IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ALBERT L.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.T.,
Appellees.
No. 1 CA-JV 21-0126
FILED 4-19-2022
Appeal from the Superior Court in Maricopa County
No. JD37099
The Honorable Karen Mullins, Judge Retired
REVERSED AND REMANDED
COUNSEL
Rideout Law PLLC, Tempe
By Steven Dorr Eckhardt, Wendy Marcus
Counsel for Appellant
Arizona Attorney General's Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
ALBERT L. v. DCS, B.T.
Opinion of the Court
OPINION
Judge James B. Morse Jr. delivered the opinion of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.
M O R S E, Judge:
¶1 Albert L. ("Father") appeals from the superior court's order
dismissing him from dependency proceedings after finding that DNA
results rebutted a presumption of paternity created by his signed
acknowledgment of paternity under A.R.S. § 25-814(C). Because we hold
the superior court lacked statutory authority to disestablish Father's
paternity, we reverse and remand for proceedings consistent with this
opinion.
FACTS AND PROCEDURAL BACKGROUND
¶2 Erica Y. ("Mother") gave birth to a child in 2012, and,
according to Father, he cared for the child as his daughter until these
proceedings began. In 2014, Father and Mother filled out an
acknowledgment of paternity ("AOP") and submitted it to the Arizona
Department of Health Services' Office of Vital Records. Father and Mother
used an official AOP form from the Arizona Department of Economic
Security but left blank the box titled "Soc. Sec. No." under "Father's
information." Nonetheless, the Office of Vital Records accepted the AOP
and placed Father's name on the child's birth record.
¶3 In 2019, Mother and Father were arrested and incarcerated,
leaving no one to care for the child. The Department of Child Safety ("DCS")
then filed a dependency petition. In its original petition, DCS
acknowledged that Father had "established his paternity . . . by
acknowledgement of paternity."
¶4 Later that year, the child's guardian ad litem ("GAL") asked
the superior court to order Father to submit to a paternity test, and the court
eventually granted that request. Based on the test results, in October 2019,
DCS moved to set aside the AOP, remove Father's name from the child's
birth record, and dismiss him from the dependency. The GAL joined the
motion, and Father objected. The court set an evidentiary hearing on the
issue, which was delayed more than a year for various reasons.
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ALBERT L. v. DCS, B.T.
Opinion of the Court
¶5 After the hearing, the court ruled the AOP lacked the force
and effect of a judgment under A.R.S. § 25-812(D), but nevertheless denied
DCS's motion. In its order ("November 2020 order"), the court reasoned
that, because Father failed to include his Social Security number as required
under § 25-812(A)(1), the AOP created only a rebuttable presumption that
he was the child's father under A.R.S. § 25-814(A)(4).
¶6 DCS then moved for a judicial determination of competing
paternity presumptions under A.R.S. § 25-814 and for an order removing
Father from the child's birth record and dismissing him from the
dependency. The GAL joined the motion, and Father objected. After
another evidentiary hearing, the court found that DCS had rebutted
Father's presumption of paternity by clear and convincing evidence
("March 2021 order"). The court then dismissed Father from the
dependency but declined to order Father removed from the child's birth
record. Father appealed.
¶7 On appeal, this Court requested, and received, supplemental
briefing about the superior court's subject-matter jurisdiction to disestablish
Father's paternity in the absence of a competing claim to paternity. We have
appellate jurisdiction under A.R.S. § 8-235.
DISCUSSION
¶8 Father raises several challenges to the superior court's March
2021 order. Dispositive here is Father's argument that the court erred in
disestablishing his paternity under A.R.S. § 25-814(C) without a concurrent
claim to establish paternity in another individual.1
I. Subject-Matter Jurisdiction.
¶9 Father asserts that the superior court lacked subject-matter
jurisdiction to enter the orders regarding his paternity. He argues that legal
actions to determine paternity are governed by Title 25 ("Marital and
Domestic Relations") and, if no party seeks to establish paternity, those
actions may not be raised in a dependency pending under Title 8 ("Child
Safety"). We disagree with Father's jurisdictional argument.
