IN THE
SUPREME COURT OF THE STATE OF ARIZONA
THOMAS COX,
Petitioner,
v.
HON. ADELE PONCE, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
MAKAYLA ESPLIN; PROSPECTIVE ADOPTIVE COUPLE,
Real Parties in Interest.
No. CV-20-0173-PR
Filed July 26, 2021
Special Action from the Superior Court in Maricopa County
The Honorable Adele Ponce, Judge
No. FC 2019-097629
AFFIRMED
Order of the Court of Appeals, Division One
Filed June 5, 2020
COUNSEL:
Sandra Slaton (argued), Kristin Roebuck Bethell, Horne Slaton, PLLC,
Scottsdale, Attorneys for Thomas Cox
Glenn D. Halterman (argued), Ellsworth Family Law, P.C., Mesa, Attorney
for Makayla Esplin
Brent Ellsworth, Brent D. Ellsworth, P.C., Mesa, Attorney for Prospective
Adoptive Couple
COX V. HON. PONCE/ESPLIN
Opinion of the Court
JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
BOLICK, LOPEZ, and MONTGOMERY joined. *
JUSTICE BEENE, Opinion of the Court:
¶1 In Arizona, statutory adoption proceedings require a mother
to notify the potential father of her intention to place the child for adoption.
The potential father must file a paternity action and serve the mother within
thirty days of receiving the mother’s notice if he wishes to be notified of
proceedings related to the child’s adoption or the termination of his
parental rights. See A.R.S. § 8-106(G), (J). Here, we address whether a
father’s failure to timely file a paternity action is excusable under equitable
principles. Because we hold that an untimely filed action is barred as a
matter of law, we affirm the superior court’s order dismissing the paternity
action.
BACKGROUND
¶2 In 2018, Thomas Cox (“Father”) and Makayla Esplin
(“Mother”) were in a relationship, which resulted in a pregnancy. During
her pregnancy, Mother decided to place the baby for adoption and
contacted Adoptive Couple. In August 2019, Mother moved out of the
home she shared with Father. Shortly thereafter, Father filed a claim of
paternity with the putative fathers registry pursuant to A.R.S. § 8-106.01
and retained an attorney to handle the matter.
¶3 On August 26, Adoptive Couple’s attorney spoke with the
paralegal for Father’s attorney. The content of this conversation is
disputed, but the paralegal believed that Adoptive Couple would “back out
* Although Justice Andrew W. Gould (Ret.) participated in the
oral argument in this case, he retired before issuance of this Opinion and
did not take part in its drafting.
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
gracefully” from the adoption proceedings if Father sent Adoptive Couple’s
attorney a letter expressing his intention to “be involved in the minor
child’s life.” Two days later, the paralegal sent Adoptive Couple’s attorney
a letter stating that Father would be asserting parental rights over the child
and intended to file a paternity action. After sending the letter, the
paralegal failed to calendar the deadline to file the paternity action.
¶4 On August 27, Mother served Father with notice of her
intention to place the child for adoption pursuant to § 8-106(G) and Father’s
attorney accepted service. The notice advised that to be able to withhold
consent to an adoption, Father would have to initiate paternity proceedings
and serve Mother within thirty days of completion of service of the notice.
The child was born on September 14.
¶5 On October 11, sixteen days after the deadline, Father filed a
paternity action. He was unable to serve Mother. Mother and Adoptive
Couple each filed a motion to dismiss the paternity action. After oral
argument, the trial court granted each party’s motion to dismiss. Father
then sought special action relief in the court of appeals, but the court
declined jurisdiction.
¶6 We granted review to consider whether equitable relief is
available to a father who failed to file a timely paternity action, a matter of
first impression for this Court. We have jurisdiction pursuant to article 6,
section 5(3) of the Arizona Constitution.
DISCUSSION
¶7 We review de novo an order granting a motion to dismiss
brought under Arizona Rule of Civil Procedure 12(b)(6). Abbott v. Banner
Health Network, 239 Ariz. 409, 412 ¶ 7 (2016). Here, the parties sought
dismissal under Arizona Rule of Family Law Procedure 29(a)(6). Because
Rule 29(a)(6) is the family law equivalent of Arizona Rule of Civil Procedure
12(b)(6), we apply de novo review. See Kline v. Kline, 221 Ariz. 564, 568–69
¶ 13 (App. 2009) (noting that law interpreting other statewide rules is
applicable when “the language of the family law rules is substantially the
same”). We also review de novo issues of law, including statutory
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
interpretation. BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC, 236
Ariz. 363, 365 ¶ 7 (2015).
