In Re Dependency as to G.R.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE DEPENDENCY AS TO G.R.
No. 1 CA-JV 22-0271
FILED 6-27-2023
Appeal from the Superior Court in Maricopa County
No. JD42120
The Honorable Gregory Como, Judge
VACATED AND REMANDED
COUNSEL
Law Office of H. Clark Jones, LLC, Mesa
By Clark Jones
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer L. Thorson
Counsel for Appellee Department of Child Safety
OPINION
Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.
IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
M c M U R D I E, Judge:
¶1 Adrian P. appeals from the juvenile court’s order adjudicating
his alleged son, George,1 dependent. We hold that the juvenile court erred
by adjudicating George dependent as to Adrian without first determining
parentage. We vacate the order and remand for proceedings consistent with
this opinion.
FACTS AND PROCEDURAL BACKGROUND
¶2 Adrian is George’s alleged father.2 George is 14. Adrian lives
in Georgia. Adrian never established paternity of George, never sought
custody of George, had not seen George in person for about four years, and
had only sporadically spoken with him by phone.
¶3 The Department of Child Safety (“Department”) received
reports that George’s mother left George and his two siblings with a friend
for over two months and had not returned. After an investigation, the
Department petitioned to adjudicate George and his two siblings
dependent as to their mother and each of the children’s alleged fathers. The
Department alleged that Adrian was “unwilling or unable to provide
proper and effective parental care and control due to abandonment” and
“neglected to provide for [George’s] basic needs.” See A.R.S.
§ 8-201(15)(a)(i), (iii). The Department also petitioned to establish paternity
of the children and asked the court to enter a paternity adjudication for any
child whose paternity had not been established. See A.R.S. § 25-806.
¶4 Later, the court dismissed one alleged father when it
determined he was not the father of George’s sibling despite being
identified as such. The alleged father of George’s other sibling chose not to
contest the dependency allegations. But Adrian contested the dependency
allegations against him.
¶5 When Adrian and George’s mother appeared at the contested
dependency adjudication, Adrian’s paternity was still unknown. Adrian
1 We use a pseudonym to protect the child’s identity.
2 In the briefing, the parties alternatively use the term “alleged father”
or “putative father.” See A.R.S. § 8-106.01. For consistency, we use the term
“alleged father.”
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IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
asked the court to continue the hearing until the Department established
paternity.
¶6 Adrian asserted that proceeding with the hearing would be
unfair to him “if he is not even the established parent.” The Department did
not object to Adrian’s continuance request. The Department apologized for
failing to test for paternity but contended Adrian “has had opportunities to
establish paternity prior to this case coming into being.” The court asked
whether there were any other potential fathers for George. Mother
interjected and said, “[h]e’s the only father” and “[t]here is no John Doe at
all.”
¶7 The court questioned exceeding the 90-day requirement for
holding dependency adjudications. See Ariz. R.P. Juv. Ct. 338(b). The court
ultimately found that the lack of paternity did not justify delaying the
hearing and denied the request for a continuance.
¶8 Mother then chose not to contest the allegations against her,
and the court found the three children dependent as to her.3 The court
committed the children “to the care, custody, and control of the
Department.” Then, the court proceeded with Adrian’s dependency
hearing.
¶9 A child welfare investigator testified and confirmed the
Department had not scheduled a paternity test for Adrian and was unsure
why the Department had not made the referral. Adrian testified he had
never personally sought a paternity test before because he was “pretty
confident” he was George’s father.
¶10 After considering the evidence, the court found “that the
allegations of the petition [were] true by a preponderance of the evidence”
and that George was dependent as to Adrian. It reasoned that Adrian never
established paternity, supported George, or developed a significant
relationship with him. The court ordered the Department to offer Adrian
paternity testing, drug testing, counseling, parenting classes, and case
management. The court also ordered the Department to investigate
Adrian’s criminal record and arrange an assessment of his home in Georgia.
The court adopted a case plan for family reunification. Adrian appealed.