1 Because we resolve the appeal based on the March 2021 order, we
need not address Father's arguments pertaining to the November 2020
order. See Schwab v. Matley, 164 Ariz. 421, 422 (1990) (stating where one
issue is dispositive, a court need not reach other issues presented on
appeal).
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ALBERT L. v. DCS, B.T.
Opinion of the Court
¶10 Subject-matter jurisdiction "refers to a court's statutory or
constitutional power to hear and determine a particular type of case." State
v. Maldonado, 223 Ariz. 309, 311, ¶ 14 (2010). It is not synonymous with a
"court's inability to enter a valid judgment," see Ader v. Estate of Felger, 240
Ariz. 32, 44, ¶ 42 (App. 2016), but rather is "the power to deal with the
general abstract question, to hear the particular facts in any case relating to
this question, and to determine whether or not they are sufficient to invoke
the exercise of that power," Sil-Flo Corp. v. Bowen, 98 Ariz. 77, 81 (1965)
(quoting Foltz v. St. Louis & S.F. Ry. Co., 60 F. 316, 318 (8th Cir. 1894)).
¶11 Here, the superior court's jurisdiction was properly invoked
once DCS filed for a dependency. See A.R.S. § 8-202(B) ("The juvenile court
has exclusive original jurisdiction over all proceedings brought under the
authority of this title except for delinquency proceedings."); A.R.S. § 25-801
("The superior court has original jurisdiction in proceedings to establish
maternity or paternity."). And, because it had jurisdiction, the superior
court had authority to rule on a paternity matter relevant to the
dependency. See Maricopa Cnty. Juv. Action No. JD-05401, 173 Ariz. 634, 641
(App. 1993) ("A juvenile court may determine issues under Title 25 that are
properly before it if its jurisdiction has been properly invoked."); see also
Peterson v. Speakman, 49 Ariz. 342, 348 (1937) (noting the superior court is
one court, and "[t]he jurisdiction of the court . . . is that of the whole court,
and not of one judge nor division thereof"). The court had the power to
hear the general abstract question of paternity.
II. Statutory Authority.
¶12 Because the superior court had subject-matter jurisdiction, the
question is whether the superior court lacked authority under A.R.S. § 25-
814 to issue the March 2021 order. Any order that exceeded the court's
statutory authority would be voidable. See State v. Bryant, 219 Ariz. 514,
518, ¶ 14 (App. 2008) ("[A]n order is voidable, rather than void, when the
trial court has subject matter jurisdiction but errs in issuing an order.").
¶13 This Court reviews issues of law, including statutory
interpretation, de novo. David C. v. Alexis S., 240 Ariz. 53, 55, ¶ 8 (2016).
Our primary task is to give effect to the legislature's intent. See Redgrave v.
Ducey, 251 Ariz. 451, 456-57, ¶ 22 (2021). We apply the plain wording of the
statute when it is clear and unambiguous. Andrew R. v. Ariz. Dep't of Econ.
Sec., 223 Ariz. 453, 457, ¶ 16 (App. 2010). We also "seek to harmonize and
attain consistency among related statutory provisions in the context of the
overall statutory scheme." Id.
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ALBERT L. v. DCS, B.T.
Opinion of the Court
¶14 In the dependency proceedings, DCS made allegations that
may ultimately justify terminating Father's parental rights. However, the
superior court dismissed Father from the dependency proceedings solely
based upon its finding that DCS "presented clear and convincing evidence
under A.R.S. § 25-814(C) to rebut the presumption under A.R.S. § 25-
814(A)(4) that [Father] is the father of the Child." Section 25-814(A) states
that a "man is presumed to be the father of the child if . . . [a] notarized or
witnessed statement is signed by both parents acknowledging paternity" or
"[g]enetic testing affirms at least a ninety-five per cent probability of
paternity." Section (C) then states the following:
Any presumption under this section shall be rebutted by clear
and convincing evidence. If two or more presumptions
apply, the presumption that the court determines, on the
facts, is based on weightier considerations of policy and logic
will control. A court decree establishing paternity of the child
by another man rebuts the presumption.
