David C., Kim C. v. Alexis S., A.C.

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
DAVID C., KIM C.,
Appellants,
v.
ALEXIS S., A.C.,
Appellees.
No. CV-15-0302-PR
Filed August 2, 2016
Appeal from the Superior Court in Maricopa County
The Honorable Annielaurie Van Wie, Judge Pro Tem
No. JA47249
AFFIRMED
Opinion of the Court of Appeals, Division One
238 Ariz. 174, 358 P.3d 595 (App. 2015)
VACATED
COUNSEL:
Robert D. Rosanelli (argued), Phoenix, Attorney for David C. and Kim C.
David W. Bell (argued), Higley, Attorney for Alexis S.
JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE TIMMER,
and JUSTICE BOLICK joined.
JUSTICE BRUTINEL, opinion of the Court:
¶1 Petitioners David C. and Kim C., the proposed adoptive
parents, seek to reinstate their adoption of A.C., arguing that the failure of
Alexis S. (“Father”) to timely register as a putative father under A.R.S. § 8-
106.01(E) precludes his paternity case and his right to contest the adoption.
Because Father timely filed and served a paternity action in compliance
with A.R.S. § 8-106(J), we hold that he preserved his right to establish
DAVID C. V. ALEXIS S.
Opinion of the Court
paternity despite his failure to strictly comply with the putative father
registration requirement.
I. BACKGROUND
¶2 A.C. was conceived in January 2013. The parents separated
two months later and Mother refused further contact with Father. Aware
of Mother’s pregnancy and wanting to be involved in his child’s life, Father
unsuccessfully attempted to reestablish contact. Even though she knew the
identity of the father—and of his interest in parenting—at the time of A.C.’s
birth, Mother signed an affidavit of paternity falsely stating that A.C.’s
father was unknown. She also signed a consent to adoption in favor of
Petitioners, and A.C. was released into their care.
¶3 In accordance with A.R.S. § 8-106.01(H), thirty days after
A.C.’s birth Petitioners searched Arizona’s putative fathers registry and
found no notice of claim of paternity associated with A.C. They filed a
petition to adopt A.C. and, beginning on November 25, 2013, published a
“John Doe” notice of the pending adoption.
¶4 Coincidently, on that same day Father filed a paternity action,
having learned of the child’s birth and gender. He served Mother two days
later, but she never informed Petitioners of the paternity case. Unaware of
the pending paternity action, the juvenile court granted A.C.’s adoption by
Petitioners.
¶5 Father learned of the adoption in February 2014 and
immediately amended his paternity petition to include previously
unknown information about A.C. (name, place of birth, etc.). Petitioners
moved to dismiss the paternity case, and Father moved to set aside the
adoption. Paternity testing established Father as A.C.’s biological father.
Despite Father having never filed a notice of claim of paternity with the
putative fathers registry as required by A.R.S. § 8-106.01, the juvenile court
set aside the adoption, concluding that Father had timely filed and served
his paternity action. The court found that he was entitled to notice of the
adoption proceedings under A.R.S. § 8-111(5) and that the lack of notice
violated his right to due process of law.
¶6 The court of appeals affirmed. David C. v. Alexis S., 238 Ariz.
174, 179 ¶ 22, 358 P.3d 595, 600 (App. 2015). It reasoned that Father filed
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Opinion of the Court
and served a paternity action on Mother within two days of the initial John
Doe publication and then diligently pursued that case. Id. Accordingly,
Father “retained the right to assert his parental rights under § 8-106(G)”
even though he failed to register as required by § 8-106.01(A)-(B). Id. The
court of appeals distinguished Marco C. v. Sean C., 218 Ariz. 216, 221 ¶ 18,
181 P.3d 1137, 1142 (App. 2008), in which a different panel of the court held
that failure to register with the putative fathers registry within thirty days
of the child’s birth rendered a biological father’s consent to his child’s
adoption unnecessary. David C., 238 Ariz. at 178 ¶¶ 20-21, 358 P.3d at 599.
