IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE TERMINATION OF PARENTAL RIGHTS AS TO M.N.
No. 1 CA-JV 22-0227
FILED 4-30-2024
Appeal from the Superior Court in Coconino County
No. S0300SV202100003
The Honorable Angela R. Kircher, Judge Pro Tempore
REVERSED AND REMANDED
COUNSEL
Harris & Winger PC, Flagstaff
By Chad Joshua Winger
Counsel for Appellant
McCarthy Weston PLLC, Flagstaff
By Philip McCarthy, Jr.
Counsel for Appellee Adoption Choices of Arizona
Coconino County Public Defender, Flagstaff
By Sandra L.J. Diehl
Counsel for Appellee Child
IN RE TERM OF PARENTAL RIGHTS AS TO M.N.
Opinion of the Court
OPINION
Judge Anni Hill Foster delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
F O S T E R, Judge:
¶1 M.N.’s father (“Father”) appeals the order terminating his
parental rights. Because Father completed genetic testing and was M.N.’s
presumed legal father at the time of the termination hearing, he was not a
“putative father” under the law. Accordingly, he was not subject to the
statutory requirement that a putative father file a notice of claim of
paternity within 30 days of the birth of the child. A.R.S. § 8-106.01. The court
knew of the genetic testing results and therefore erred by terminating his
parental rights based on a failure to register under A.R.S. § 8-106.01.
Accordingly, and for the following reasons, this Court reverses and
remands to the superior court.
FACTS AND PROCEDURAL HISTORY
¶2 Mother conceived M.N. with Father while she was in a
relationship with another man (“Boyfriend”). Mother and Father
communicated about the pregnancy. According to Father, he asked Mother
to live with him and offered to take a DNA test to determine paternity, but
Mother declined. Eventually, Boyfriend threatened Father, and Father
temporarily stopped communicating with Mother.
¶3 In March 2021, before M.N. was born, Mother and Boyfriend
decided to place M.N. up for adoption. They contacted a private adoption
agency, Adoption Choices of Arizona (“Choices”). Mother did not tell
Choices about Father and repeatedly affirmed that Boyfriend was M.N.’s
only possible father. Meanwhile, Father contacted Mother to ask about her
due date, which was the following month. Father offered her a place to stay,
which Mother declined.
¶4 A few weeks later, Mother gave birth to M.N. prematurely,
and Father visited the infant in the hospital. According to Father, he asked
the hospital for a DNA test but was told it could not perform the test.
¶5 The following day, Mother and Boyfriend signed adoption
consent forms through Choices. This same day, Choices learned about
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IN RE TERM OF PARENTAL RIGHTS AS TO M.N.
Opinion of the Court
Father. However, Mother told Choices that Father could not be M.N.’s
father and provided only his nickname with no other identifying
information.
¶6 In April 2021, Choices petitioned the juvenile court to
terminate Mother and Boyfriend’s parental rights to M.N. On April 23,
2021, Choices served Father notice of the pending adoption, starting the 30-
day clock for Father to file and serve his paternity action. See A.R.S. § 8-
106(G)(3).
¶7 On May 21, 2021, Father timely petitioned the family court to
establish paternity and decision-making authority over M.N. Father then
timely served the petition on Choices on May 24, 2021. That same day,
Choices amended its termination petition to include Father, alleging he
failed to file a paternity action within 30 days of being served notice of the
pending adoption. A.R.S. §§ 8-106(J), -533(B)(5). The record does not
indicate that Choices ever served Father with this amended petition, and
Choices later withdrew this allegation.
¶8 On September 15, 2021, Choices intervened in Father’s family
court case, and the family court ordered paternity testing. Father completed
testing, and the paternity results filed with the court confirmed by a
probability of 99.99% that Father was M.N.’s biological father. No one
challenged the veracity of the test. Afterwards, the family court stayed the
case pending resolution of Choices’ termination petition.
¶9 On December 2, 2021, Choices again amended its termination
petition to allege that Father had abandoned M.N., A.R.S. § 8-533(B)(1), and
that he had not filed a notice of paternity claim with the putative father’s
registry as required under A.R.S. § 8-106.01. On December 19, 2021, Choices
served Father with the second amended petition. The next month, the
juvenile court appointed Father counsel, but counsel did not move the court
for entry of a judgment of paternity. Cf. Albert L. v. Dep’t of Child Safety, 253
Ariz. 146, 149, ¶ 11 (App. 2022) (when the superior court has proper
jurisdiction over a matter, it also has “authority to rule on a paternity matter
relevant to the dependency”).