¶15 DCS responds to Father's argument that the superior court
erred in disestablishing his paternity by arguing that Father "never
established paternity" under A.R.S. § 25-812. While A.R.S. § 25-812(C) and
(D) provide that a completed and filed AOP has the same force and effect
as a superior court judgment, DCS's argument fails because it presumes
Father's only claim to paternity was through the "force and effect [of] a
judgment" under § 25-812. One may also "establish" paternity under § 25-
814. See A.R.S. § 25-401(4) ("Legal parent does not include a person whose
paternity has not been established pursuant to [A.R.S.] § 25-812 or 25-814");
McLaughlin v. Jones, 243 Ariz. 29, 36 (2017) (noting a "presumptive father
under § 25-814(A)(1) must pay child support unless clear and convincing
evidence shows 'paternity was established by fraud, duress or material
mistake of fact.'" (emphasis added) (quoting A.R.S. § 25-503(F))). Thus,
whether the court lacked authority to disestablish paternity pursuant to
A.R.S. § 25-814 does not turn on whether Father had established paternity
via a judgment under A.R.S. § 25-812 or a rebuttable presumption of
paternity under A.R.S. § 25-814(A)(4).2
2 Father filed the AOP in 2014. If it were entitled to the force and effect
of a judgment under A.R.S. § 25-812, it could be challenged "only in
exceptional circumstances, such as fraud on the court." Johnson v. Edelstein,
252 Ariz. 230, 231-32, ¶ 2 (App. 2021) (citing A.R.S. § 25-812(E)). Because
5
ALBERT L. v. DCS, B.T.
Opinion of the Court
¶16 Because testing only showed that Father was not the genetic
parent, DCS has not established any competing presumption. See A.R.S.
§ 25-814(A)(2) (providing that a man is presumed to be the father of a child
if "genetic testing affirms at least a ninety-five per cent probability of
paternity" (emphasis added)). Thus, the issue is whether, in the context of
a Title 8 dependency proceeding, A.R.S. § 25-814(C) authorizes the superior
court to disestablish Father's paternity in the absence of a competing claim
of paternity and solely based on the results of Father's paternity test. DCS
argues that A.R.S. § 25-814(C) applies because the statute specifies a
procedure a court should follow "if two or more presumptions apply," and
implicitly acknowledges the court's authority to rule in a situation in which
there is no other claim to paternity and no competing presumption. We
agree that the language of A.R.S. § 25-814(C) contemplates circumstances in
which there may be only one paternity presumption as between two
paternity claims. That does not mean, however, that DCS's interpretation
is correct.
¶17 DCS focuses on the word "if" in A.R.S. § 25-814(C), but that
language must be read "in the context of related provisions and of the
overall statutory scheme" with a goal of achieving consistency among
related provisions. Goulder v. Ariz. Dep't of Transp., 177 Ariz. 414, 416 (App.
1993), aff'd, 179 Ariz. 181 (1994). As part of the context, we will consider "a
contemporaneous preamble or statement of purpose and intent . . . even
where the text is not ambiguous." Redgrave, 251 Ariz. at 457, ¶ 22. Title 25's
express purpose is "[t]o promote strong families" and that "absent evidence
to the contrary, it is in a child's best interest . . . [t]o have substantial,
frequent, meaningful and continuing parenting time with both parents" and
"[t]o have both parents participate in decision-making about the child."
A.R.S. § 25-103(A)(1), (B); see also McQuillen v. Hufford, 249 Ariz. 69, 72-73,
¶¶ 10-11 (App. 2020) (noting in the context of Title 25 proceedings, "the
legislature has unambiguously expressed a preference for finality in
paternity determinations — however obtained").
¶18 Statutes within Title 25 enable individuals to assume the legal
duties of parenthood while gaining fundamental protections under the law.