I.
¶8 In Arizona, if a mother decides to place her child for adoption,
she must comply with the requirements set forth in § 8-106(G). Initially, the
mother must file and serve the potential father with notice of her intention
to place the child for adoption. § 8-106(G)(1). Along with the notice, the
mother must inform the potential father that, if he desires to withhold
consent to the adoption, he must “initiate paternity proceedings under Title
25” and “serve the mother within thirty days of completion of service.”
§ 8-106(G). In addition, the mother must notify the potential father that, if
he does not file a paternity action under Title 25 and serve the mother
within thirty days after completion of the service and pursue the action to
judgment, he cannot “bring[] or maintain[] any action to assert any interest
in the child.” § 8-106(G)(7).
¶9 If the father fails to comply with § 8-106(G)’s requirements,
§ 8-106(J) bars him from bringing or maintaining any action asserting any
interest in the child. This statute provides:
A potential father who fails to file a paternity action and who
does not serve the mother within thirty days after completion
of service on the potential father as prescribed in subsection
G of this section waives his right to be notified of any judicial
hearing regarding the child’s adoption or the termination of
parental rights and his consent to the adoption or termination
is not required.
¶10 In this case, Mother properly served Father with her notice of
intention to place the child for adoption on August 27. Father, however,
failed to timely file and serve Mother with a paternity action as required by
§ 8-106(J). Accordingly, pursuant to § 8-106(J), Father waived his right to
be notified of any hearing regarding the child’s adoption or the termination
of his parental rights and his consent to the adoption or termination of his
parental rights was not required.
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
¶11 In addition, A.R.S. § 25-804 requires the trial court to “dismiss
any proceeding that is barred pursuant to § 8-106, subsection J.” Because
Father failed to timely file and serve Mother with a paternity action, the trial
court based its order dismissing Father’s paternity action on §§ 8-106(J) and
25-804.
¶12 The controlling law in this case is clear. Once Father failed to
timely file and serve Mother with a paternity action, he waived his right to
be notified of any hearing regarding his child’s adoption, his consent to the
adoption was not required, and the trial court was obligated to dismiss
Father’s paternity action. §§ 8-106(J), 25-804. In addition, the trial court’s
order dismissing Father’s paternity action finds further support in Arizona
Rule of Family Law Procedure 40(j), which states, “[t]he court must dismiss
any proceeding that is barred under A.R.S. § 8-106(J).”
¶13 In light of this clear mandate, we must determine whether
principles of equity apply to provide relief from these statutory
requirements. We now turn to that issue.
II.
¶14 Whether principles of equity (such as excusable neglect and
equitable tolling) apply to provide relief in this case depends on the nature
of the statute. A statute of limitations “identif[ies] the outer limits of the
period of time within which an action may be brought to seek redress or to
otherwise enforce legal rights created by the legislature or at common law.”
Porter v. Spader, 225 Ariz. 424, 427 ¶ 7 (App. 2010). A statute of repose
(sometimes called a nonclaim statute) 1 likewise acts to extinguish legal
1 Statutes of repose and nonclaim statutes are technically different
types of limiting statutes. However, they both operate to terminate any
right to action after the passage of a certain time, so we treat them the same.
Compare 51 Am. Jur. 2d Limitation of Actions § 24 (“A statute of
repose . . . extinguishes the action, or terminates any right to action, after a
fixed period of time has elapsed.”), with 51 Am. Jur. 2d Limitation of Actions
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
rights if they are not enforced by a specific deadline. While both statutes of
limitations and statutes of repose act as deadlines, they differ in one
important way: equitable principles may provide relief only from deadlines
imposed by statutes of limitations. See CTS Corp. v. Waldburger, 573 U.S. 1,
9 (2014) (“One central distinction between statutes of limitations and
statutes of repose underscores their differing purposes. Statutes of
limitations, but not statutes of repose, are subject to equitable tolling . . . .