¶10 In February 2022, Choices moved for partial summary
judgment on the alleged termination grounds. Father was later appointed
new counsel, who then moved for a judgment of paternity, but the court
did not rule on the motion before the trial began. The court eventually
granted summary judgment in favor of Choices based only on Father’s
failure to register with the putative father’s registry. After trial on the issue
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IN RE TERM OF PARENTAL RIGHTS AS TO M.N.
Opinion of the Court
of M.N.’s best interests, the court terminated Father’s parental rights, and
Father timely appealed.1 This Court has jurisdiction under A.R.S. § 8-
235(A).
DISCUSSION
¶11 Father challenges the court’s order terminating his parental
rights, arguing that (1) the law distinguishes “potential” fathers from
“putative” ones, obviating Father’s obligation to register with the putative
father’s registry; (2) the statutes requiring him to both initiate paternity
proceedings and register with the putative father’s registry violate his
procedural and substantive due process rights; (3) his counsel was
ineffective by failing to obtain a paternity judgment in juvenile court; (4) the
court applied the wrong legal standard in analyzing the child’s best
interests and failed to weigh all the evidence; (5) the court failed to make
sufficient findings of fact or conclusions of law; and (6) the findings it made
contained critical factual errors.
¶12 This Court reviews interpretations of statutes, rules, and
constitutional issues de novo. Brenda D. v. Dep’t of Econ. Sec., 243 Ariz. 437,
442, ¶ 15 (2018). “[W]here the language is plain and unambiguous, courts
generally must follow the text as written” and will not resort to other
methods of statutory construction. Indus. Comm’n of Ariz. v. Old Republic Ins.
Co., 223 Ariz. 75, 77 (App. 2009) (quoting Canon Sch. Dist. No. 50 v. W.E.S.
Constr. Co., 177 Ariz. 526, 529 (1994) and citing Wells Fargo Credit Corp. v.
Tolliver, 183 Ariz. 343, 345 (App. 1995)). “Statutes that are…of the same
subject or general purpose [] should be read together and harmonized when
possible.” David C. v. Alexis S., 240 Ariz. 53, 55, ¶ 9 (2016) (citation omitted).
I. The Court Erred by Terminating Father’s Parental Rights Based on
his Alleged Failure to Comply with § 8-106.01.
¶13 In Arizona, when a person claims to be the father of a child,
the law requires that he file a notice of a claim of paternity before the birth
of the child or within 30 days after the birth. A.R.S. § 8-106.01. Failure to file
1 The court issued two final orders terminating Father’s parental rights, on
August 9 and August 24, 2022, respectively. Appellees point out that Father
appealed only the August 9 order. Nevertheless, Arizona Rule of Procedure
for the Juvenile Court 602(i)(10) incorporates Arizona Rule of Civil
Appellate Procedure 9(c), which allows an appellant to file a notice of
appeal before the final order issues. This Court therefore treats Father’s
notice of appeal as applicable to both final orders.
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Opinion of the Court
the notice results in a waiver of rights to be notified of any proceedings
regarding adoption, unless by clear and convincing evidence it is proven
that it was not possible to file the notice or he filed it as soon as possible
after the 30-day timeframe expired. Id. Section 8-533 provides that “any
person . . . that has a legitimate interest in the welfare of a child . . . may file
a petition for the termination of a parent-child relationship” on several
grounds, including: (6) That the putative father failed to file a notice of
claim of paternity as prescribed in § 8-106.01. A.R.S. § 8-533(B)(5)-(6). The
Arizona Supreme Court has defined a putative father as “a man who is or
claims to be the father of the child and whose paternity has not been
established.” David C., 240 Ariz. at 56-57, ¶ 17.
¶14 By statute, a mother is required to sign an affidavit listing all
“potential fathers” that must be filed with the court in an adoption
proceeding. A.R.S. § 8-106(F). A potential father is “a man, identified by the
mother in an affidavit, who is or could be the father of the child, but whose
paternity has not been established.” David C., 240 Ariz. at 56, ¶ 14. Notice
must be served on any potential fathers stating in part that the potential
father has a right to withhold consent to the adoption and it is his
responsibility to initiate paternity proceedings. A.R.S. § 8-106.01(G).