3 Mother is not a party to this appeal.
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IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
DISCUSSION
A. We Have Jurisdiction to Review Adrian’s Appeal.
¶11 Although neither party challenges this court’s jurisdiction
over the appeal, we have an independent duty to determine our
jurisdiction. Gish v. Greyson, 253 Ariz. 437, 442, ¶ 19 (App. 2022). An order
declaring a child dependent is a final, appealable order. Jewel C. v. Dep’t of
Child Safety, 244 Ariz. 347, 350, ¶ 8 (App. 2018). An aggrieved party may
appeal from a final order of the juvenile court. A.R.S. § 8-235(A). “To qualify
as an aggrieved party, the judgment must operate to deny the party some
personal or property right or to impose a substantial burden on the party.”
Jewel C., 244 Ariz. at 349, ¶ 3 (quoting Pima County Juv. Action No. B-9385,
138 Ariz. 291, 293 (1983)). A parent who contests his or her child’s
dependency adjudication is an aggrieved party. Lindsey M. v. Ariz. Dep’t of
Econ. Sec., 212 Ariz. 43, 46, ¶ 12 (App. 2006).
¶12 A parent is “the child’s biological, adoptive, or legal mother
or father whose rights have not been terminated.” Ariz. R.P. Juv. Ct. 102(v).4
But “‘[p]arent’ does not include a person whose paternity has not been
established pursuant to A.R.S. § 25-812 or § 25-814.” Id.; see also A.R.S.
§ 25-401(4) (defining legal parent); A.R.S. § 25-812(A)(1) (Parties can
establish paternity by filing a notarized or witnessed acknowledgment of
paternity by both parents.); A.R.S. § 25-812(A)(2) (Parties can establish
paternity by agreeing to be bound by genetic testing results.); A.R.S.
§ 25-814(A) (A man is presumed to be a child’s father if the child was born
within the marriage, genetic testing affirms paternity, he appears on the
birth certificate, or the parties acknowledge paternity by a notarized or
witnessed statement.).
¶13 Neither Adrian nor the Department established paternity
before the dependency adjudication. Although Adrian was “pretty
confident” he was George’s father, and George’s mother interjected, saying
Adrian was the “only father,” the record contains no sworn statements of
both parties acknowledging paternity. See A.R.S. §§ 25-812(A)(1),
25-814(A)(4). Nor is Adrian presumed to be George’s father. He was never
married to George’s mother, did not sign a notice of acknowledgment at the
4 For dependency proceedings, a parent “also includes a guardian
appointed by the court under Title 8 or Title 14 and an Indian custodian.”
Ariz. R.P. Juv. Ct. 302(a). Neither party asserts Adrian is George’s
appointed guardian or an Indian custodian.
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IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
time of George’s birth, was not listed on the birth certificate, and had not
yet participated in genetic testing. See A.R.S. §§ 25-814(A), 25-812(A)(2).
Thus, Adrian was not a parent at the contested dependency hearing. See
Ariz. R.P. Juv. Ct. 102(v), 302(a).
¶14 Before the Department filed the dependency petition, Adrian
had no parental rights because he was not a legal parent. A.R.S. § 25-401(4);
see Pima County Juv. Severance Action No. S-114487, 179 Ariz. 86, 96 (1994).
When the court found George dependent as to Mother and committed him
to the Department’s custody, Adrian still had no custodial claim because he
had not established paternity. See Maricopa County Juv. Action No.
JD-500200, 163 Ariz. 457, 460 (App. 1989) (The alleged father could not seek
custody of the child until he established paternity.). And when the court
found George dependent as to Adrian, Adrian lost no custodial rights
because none had been established.
¶15 Even so, a dependency adjudication has independent
consequences. As a prime example, the Department maintains a central
registry of substantiated child abuse and neglect reports, including
dependency findings. A.R.S. § 8-804(A). If the Department recorded the
court’s dependency finding in the central registry, Adrian could be
disqualified “from obtaining or maintaining various licenses, certifications,
or employment in working with children.” Phillip B. v. Ariz. Dep’t of Child
Safety, 253 Ariz. 295, 296, ¶ 1 (App. 2022); see generally A.R.S. § 8-804.