Statutes of repose, on the other hand, generally may not be tolled, even in
cases of extraordinary circumstances beyond a plaintiff’s control.”). In
Albano v. Shea Homes Limited Partnership, 227 Ariz. 121, 127 ¶¶ 23–24 (2011),
this Court explained:
[Statutes of limitations] generally begin to run after an injury
occurs and is (or reasonably should have been) discovered.
See, e.g., Walk v. Ring, 202 Ariz. 310, 315–16 ¶¶ 20–23 (2002).
But a statute of repose is intended “to establish a limit beyond
which no suit may be pursued,” and “sets a period of time
within which claims must be brought regardless of when the
cause of action may accrue.” Evans Withycombe, Inc. v. W.
Innovations, Inc., 215 Ariz. 237, 240 ¶ 12 (App. 2006) (quoting
Maycock v. Asilomar Dev., Inc., 207 Ariz. 495, 501 ¶ 28 (App.
2004)).
Thus, under statutes of repose, “a claim may be barred if it
does not accrue within the allowable statutory period.”
Maycock, 207 Ariz. at 501 ¶ 28. Although statutes of
limitations are generally considered procedural, see Hosogai v.
Kadota, 145 Ariz. 227, 231 (1985), a statute of repose defines a
substantive right, see Resolution Trust Corp. v. Olson, 768
F. Supp. 283, 285 (D. Ariz. 1991); see also Snyder v. Love, 153
P.3d 571, 573 (Mont. 2006) (observing that statutes of repose
are “substantive grants of immunity based on a legislative
§ 23 (A nonclaim statute is “jurisdictional, and . . . deprives a court of
jurisdiction, or the power to adjudicate a claim, if the claim is not timely
filed.”).
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
balance of the respective rights of potential plaintiffs and
defendants” (quotations omitted)).
¶15 No Arizona court has considered whether § 8-106(J) is a
statute of limitations or a statute of repose. However, in In re Adoption of
K.M., 31 N.E.3d 533 (Ind. Ct. App. 2015), the Indiana Court of Appeals
decided this issue in relation to Indiana Code § 31-19-9-18, that state’s
equivalent of A.R.S. § 8-106(J). Like § 8-106(J), I.C. § 31-19-9-18 dictates a
thirty-day deadline for a parent to contest an adoption. In both statutes, a
parent who fails to contest an adoption within thirty days loses the right to
contest it.
¶16 That court explained that ordinary statutes of limitations may
be waived and are subject to equitable tolling, but nonclaim statutes are not.
31 N.E.3d at 537. “While equitable principles may extend the time for
commencing an action under statutes of limitations, nonclaim statutes
impose a condition precedent to the enforcement of a right of action and are
not subject to equitable exceptions.” Id. at 538 (quoting In re Paternity of
M.G.S., 756 N.E.2d 990, 997 (Ind. Ct. App. 2001)). It then explained why I.C.
§ 31-19-9-18 was a statute of repose rather than a statute of limitations:
[T]he plain language of I.C. § 31-19-9-18 indicates that it is a
nonclaim statute. The language of the statute imposes a
condition precedent to the enforcement of a right, i.e., the
filing of a motion to contest a petition for adoption. If the
condition precedent is not met, the right of action is lost and
the adoption may not be challenged. The legislative intent to
take away a right of recovery is clear from the language
utilized. Further, we note that this interpretation of I.C.
§ 31-19-9-18 is consistent with the objective of “avoiding
unnecessary instability and uncertainty” in adoption
proceedings. Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d
1054, 1056 (Ind. 1992).
Id.
¶17 We find the Indiana Court of Appeals’ reasoning persuasive
and applicable to § 8-106(J) for two reasons. First, like the Indiana statute,
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
§ 8-106(J) requires the potential father to file and serve on the mother a
paternity action in order to preserve his right to be notified of any
subsequent proceeding regarding the child’s adoption. The failure to
satisfy this condition precedent divests the father of any further
involvement in the adoptive proceedings. Second, consistent with the
Indiana Court of Appeals’ determination, Arizona courts have held that a
statute of limitations may be waived and is subject to equitable principles
whereas these concepts do not apply to a nonclaim statute or a statute of
repose. Supra ¶ 14; see Andra R Miller Designs LLC v. US Bank NA, 244 Ariz.