And the court disagreed with Marco C. “insofar as it holds that filing with
the putative fathers registry is a necessary precondition in all cases in which
a father asserts his parental rights.” Id. at 178 ¶ 21, 358 P.3d at 599.
¶7 We granted review to consider the interaction between A.R.S.
§§ 8-106(G) and 8-106.01(E) and to resolve the conflict in the court of
appeals’ opinions. We have jurisdiction pursuant to article 6, section 5(3)
of the Arizona Constitution and A.R.S. § 12-120.24.
II. DISCUSSION
¶8 We review an adoption order for an abuse of discretion, Leslie
C. v. Maricopa Cnty. Juvenile Court, 193 Ariz. 134, 135, 971 P.2d 181, 182 (App.
1997), and issues of law, including statutory interpretation, de novo, BMO
Harris Bank, N.A. v. Wildwood Creek Ranch, LLC, 236 Ariz. 363, 365 ¶ 7, 340
P.3d 1071, 1073 (2015).
¶9 When a statute is unambiguous, “we apply its terms without
resorting to other tools of statutory interpretation, unless doing so leads to
impossible or absurd results.” Fleming v. State Dept. of Public Safety, 237
Ariz. 414, 417 ¶ 12, 352 P.3d 446, 449 (2015) (quoting Orca Commc'ns
Unlimited, LLC v. Noder, 236 Ariz. 180, 182 ¶ 9, 337 P.3d 545, 547 (2014)).
Statutes that are in pari materia—those of the same subject or general
purpose—should be read together and harmonized when possible. State v.
Jones, 235 Ariz. 501, 502 ¶ 6, 334 P.3d 191, 192 (2014) (“When two statutes
conflict, we adopt a construction that reconciles them whenever possible,
giving force and meaning to each.”).
¶10 Adoption proceedings are governed by Title 8. Paternity
actions, however, are governed by Title 25. The father has the right to bring
a paternity action, A.R.S. § 25-803, and the paternity action may be
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Opinion of the Court
instituted during the pregnancy or after the child is born, but the time for
filing is limited by A.R.S. § 8-106(J). A.R.S. § 25-804. Under Title 8, the
biological father of the child to be adopted is entitled to notice of the filing
of the adoption petition. See generally A.R.S. § 8-106. This notice gives the
father the opportunity to file an action to establish his paternity and protect
his right to parent the child. A biological father who initiates a paternity
action is also entitled to notice of the hearing on the petition to adopt. A.R.S.
§ 8-106(A)(5).
¶11 The entry of a decree of adoption, after a properly noticed
hearing, terminates the biological father’s parental rights. A.R.S. § 8-117(B).
But the juvenile court may not grant an adoption unless the child’s father
consents, if his paternity has been established under Title 25. A.R.S. § 8-
106(A)(2)(c). Father did not consent to A.C.’s adoption and has established
in his paternity action that he is A.C.’s biological father.
¶12 The question in this case is whether a father who timely files,
serves, and successfully pursues a paternity action under Title 25, but who
fails to register as a putative father under A.R.S. § 8-106.01, is entitled to
notice of the adoption hearing or instead waives such notice and his right
to contest the adoption. The answer to the question depends on the
interplay between A.R.S. §§ 8-106(G) and 8-106.01(E).
¶13 A.R.S. §§ 8-106(G) and 8-106.01 differentiate between persons
who are entitled to notice of the filing of the adoption proceeding and
persons who are entitled to notice of the adoption hearing. Legal fathers
and fathers who have timely filed a paternity action are entitled to notice of
the adoption hearing. A.R.S. § 8-111. A legal father is one who was married
to the mother between the time of conception and birth, has adopted the
child, or has legally established paternity. See A.R.S. § 8-106(A)(2). A legal
father is not only entitled to notice of the adoption hearing; he must
affirmatively consent to the adoption. A.R.S. § 8-106(A). Although Father
later established in his paternity action that he is A.C.’s biological father and
that he did not consent to her adoption, he was not the legal father when
the adoption petition was filed.