¶15 As David C. suggests, a man may be both a putative and a
potential father. 240 Ariz. at 58, ¶ 24. The common ground between the two
definitions is that “paternity has not been established.” But the rights and
responsibilities for each are quite different. For instance, a putative father
who fails to file with the registry waives all rights, and an adoption can
proceed without providing him notice. A.R.S. § 8-106.01(H). A potential
father, by contrast, is entitled to notice of an adoption action and an
opportunity to initiate proceedings under Title 25. A.R.S. § 8-106(G).
Reading these statutes together, once Mother identified Father as a
“potential father” the question of whether he filed a notice of claim of
paternity became moot and A.R.S. § 8-106.01(E) and A.R.S. § 8-533(B)(6)
were no longer applicable.
¶16 This Court has stated that paternity proceedings take
precedence in cases involving dependency. In re G.R., 255 Ariz. 444, 448,
¶ 21 (App. 2023). The same is true for private termination petitions. But,
when a putative father does not assert his rights or cannot be located, A.R.S.
§§ 8-106.01(H) and 8-533(B)(6) provide a mechanism for a termination to be
finalized. Those are not the facts in this case. Here, Father sought to assert
his rights as a potential father. Because this Court reads statutes together
and seeks to harmonize them, termination of Father’s rights under A.R.S.
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Opinion of the Court
§ 8-533(B)(6) was improper because it conflicted with his rights as a
potential father under A.R.S. § 8-106.
II. Genetic Testing Established that Father is M.N.’s Legally
Presumed Parent Under § 25-814(A)(2).
¶17 “A man is presumed to be the father of the child if . . .
[g]enetic testing affirms at least a ninety-five per cent probability of
paternity.” A.R.S. § 25-814(A)(2). This presumption may only be rebutted
by clear and convincing evidence. A.R.S. § 25-814(C).
¶18 Here, Father completed a court-ordered DNA test in
November 2021. Though the test results were not filed with the family court
until December 6, 2021, they confirmed the likelihood of his paternity of
M.N. at 99.99%. Father did not contest the results; thus, he no longer met
the definition of a putative father or potential father but was now the
presumed father. See A.R.S. § 25-814(A)(2); A.R.S. § 25-401(4) (excluding
from the definition of parent one whose paternity has not been established
under § 25-814); Ariz. R.P. Juv. Ct. 102(v) (same); A.R.S. § 8-106(A)(2)(c)
(court must obtain consent for adoption if father’s “paternity is established
under title 25, chapter 6, article 1”); Albert L., 253 Ariz. at 150, ¶ 16 (“One
may . . . ‘establish’ paternity under [A.R.S.] § 25-814.”). Father’s
presumptive paternity could only be rebutted by clear and convincing
evidence, A.R.S. § 25-814(C), and Choices never sought to do so.
¶19 Once the DNA test established Father as the “presumed
father,” he had the rights and responsibilities of a legal parent, not those of
a putative father. See A.R.S. § 25-817 (requiring a court to issue a temporary
order of support for a child following a genetic test affirming 95%
probability of paternity during the pendency of a judicial determination of
paternity); see also A.R.S. § 25-401(4) (legal parent means “a biological or
adoptive parent whose parental rights have not been terminated. Legal
parent includes a person whose paternity has been established pursuant to
§ 25-812 and 25-814.”); Ariz. R.P. Juv. Ct. 102(v) (“‘Parent’ means the child’s
biological, adoptive, or legal mother or father whose rights have not been
terminated. ‘Parent’ does not include a person whose paternity has not been
established pursuant to A.R.S. § 25-812 or § 25-814.”).
¶20 Because Father became M.N.’s “presumed father” upon the
filing of the results of the DNA test, the superior court erred by terminating
his rights under A.R.S. § 8-533(B)(6). Because Father prevails on this issue,
this Court need not address Father’s other arguments. See Fragoso v. Fell,
210 Ariz. 427, 430, ¶ 6 (App. 2005) (“Courts should decide cases on
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IN RE TERM OF PARENTAL RIGHTS AS TO M.N.
Opinion of the Court
nonconstitutional grounds if possible, avoiding resolution of constitutional
issues, when other principles of law are controlling and the case can be
decided without ruling on the constitutional questions.”).
CONCLUSION
¶21 For the foregoing reasons, this Court reverses the superior
court’s order terminating Father’s parental rights and remands for
proceedings consistent with this opinion.
AMY M. WOOD • Clerk of the Court
FILED: AA
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