of a child, Olivia.2 We conclude
the superior court did not err by allowing James to challenge paternity
based on fraud, duress, or mistake under A.R.S. § 25-812(E) and Arizona
Rule of Family Law Procedure 85 when he asserted his paternity in a
request to the court within six months of Mother and Roger’s
acknowledgment of paternity. In addition, James presented sufficient
evidence for the court to conclude the acknowledgment was made under a
material mistake of fact. We, therefore, affirm the court’s order setting aside
the paternity judgment in favor of Roger and entering a paternity judgment
in favor of James.
FACTS AND PROCEDURAL BACKGROUND
¶2 Olivia was born on July 22, 2019. Mother engaged in sexual
intercourse with both Roger and James around the time of Olivia’s
conception. On July 29, 2019, Olivia’s birth certificate was registered with
the Bureau of Vital Records with Roger listed as the father. About a month
after Olivia’s birth, Mother contacted James. He was aware of Mother’s
pregnancy but not the birth. Mother invited James to her home to see Olivia.
After seeing Olivia, James bought and administered a home DNA paternity
test. A short time later, James received results indicating he is Olivia’s
biological father.
¶3 On September 13, 2019, the Department of Child Safety
(“DCS”) took temporary custody of Olivia because of suspected neglect and
petitioned for a dependency concerning both Mother and Roger. DCS
alleged that Roger had established his paternity by acknowledgment of
2 We refer to the child by a pseudonym to protect her identity.
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ROGER S. v. JAMES S., et al.
Opinion of the Court
paternity. At the initial dependency hearing, the court noted that Roger’s
paternity had been established.
¶4 Mother did not contest the dependency, and the court found
Olivia dependent as to Mother. Roger challenged the dependency, and the
court scheduled an adjudication to decide the matter.
¶5 Once James received the home paternity test results, he filed
a request to intervene in Olivia’s dependency case, attaching a copy of the
test results. Based on James’s paternity claim, the court ordered DCS to
provide James with a DNA paternity test. Although he was not yet a party
to the case, James began to attend the dependency proceedings.
¶6 During Roger’s contested dependency adjudication, the court
informed the parties that the court-ordered DNA paternity test proved that
James was Olivia’s father. DCS orally moved to amend the petition to allege
James as Olivia’s father, but Roger objected to the motion. As a result, the
court allowed DCS to file a written motion and Roger to object to James’s
paternity claim.
¶7 DCS then moved to amend the dependency petition to allege
James was the biological father of Olivia. DCS further alleged that Olivia
was dependent as to James because of neglect. The court granted DCS’s
motion, and James entered a no-contest plea regarding the allegations in
the dependency petition. The court found Oliva dependent as to both Roger
and James. The court then scheduled an evidentiary hearing to address the
competing paternity claims.
¶8 At that hearing, neither James nor Roger called witnesses.
James presented no documentary evidence, and Roger offered only Olivia’s
birth certificate as evidence. The court stated that Roger’s paternity had
already been established by his acknowledgment of paternity, which had
the force and effect of a judgment under the law. The court then concluded
James had failed to carry his burden to prove the existence of circumstances
that justified setting aside the acknowledgment judgment and affirmed
Roger’s paternity.
¶9 James moved to reconsider, arguing he had received
ineffective assistance of counsel at the hearing. Though he had not
presented evidence at the hearing, there was evidence in the record that the
acknowledgment had been made under either fraud or mistake of fact. The
court found that James had been prejudiced by his lawyer’s conduct and
granted the motion in part, allowing James to file a new motion challenging
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ROGER S. v. JAMES S., et al.
Opinion of the Court
paternity. After receiving briefing on the issue, the court scheduled another
evidentiary hearing.
¶10 At the second hearing, James offered the results from the
court-ordered DNA paternity test. In addition, James testified that Roger
was aware that James and Mother were engaging in sexual intercourse
around the time Olivia was conceived. He further testified that Mother told
him she did not intend to allow Roger to put his name on the birth certificate
until she knew who the father was.
¶11 The court found that James had met his burden to
demonstrate that the acknowledgment had been made under a material
mistake of fact under A.R.S. § 25-812(E). Accordingly, the court set aside
Roger’s paternity judgment and deemed James the legal parent of Oliva
based on the genetic testing proving parentage. See A.R.S. § 25-401(4).