¶14 There are also two categories of fathers who are entitled to
notice of the filing of adoption proceedings. A.R.S. § 8-106(G) requires
notice to potential fathers. 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
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Opinion of the Court
paternity has not been established. A.R.S. § 8-106(F). Section 8-106
provides:
G. Notice [of a pending adoption petition] shall be served on each
potential father as provided for the service of process in civil actions.
The notice shall be substantially in the form prescribed in subsection
I of this section and shall inform the potential father of all of the
following:
...
7. That the potential father’s failure to file a paternity action pursuant
to title 25, chapter 6, article 1, and to serve the mother and proceed
to judgment in the paternity action as prescribed by this section, bars
the potential father from bringing or maintaining any action to assert
any interest in the child.
¶15 Under § 8-106(F) and (G), Father was a potential father, albeit
unidentified by the Mother. Section 8-106(G) requires that notice of the
adoption petition be given to any potential father to provide him an
opportunity to establish paternity. The form of notice required by A.R.S.
§ 8-106(I) recognizes that potential fathers are to be identified by the
mother. When, as here, the mother lies about the father’s identity, the
statutory scheme breaks down, but the mother’s deceit does not deprive a
potential father of his status as such or of the right to notice.
¶16 A party seeking to adopt a child must serve notice on all
potential fathers. A potential father is advised by such notice that he must
file a paternity action if he wants to contest the adoption. A.R.S. § 8-106(G),
(I). But because Mother failed to inform either the court or Petitioners of
Father’s existence, Petitioners could not serve notice on him except by
publication.
¶17 Finally, A.R.S. § 8-106.01 provides for notice to a putative father
who registers as such. A putative father is a man who is or claims to be the
father of the child and whose paternity has not been established. See A.R.S.
§ 8-106.01(A). Under the putative fathers registry provisions of A.R.S. § 8-
106.01(A) and (B), “[a] person who is seeking paternity, who wants to
receive notice of adoption proceedings and who is the father or claims to be
the father of a child,” within thirty days after the child’s birth, “shall file
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Opinion of the Court
notice of a claim of paternity” with the Department of Health Services’
(“DHS”) registrar of vital statistics.
¶18 Prospective adoptive parents are required to provide the
court with a certificate from DHS stating that there was no record of a filing
pertaining to the child being adopted. A.R.S. § 8-106.01(H). When a notice
of claim of paternity is found, notice of adoption proceedings and the
father’s rights and responsibilities must be served on the putative father
and the father must file a paternity action if he wants to protect his rights,
as required under A.R.S. § 8-106(G). Father did not register with the
putative fathers registry.
¶19 Both potential and putative fathers waive their rights by
inaction. Further, both A.R.S. §§ 25-806(C) and 8-106.01(B) provide
relatively short time frames for the potential father to act to protect his
rights, recognizing that children require permanent, stable homes. S.B.
1287, 54th Leg., 2002 Reg. Sess. (Ariz. 2002) (Fact Sheet). Under § 8-106(J):
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 . . . and his consent to the adoption . . . is not
required.
¶20 There is also a waiver provision in § 8-106.01(E) which states:
E. A putative father who does not file a notice of a claim of paternity
as required under this section waives his right to be 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.
Adopting the court of appeals’ logic in Marco C., Petitioners argue that
under that subsection Father waived any right to notice of the adoption
hearing because he failed to comply with the registry requirements of § 8-
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106.01(A)-(B), and consequently, he was not entitled to contest the adoption
petition.
¶21 The timely filing of a paternity action entitles a putative or
potential father to notice of the hearing on the adoption petition. A.R.S. § 8-
111. Failure to file a paternity action under A.R.S. § 25-806 results in the
father waiving his right to notice of the adoption hearing. A.R.S. § 8-106(J).