See A.R.S. § 8-531(4), (5) (listing rights and responsibilities of a legal
custodian of a child); McLaughlin, 243 Ariz. at 36, ¶ 29 ("A primary purpose
of the marital paternity presumption is to ensure children have financial
support from two parents."); Steward v. Superior Court, 163 Ariz. 227, 229
we find for Father on other grounds, we need not decide whether the AOP
in this case satisfied the requirements of A.R.S. § 25-812.
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ALBERT L. v. DCS, B.T.
Opinion of the Court
(App. 1989) (noting parents' fundamental liberty interest in the care,
custody, and management of their child). Consistent with that purpose,
Title 25 confers on the superior court "original jurisdiction in proceedings
to establish maternity or paternity." A.R.S. § 25-801 (emphasis added); see
also A.R.S. § 25-806 (requiring petitions to commence paternity proceedings
to allege "the respondent is the father of the child or children"). The use of
the word "establish" is repeated in several other provisions in Chapter 6 of
Title 25, entitled "Maternity and Paternity Proceedings." See, e.g., A.R.S.
§§ 25-802; -803(A), -807(A).
¶19 Disestablishing a person's paternity in the absence of a
competing paternity claim and solely based on a negative paternity test is
the very opposite of A.R.S. § 25-801's express directive conferring
jurisdiction on the superior court to "establish" paternity. "Context is a
primary determinant of meaning." State v. Ariz. Bd. of Regents, CV-21-0134-
PR, --- Ariz. ---, ---, ¶ 14 (April 5, 2022) (quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 167 (2012)). Thus, § 25-
814(C) must be construed to promote the establishment of paternity and
resolve competing claims of paternity. Authorizing a court to disestablish
paternity in the manner attempted here, by rebutting a long-standing
presumption without a competing paternity claim, is inconsistent with the
context and purpose of the statutory scheme.
¶20 In Title 8, the legislature created a detailed structure under
which DCS, or an individual, may terminate the rights of a parent that a
court has found to be unfit. Interpreting A.R.S. § 25-814(C) as DCS suggests
would allow termination where a parent is the only father the child knows
and has cared for a child for years, without any inquiry into parental fitness
or the child's best interests.3 While DCS has made serious allegations
regarding Father's unfitness, we express no opinion on the merits of the
underlying dependency proceedings. Those allegations must be
adjudicated in manner that complies with due process. See Santosky v.
Kramer, 455 U.S. 745, 753 (1982) (holding that a parents' fundamental liberty
interest in the care, custody, and management of their children "does not
evaporate simply because they have not been model parents or have lost
3 If we adopted DCS's interpretation, a mother who knows that her
husband or ex-husband is not the child's biological father could use Title 25
and DNA testing to disestablish long-standing paternity, without any
showing of parental unfitness or regard for the child's best interests. We
presume the legislature did not intend such a result. See Patches v. Indus.
Comm'n, 220 Ariz. 179, 182, ¶ 10 (App. 2009) (encouraging courts to
construe statutes to avoid "absurd or unconstitutional results").
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ALBERT L. v. DCS, B.T.
Opinion of the Court
temporary custody of their child to the State"); Alma S. v. Dep't. of Child
Safety, 245 Ariz. 146, 150, ¶ 13 (2018) (stating that a court must find
termination of parental rights will be "in the child's best interests" such that
"(1) the child will benefit from severance; or (2) the child will be harmed if
severance is denied"); Pima Cnty. Juv. Severance Action No. S-114487, 179
Ariz. 86, 93 (1994) ("[P]arents with an existing parental relationship, either
in fact or law, are entitled to the highest constitutional protection.").
¶21 Accordingly, we hold that, within a Title 8 dependency
proceeding initiated by DCS, A.R.S. § 25-814(C) does not authorize the
superior court to disestablish an individual's long-standing presumptive
paternity based solely on a negative paternity test and in the absence of
another competing paternity claim.
CONCLUSION
¶22 For the foregoing reasons, we reverse the superior court's
March 2021 order disestablishing Father's paternity and dismissing him
from the dependency. We remand this case for further proceedings
consistent with this opinion.
AMY M. WOOD • Clerk of the Court
FILED: AA
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