¶12 Olivia remains a ward of the court in the legal care, custody,
and control of DCS but has been in the physical custody of James since
November 2020. Roger appealed from the paternity judgment, and we have
jurisdiction under A.R.S. §§ 12-120.21(A)(1), -2101(A)(1), (2), and 8-235(A).
DISCUSSION
A. After 60 Days, a Voluntary Acknowledgment of Paternity Can
Only Be Challenged Based on Fraud, Duress, or Material Mistake
of Fact.
¶13 James and Roger dispute whether the restrictions imposed by
A.R.S. § 25-812(E) apply to a paternity challenge by a putative third-party
father. We review questions of statutory interpretation de novo. Garlan v.
Garlan, 249 Ariz. 278, 280, ¶ 4 (App. 2020). When an appeal presents a mixed
question of law and fact, we defer to the superior court’s factual findings
but review de novo “all legal conclusions.” Helvetica Servicing, Inc. v. Pasquan,
249 Ariz. 349, 352, ¶ 10 (2020).
¶14 A.R.S. § 25-812 provides a procedure for establishing
paternity by voluntary acknowledgment. Our legislature adopted the
current system in response to the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996,3 which conditioned certain federal
3 Personal Responsibility and Work Opportunity Reconciliation Act of
1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered
sections of titles 7, 8, 21, 25, and 42 of the United States Code).
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ROGER S. v. JAMES S., et al.
Opinion of the Court
funding on a state’s adoption of laws and procedures for establishing
paternity and enforcing child support obligations. 42 U.S.C. § 666(a)(5)(C);
1997 Ariz. Sess. Laws ch. 219, § 39.
¶15 Subsection 666(a)(5)(D)(ii) and (iii) of Title 42 of the United
States Code sets forth statutorily prescribed procedures the states are
required to enact if they wish to be eligible for such funding, including
(ii) Legal finding of paternity
Procedures under which a signed voluntary acknowledgment
of paternity is considered a legal finding of paternity, subject
to the right of any signatory to rescind the acknowledgment
within the earlier of--
(I) 60 days; or
(II) the date of an administrative or judicial proceeding
relating to the child (including a proceeding to
establish a support order) in which the signatory is a
party.
(iii) Contest
Procedures under which, after the 60-day period referred to
in clause (ii), a signed voluntary acknowledgment of
paternity may be challenged in court only on the basis of
fraud, duress, or material mistake of fact, with the burden of
proof upon the challenger, and under which the legal
responsibilities (including child support obligations) of any
signatory arising from the acknowledgment may not be
suspended during the challenge, except for good cause
shown.
In addition, to qualify for funding, states are required to create procedures
ensuring that putative fathers have a reasonable opportunity to initiate a
paternity action. 42 U.S.C. § 666(a)(5)(L).
¶16 Under A.R.S. § 25-812(D), a voluntary acknowledgment of
paternity has the same force and effect as a superior court judgment.
Gutierrez v. Fox, 242 Ariz. 259, 268, ¶ 38 (App. 2017). An acknowledging
parent may rescind the acknowledgment within the earlier of sixty days
after the last signature on the filed acknowledgment or the date of a court
proceeding concerning the child. A.R.S. § 25-812(H). After sixty days,
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ROGER S. v. JAMES S., et al.
Opinion of the Court
paternity can only be challenged by moving for relief from the judgment
under Rule 85 based on fraud, duress, or material mistake of fact. A.R.S.
§ 25-812(E). Such a motion must be made within six months after the entry
of the judgment or order or date of the proceeding, whichever is later. Ariz.
R. Fam. Law P. 85(c)(1); Andrew R. v. ADES, 223 Ariz. 453, 459–60, ¶¶ 23–24
(App. 2010). The six months begins to run when the acknowledgment is
filed with the clerk of the superior court, the Department of Economic
Security, or the Department of Health Services. McQuillen, 249 Ariz. at 73,
¶ 12.; A.R.S. § 25-812(A).