Such waiver also results even if the father timely files a § 8-106.01 claim of
paternity but then fails to file a paternity action after receiving notice of the
adoption proceeding under A.R.S. § 8-106.01(G). But neither § 8-106 nor
§ 8-106.01 bars a father from bringing a paternity action as long as he does
so within thirty days after receiving notice of the adoption proceeding. The
statutes only provide that failure to comply waives the potential father’s
right to notice of hearings, and his consent to the adoption is not required,
allowing the adoption to proceed. A.R.S. § 8-106(J).
¶22 We agree with the court of appeals that the registry
requirement in A.R.S. § 8-106.01 supplements but does not supplant the
provisions of the adoption statute, A.R.S. § 8-106. The two statutes provide
different ways of recognizing fathers’ parental rights and relieving
prospective adoptive parents from the obligation of obtaining a father’s
consent to the adoption. Section 8-106(G) provides notice when the mother
identifies potential fathers, and § 8-106.01 is intended to provide notice
when the putative father identifies himself. A potential father is entitled to
notice under § 8-106(G) whether or not he registers with the putative fathers
registry. A putative father must timely register to receive notice of the
adoption proceedings or he waives notice and his consent is not required
to finalize the adoption. In either case, a father is entitled to bring an action
to establish paternity if he does so within thirty days of the A.R.S. § 8-106(G)
notice. This reading harmonizes A.R.S. §§ 8-106 and 8-106.01.
¶23 As noted above, however, Title 8 imposes substantial time
limitations on a biological father’s ability to assert his paternity. If the
mother was truthful and a potential father was provided notice and then
complied with A.R.S. § 8-106(G), he would be entitled to contest the
adoption even if he failed to register. When a potential father was not
personally served with notice because of the mother’s wrongdoing but
nonetheless complied with A.R.S. § 8-106(G), but not A.R.S. § 8-106.01,
requiring registration serves no purpose other than to reward mother’s
conduct by precluding the potential father from contesting the adoption.
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The plain language of § 8-106.01 waives a non-filing father’s right to notice
of the adoption and bars a paternity action by a father who fails to file a
paternity action within thirty days of the § 8-106(G) notice. If the legislature
had also intended to make registration under § 8-106.01 a threshold
prerequisite for establishing paternity it would have expressly said so.
¶24 As previously noted, Mother falsely stated that the father was
unknown. But Mother’s deceitful act does not change Father’s status. Thus,
Father is both a potential father—entitled to notice—and a putative father.
Petitioners served Father by publication of a John Doe notice pursuant to
§ 8-106(G). By coincidence, Father complied with the statutory
requirements set forth in that notice by timely filing his paternity action and
serving Mother. Therefore, he did not lose his rights to notice of the
adoption hearing or to decline his consent to the adoption. A.R.S. § 8-106(J).
Because Father ultimately established paternity, per § 8-106(A)(2)(c), the
juvenile court correctly set aside the adoption order.
¶25 To the extent Marco C. suggests that failing to timely register
with the putative fathers registry automatically bars a potential father from
pursuing a paternity action and establishing paternity, or obviates the need
for his consent to adoption, 218 Ariz. at 221 ¶ 18, 181 P.3d at 1142, we
disagree. But we agree with the result in Marco C. because the biological
father in that case also failed to timely serve the paternity action on the
mother, as required by A.R.S. § 8-106(G)(3).
III. CONCLUSION
¶26 A father who timely files a paternity action within thirty days
of service by publication of the A.R.S. § 8-106(G) notice and timely serves
that action on the mother is not precluded from establishing paternity and
does not waive his right to contest the child’s adoption, merely because he
did not file a claim of paternity under the putative fathers registry statute,
A.R.S. § 8-106.01. We vacate the court of appeals’ opinion and affirm the
juvenile court’s decision granting Father’s motion to set aside the adoption.
8