265, 269 ¶ 11 (App. 2018) (explaining that a statute of limitations is a
personal privilege that a party can waive); Hosogai, 145 Ariz. at 231–33
(discussing the applicability of equitable tolling to statutes of limitations),
superseded by 1986 Ariz. Sess. Laws ch. 186, § 1 (2d Reg. Sess.); Ader v. Estate
of Felger, 240 Ariz. 32, 39 ¶ 18 (App. 2016) (“Unlike a statute of limitations,
a nonclaim statute is usu[ally] not subject to tolling and is not waivable.”
(quoting In re Estate of Van Der Zee, 228 Ariz. 257, 260 ¶ 18 (App. 2011)));
Sullivan v. Pulte Home Corp., 231 Ariz. 53, 58 ¶ 19–23 (App. 2012) (explaining
that equitable tolling does not apply to the construction statute of repose);
Munoz v. Ashcroft, 339 F.3d 950, 957 (9th Cir. 2003) (same (citing Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991))).
¶18 Moreover, the plain language of § 8-106(J) indicates that it is
a statute of repose. In interpreting a statute, our goal is to effectuate the
legislature’s intent. SolarCity Corp. v. Ariz. Dep’t of Revenue, 243 Ariz. 477,
480 ¶ 8 (2018). “When the plain text of a statute is clear and unambiguous,”
it controls unless an absurdity or constitutional violation would result.
State v. Christian, 205 Ariz. 64, 66 ¶ 6 (2003). The statute expressly states that
a potential father must file a paternity action and “serve the mother within
thirty days after” the mother serves notice of her intent to place the child
for adoption or he waives his right to contest the adoption. Like the Indiana
statute, § 8-106(J) “impose[s] a condition precedent to the enforcement of a
right,” making it a statute of repose rather than a statute of limitations. See
In re Adoption of K.M., 31 N.E.3d at 538. This interpretation is further
bolstered by § 25-804’s requirement that the court “dismiss any proceeding
that is barred pursuant to § 8-106, subsection J.”
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
¶19 Finally, this interpretation of § 8-106(J) as a strict deadline is
consistent with Arizona’s strong public policy favoring finality in
adoptions. This Court has acknowledged that “prompt finality that
protects the child’s interests in a stable, permanent placement—either with
a biological parent or an adoptive parent—is paramount.” Frank R. v.
Mother Goose Adoptions, 243 Ariz. 111, 115 ¶ 22 (2017). “The law favors rapid
placement so that the child can bond with those who will be the legal
parents and not with those from whom the child may be taken. This sound
policy benefits the child, the natural parents, the prospective adoptive
parents, and society.” Id. (quoting In re Pima Cnty. Juv. Severance Action No.
S-114487, 179 Ariz. 86, 97 (1994)).
¶20 Because § 8-106(J) is a statute of repose, it is not subject to
equitable exceptions. Father’s failure to timely file a paternity action is not
excusable under principles of equitable relief, and the untimely filed action
is barred as a matter of law.
¶21 This Court is not without sympathy for Father, but the clear
meaning of the statute must prevail. Arizona’s constitutional separation of
powers prohibits us from “judicially amending” a statute to reach a
particular result by interpreting its language to change an otherwise plain
and unambiguous provision. See Ariz. Const. art. 3 (the Arizona
Constitution divides the powers of government into three “separate and
distinct” departments and directs that “no one of such departments shall
exercise the powers properly belonging to either of the others”). This Court
will not recast a statute under the guise of interpreting it to avoid an
unpleasant result because such action would do violence to the law itself.
If there is a remedy in these circumstances, it lies with the legislature. This
Court is bound to apply the law as written and, therefore, we affirm the
dismissal of Father’s paternity action. In light of our decision, it is
unnecessary for us to address Father’s remaining arguments. In the
exercise of our discretion, we decline to award Mother and Adoptive
Couple attorney fees and legal costs.
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COX V. HON. PONCE/ESPLIN
Opinion of the Court
CONCLUSION
¶22 Father did not file a paternity action and serve it on Mother
within thirty days of receiving the notice of adoption. Therefore, pursuant
to §§ 8-106 and 25-804, Father’s consent was no longer required, and he
waived his right to be notified of any proceeding related to the child’s
adoption. The trial court did not err in granting the motion to dismiss his
paternity action; the order dismissing Father’s paternity action is affirmed.
10