¶16 Because of the dependency adjudication, the court ordered
the Department to investigate Adrian’s record and arrange an assessment
of his home. Despite Adrian’s lack of paternity, the court still found George
dependent as to him, thereby placing a “substantial burden” on Adrian. See
Jewel C., 244 Ariz. at 349, ¶ 3. Thus, Adrian is aggrieved by the adjudication,
and we have jurisdiction to consider his appeal under A.R.S. § 8-235(A).
B. The Juvenile Court Erred by Adjudicating George Dependent as
to Adrian Before Establishing Adrian’s Paternity.
¶17 Adrian argues the record contains no reasonable evidence to
support the dependency finding. We review a dependency adjudication for
abuse of discretion and will affirm a dependency finding unless no
reasonable evidence supports it. Louis C. v. Dep’t of Child Safety, 237 Ariz.
484, 488, ¶ 12 (App. 2015).
¶18 We review the juvenile court’s interpretation of statutes and
procedural rules de novo. Louis C., 237 Ariz. at 488, ¶ 12. When we interpret
a statute, we first review its text. Chaparral Dev. v. RMED Int’l, Inc., 170 Ariz.
5IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
309, 311 (App. 1991). “If the language is plain and unambiguous, then no
construction is necessary and our duty is simply to apply that plain and
unambiguous language.” Id.¶19 Relevant here, a child is dependent if he or she is “[i]n need
of proper and effective parental care and control and who has no parent or
guardian, or one who has no parent or guardian willing to exercise or
capable of exercising such care and control.” A.R.S. § 8-201(15)(a)(i). A child
is also dependent if his or her home is unfit because of abuse or neglect “by
a parent, a guardian or any other person having custody or care of the
child.” A.R.S. § 8-201(15)(a)(iii). The dependency petition must contain facts
supporting a dependency finding. A.R.S. § 8-841(C)(3).
¶20 The juvenile court determines “whether a child is dependent
based upon the circumstances existing at the time of the adjudication
hearing.” Shella H. v. Dep’t of Child Safety, 239 Ariz. 47, 50, ¶ 12 (App. 2016).
If the court finds that the allegations in the dependency petition are true by
a preponderance of the evidence, it must make specified findings about
each parent. A.R.S. § 8-844(C)(1)(a). Because the juvenile court considers
only “circumstances existing at the time of the adjudication,” we decline to
consider paternity developments after the dependency adjudication. See
Shella H., 239 Ariz. at 50, ¶ 12. As noted above, the court had not established
paternity before the dependency hearing.
¶21 We prioritize juvenile court proceedings “except as otherwise
provided by law.” Ariz. R.P. Juv. Ct. 103(a). But the law provides paternity
proceedings “have precedence over other civil proceedings.” A.R.S.
§ 25-807(A). Thus, when the Department simultaneously petitions for
dependency and paternity, a court should generally resolve the paternity
issue first.5 See id.; see also Maricopa County Juv. Action No. JD-05401, 173
5 Even if no party seeks to establish paternity, the juvenile court may
rule on paternity matters relevant to a dependency. Albert L. v. Dep’t of Child
Safety, 253 Ariz. 146, 148–49, ¶ 11 (App. 2022). After a preliminary
protective hearing, if paternity has not been established, the court must
order establishment through testing or a voluntary acknowledgement.
Ariz. R.P. Juv. Ct. 332(e)(3). At the initial dependency hearing, the court
revisits remaining paternity issues. See Ariz. R.P. Juv. Ct. 334(c)(2)(C).
Again, at the end of the initial hearing, if paternity has not been established,
the court must order that it be established. Ariz. R.P. Juv. Ct. 334(g)(2). And
if an alleged father fails to comply, the Department may petition for
termination. See A.R.S. § 8-533(B).
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IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
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.”).