¶17 James urges us to follow Brummond v. Lucio, 243 Ariz. 360, 361,
¶¶ 14–21 (App. 2017), and hold that the restrictions imposed by 25-812(E)
do not apply to a challenge by a putative third-party father. But A.R.S.
§ 25-812(E) provides:
Pursuant to rule 85(c) of the Arizona rules of family law
procedure, the mother, father or child, or a party to the
proceeding on a rule 85(c) motion, may challenge a voluntary
acknowledgment of paternity established in this state at any
time after the sixty day period only on the basis of fraud,
duress or material mistake of fact[.]
(emphasis added). Read in conjunction with the federal requirement that a
state must allow an acknowledgment to “be challenged in court only on the
basis of fraud, duress, or material mistake of fact,” § 25-812(E) does not
allow a putative third-party father to challenge paternity by means other
than a Rule 85 motion alleging fraud, duress, or mistake of fact as
prescribed by A.R.S. § 25-812(E). Therefore, the court could set aside the
acknowledgment judgment only if James made a timely challenge, meaning
within the six months of the entry of the judgment or order. To that extent,
we disagree with Brummond.
B. James Timely Challenged Paternity under A.R.S. § 25-812(E).
¶18 Roger argues the superior court erred by finding in favor of
James because James did not timely challenge paternity by motion
according to Rule 85 as required by A.R.S. § 25-812(E).
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ROGER S. v. JAMES S., et al.
Opinion of the Court
¶19 The acknowledgment of paternity was filed around July 29,
2019.4 On December 2, 2019, about four months later, James filed a
handwritten, pro se, “Request to the Court,” claiming he was the child’s
father and asking to intervene in Olivia’s dependency. The request stated:
Order to [intervene] for [custody] of my daughter [Olivia.] I
did paternity test and she is my daughter that is currently in
foster care [due] to [circumstances] of her mother[.] [M]e and
[Olivia’s] mother have minimal contact with each other so I
am not 100 percent why she is in [custody] of [DCS.] [W]as
told neglect. Attached are a set of paternity test.
It was not until June 22, 2020—more than ten months after the
acknowledgment had been filed—that James filed a formal motion
explicitly alleging the acknowledgment had been made under fraud or
material mistake of fact.
¶20 Roger argues James’s earlier pro se filing failed to satisfy
A.R.S. § 25-812(E) because it did not allege fraud, material mistake of fact,
or duress. However, we decline to place form over substance in this context.
Cf. Ariz. R. Fam. Law P. 24(d) (“Pleadings must be construed so as to do
substantial justice.”).
¶21 Neither A.R.S. § 25-812(E) nor Rule 85 requires a challenger’s
motion to contain specific allegations of fraud, duress, or mistake of fact.
Rule 85(b) flexibly provides that a court may grant relief from a judgment
“[o]n motion and on such terms as are just.” Thus, the only material
requirement is that a motion put the acknowledging parents on notice that
the putative father contends parentage. Here, James put Roger and Mother
on notice by supporting his pro se filing with his self-administered DNA test
results. Implicit in his notice was a contention that, at a minimum, Roger
and Mother’s acknowledgment of paternity was based on a mistake of fact.
4 A copy of Olivia’s birth certificate filed with the court states that it
was registered with the Arizona Department of Health Services Bureau of
Vital Records on July 29, 2019. When a child’s parents are not married at
the time of birth or at any time within ten months before the birth, an
acknowledgement of paternity or an administrative or court order must be
submitted to the Department of Health Services before the Department will
issue a birth certificate listing the child’s father’s name. A.R.S. § 36-334;
Ariz. Admin. Code R9-19-201(A)(1)(c).
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ROGER S. v. JAMES S., et al.
Opinion of the Court
¶22 It was within the court’s discretion to construe James’s filing
as a timely challenge under A.R.S. § 25-812(E) and to hold an evidentiary
hearing to determine whether evidence existed of fraud, duress, or mistake
of fact.
C. The Court’s Finding of Mistake of Fact Was Supported by
Sufficient Evidence.
¶23 Roger also argues the court’s finding of mistake of fact was
not supported by sufficient evidence.