¶22 Because paternity proceedings take precedence over other
civil proceedings, we hold that in a dependency proceeding, the parties
must address, and the court must resolve, relevant paternity issues before
the court determines dependency. In this case, the court erred by finding
George dependent as to Adrian because paternity was relevant to prove the
allegations.
¶23 If paternity is irrelevant to the dependency petition, the court
may proceed with a dependency adjudication before establishing paternity.
For example, A.R.S. § 8-201(15)(a)(v) provides a child is dependent if the
court finds he or she is “[i]ncompetent or not restorable to competency and
who is alleged to have committed a serious offense as defined in § 13-706.”
So for an allegation under this section, a parental determination is not
required before proceeding with the dependency. But here, the Department
alleged Adrian was George’s father, and each of the Department’s
dependency allegations against Adrian required a finding that Adrian was
a parent, guardian, or custodian.
¶24 First, the Department alleged Adrian was “unwilling or
unable to provide proper and effective parental care and control due to
abandonment.” “‘Abandoned’ means the failure of the parent to provide
reasonable support and to maintain regular contact with the child,
including providing normal supervision.” A.R.S. § 8-201(1) (emphasis
added). For the court to find that Adrian abandoned George, the court
would need to find that Adrian was George’s parent. See id.
¶25 Second, the Department alleged Adrian “neglected to provide
for [George’s] basic needs.” The court can make a dependency finding due
to neglect only as to “a parent, a guardian or any other person having
custody or care of the child.” See A.R.S. § 8-201(15)(a)(iii). Adrian did not
have custody of George, and the court never appointed him as George’s
guardian. So the court could have found this allegation true only if Adrian
were George’s parent.
¶26 Based on the facts and allegations, the juvenile court lacked
the evidence to adjudicate George dependent as to Adrian because it could
not find that Adrian was George’s parent. See A.R.S. § 8-844(C)(2) (If the
court “[d]oes not find by a preponderance of the evidence that the
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IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
allegations contained in the petition are true, the court shall dismiss the
petition.”).
¶27 The juvenile court acknowledged Adrian’s lack of paternity
but was concerned that continuing the hearing would place the matter
outside the 90-day window for dependency hearings. Generally, a court
must complete the dependency adjudication within 90 days after service.
A.R.S. § 8-842(C); see also Ariz. R.P. Juv. Ct. 338(b)(1) (“The dependency
adjudication hearing must be completed no later than 90 days after service
of the dependency petition on the parent.”) (emphasis added).
¶28 When served with the petition, Adrian was not George’s legal
parent. A.R.S. § 25-401(4). Thus, for the allegations against Adrian, the clock
for his hearing would not run until Adrian’s paternity had been established.
¶29 The juvenile court could have continued Adrian’s
dependency adjudication hearing without violating the 90-day requirement
so long as it held the hearing within 90 days of establishing Adrian’s
paternity. Also, a court may extend the deadline by 30 days if “necessary
for the full, fair, and proper presentation of evidence and the child’s best
interests would not be adversely affected.” Ariz. R.P. Juv. Ct. 338(b)(2)(A);
see also Ariz. R.P. Juv. Ct. 338(b)(2)(B) (The court may grant a continuance
exceeding 30 days for extraordinary circumstances.). Finally, the parties can
always waive the 90-day requirement. See Joshua J. v. Ariz. Dep’t of Econ. Sec.,
230 Ariz. 417, 423, ¶ 21 (App. 2012). And here, the Department did not
object to Adrian’s request for a continuance.
¶30 As noted above, the court had options. But given the
allegations in the petition, it could not enter a dependency finding against
Adrian without first resolving the pending paternity issue. Thus, the court
erred by proceeding with the dependency adjudication as to Adrian.
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IN RE DEPENDENCY AS TO G.R.
Opinion of the Court
CONCLUSION
¶31 We vacate the juvenile court’s dependency order and remand
for proceedings consistent with this opinion. If the court finds that Adrian
is George’s parent, it may proceed with a dependency adjudication,
assuming compliance with other laws and procedures.
AMY M. WOOD • Clerk of the Court
FILED: JT
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