¶24 After the evidentiary hearing, the court found:
[James] testified that [Roger] was well aware that [James] and
Mother were engaging in sexual intercourse at the time of
conception of the child. [James] also testified that Mother
indicated she would not have [Roger] sign the
acknowledgment of paternity until a paternity test was
completed to verify the identity of the Father. Despite the
uncontroverted testimony that both Mother and [Roger]
knew that [James] could be the Father of [Olivia], [Roger] and
Mother signed the acknowledgment of paternity. It was not
reasonable for [Roger] to sign the acknowledgment of
paternity knowing that the possibility existed that he was not
the Father. Mother also knew or should have known [James]
could be the Father of the child at the time she signed the
acknowledgment. Although the evidence presented may not
rise to the level of fraud, the testimony presented is sufficient
to demonstrate there was a material mistake of fact. [James]
has met his burden of demonstrating there was a material
mistake of fact.
¶25 Roger argues there was no material mistake of fact because he
and Mother were both aware that he might not be Olivia’s biological father
when they signed the acknowledgment. But we conclude, as the superior
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ROGER S. v. JAMES S., et al.
Opinion of the Court
court did, that the evidence before the court showed a material mistake of
fact.5
¶26 The acknowledgment form asks for the father’s name and
requires the parents to swear or affirm that the application is true and
correct under the penalty of perjury.6 Mother and Roger were aware that
either Roger or James could be Olivia’s father but chose to sign the
acknowledgment, thereby swearing or affirming that Roger was the father.
As was ultimately proven by the DNA testing, they were mistaken. The fact
was material because the knowledge that James was the biological father
necessarily would have affected their decision to sign an acknowledgment
claiming paternity under the penalty of perjury. See Material, Black’s Law
Dictionary (11th ed. 2019) (defining “material” as “[o]f such a nature that
knowledge of the item would affect a person’s decision-making; significant;
essential”).
D. James Did Not Waive His Right to Claim Paternity by Failing to
Register as a Putative Father.
¶27 Citing A.R.S. § 8-106.01(E) and (F), Roger argues James
waived his right to claim paternity by failing to file with the Arizona
Putative Father Registry within 30 days of the child’s birth. James’s failure
to file with the putative father’s registry did not bar his paternity claim.
A.R.S. § 8-106.01(E) provides that
[a] putative father who does not file a notice of a claim of
paternity as required under this section waives his right to be
5 We note that while such a mistake of fact is cause to set aside the
judgment at the request of a putative third-party father, the same mistake
of fact would not be sufficient grounds to set aside the judgment at the
request of a parent who signed the acknowledgment. See McQuillen, 249
Ariz. at 74, ¶ 17 (“[A]n innocent party may seek relief from a judgment
procured by the fraud of others.”).
6 We take judicial notice of the acknowledgment of paternity form that
became effective in August 2018 and is available on the Arizona
Department of Health Services Website. ADES, Acknowledgment of
Paternity Form, (August 2018) https://www.azdhs.gov/documents/licen
sing/vital-records/register-acknowledgement-paternity.pdf; Jarvis v. State
Land Dep’t, 104 Ariz. 527, 530 (1969), modified, 106 Ariz. 506 (1970), modified,
113 Ariz. 230 (1976) (taking judicial notice of the records of a state agency).
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Opinion of the Court
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 of the
following:
1. It was not possible for him to file a notice of a claim of
paternity within the period of time specified in subsection B
of this section.
2. He filed a notice of a claim of paternity within thirty days
after it became possible for him to file.
¶28 While James’s failure to file with the registry might have
prevented him from challenging adoption proceedings, Roger never
attempted to adopt Olivia. Therefore, because this case does not involve
adoption proceedings, A.R.S. § 8-106.01(E) is inapposite.
E. Roger Waived Any Argument that the Court Erred by Conducting
the Evidentiary Hearing in His Absence.
¶29 Roger also argues the trial court erred by taking evidence on
the paternity issue in Roger’s absence but cites no authority prohibiting the
superior court from holding a hearing in a party’s absence when the absent
party was adequately notified of the proceeding. Because the argument is
not supported by legal authority, we decline to address it further. State v.
Perez, 233 Ariz. 38, 41, ¶ 10 (App. 2013).
CONCLUSION
¶30 We affirm the court’s judgment of paternity in favor of James.
AMY M. WOOD • Clerk of the Court
FILED: AA
10