Andrew R. v. Arizona Department of Economic Security

224 P.3d 950, 223 Ariz. 453, 573 Ariz. Adv. Rep. 25, 2010 Ariz. App. LEXIS 4
CourtCourt of Appeals of Arizona
DecidedJanuary 14, 2010
Docket1 CA-JV 08-0167
StatusPublished
Cited by18 cases

This text of 224 P.3d 950 (Andrew R. v. Arizona Department of Economic Security) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrew R. v. Arizona Department of Economic Security, 224 P.3d 950, 223 Ariz. 453, 573 Ariz. Adv. Rep. 25, 2010 Ariz. App. LEXIS 4 (Ark. Ct. App. 2010).

Opinions

OPINION

WINTHROP, Presiding Judge.

¶ 1 In this opinion, we construe the effect of Rule 60(c), Ariz. R. Civ. P., on Arizona Revised Statutes (“AR.S.”) section 25-812(E) (Supp.2008), which provides for challenges to a voluntary acknowledgement of paternity “[pjursuant to rule 60(e) of the Arizona rules of civil procedure.” Andrew R. (“Appellant”) appeals from the juvenile court’s orders granting the Rule 60(e)(3) motion of Jessica H. (“Mother”) for relief from a judgment of paternity and denying a motion for change in physical custody to Appellant. Because we conclude that the juvenile court should have applied the six-month time limit of Rule 60(c)(3) to Mother’s motion in construing A.R.S. § 25-812(E), we vacate the court’s orders and remand to the superior court for further proceedings consistent with this opinion, including reconsideration of the issue of custody.

FACTS AND PROCEDURAL HISTORY1

¶ 2 Mother was seventeen years old when Jocelyn R. (“the child”) was born in July 2007. When Mother left the hospital after the birth, she had not provided a father’s name for the birth certificate. Mother initially lived with her mother but, due to disagreements involving her mother’s boyfriend and Mother’s desire to be “independent,” Mother moved in with Appellant and his mother and mother’s girlfriend. On December 14, 2007, Mother and Appellant signed an acknowledgement of paternity2 at the Maricopa County Health Department, Office of Vital Statistics, identifying Appellant as the child’s father.3 On January 18, 2008, a new birth certificate was issued naming Appellant the father.

¶ 3 Meanwhile, although living with Appellant and his family, Mother began dating Terry W., a purported drug abuser. In early February 2008, Mother, Appellant, and the child moved out of Appellant’s mother’s home and began living in an apartment with Mother’s brother, who had allegedly molested Mother when she was a child. Appellant moved out of the apartment in mid-March 2008, and Terry W. moved in a few days later. Approximately two weeks after Appellant moved out, Child Protective Services began an investigation based on a report of unsanitary and unhealthy living conditions and drug use in the apartment. The apartment’s occupants were eventually evicted.

[455]*455¶ 4 On April 8, 2008, the Arizona Department of Economic Security (“ADES”) filed a dependency petition, alleging that Mother was unable or unwilling to parent the child due to an unfit home, Mother’s admitted cocaine abuse, and a failure to protect. ADES also alleged that Appellant was the child’s father and that he was unable or unwilling to parent the child due to his shared substance abuse with Mother and his failure to protect the child by leaving her in Mother’s care.

¶ 5 At the April 14, 2008 preliminary protective hearing, the juvenile court found the child dependent as to Mother. The court issued a preliminary protective order making the child a temporary ward of the court in the legal care, custody, and control of ADES and placing her in the physical custody of the maternal grandmother.

¶ 6 On April 28, 2008, the juvenile court held an initial dependency hearing regarding Appellant, who contested the allegations of the petition. The parties also discussed the issue of Appellant’s paternity and the possibility that another male, Randy B., was the child’s biological father. Appellant conceded that he might not be the biological father based on the results of a home-administered paternity test obtained from an internet website,4 but argued he was the child’s legal father because the acknowledgement of paternity had been entered as a judgment of the superior court and that he had bonded with the child since her birth. Although noting that “a presumption of paternity” existed regarding Appellant, the court granted, over Appellant’s objection, permission for ADES to add additional parties to the dependency petition, specifically fathers John Doe and Randy B. After considering the issue, ADES ultimately opted not to amend the petition.

¶ 7 Appellant sought extensive visitation and, pursuant to mediation, participated in parent aide services, substance abuse assessment/treatment, and substance abuse testing. At the June 11, 2008 pretrial conference, ADES agreed to an in-home dependency that would have put the child in Appellant’s custody. However, Mother and the child’s guardian ad litem objected and requested a paternity test. The court affirmed the current placement and set an evidentiary hearing for June 25, 2008.

¶ 8 At the June 25 evidentiary hearing, the parties, including ADES and the guardian ad litem, discussed changing physical custody of the child to Appellant or Mother, but various objections were voiced. The juvenile court scheduled a contested evidentiary hearing regarding any motions for a change in physical custody of the child.

¶ 9 At a July 14, 2008 report and review hearing, counsel for Appellant requested that Mother file a formal motion pursuant to Rule 60(c) of the Arizona Rules of Civil Procedure if she wished to challenge the acknowledgement of paternity and for the parties to more fully address the factual issues at the scheduled evidentiary hearing. On August 1, 2008, Mother filed a “Notice of Request for Relief from Judgment of Paternity” pursuant to Rule 60(e), requesting relief on the basis that “paternity was established fraudulently and under duress.”

¶ 10 On August 13 and 20, 2008, the juvenile court held contested evidentiary hearings regarding the Rule 60(c) motion and the motion for change in custody.5 The parties presented conflicting testimony at the hearings. At the August 13 hearing, the court denied without prejudice Appellant’s motion to dismiss Mother’s Rule 60(e)(3) motion as untimely, while allowing for the filing of a written motion to dismiss.6 Mother also made an oral motion for paternity testing of Randy B., but Appellant and ADES objected, and the court directed Mother to file a written motion.

[456]*456¶ 11 The parties submitted written closing arguments, with the child’s guardian ad litem supporting Mother’s request for relief, and ADES supporting Appellant’s position objecting to the request. ADES also formally moved for a change in physical custody of the child to Appellant.

¶ 12 On October 6, 2008, the juvenile court entered its order granting Mother’s Rule 60(c) request for relief from the presumption of paternity and denying ADES’s motion for change of custody to Appellant. The court found that, although Mother’s Rule 60(c) motion was not filed until August 1, 2008, the motion would nonetheless be deemed timely because the contention that someone other than Appellant could be the child’s father was raised at the April 14, 2008 initial dependency hearing, the June 11 pretrial conference, and the June 25 evidentiary hearing. The court concluded that relief from the judgment of paternity was appropriate because the parties’ signatures on the acknowledgement of paternity, despite evidence indicating they did not believe Appellant was the father, amounted to an act of fraud.

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Andrew R. v. Arizona Department of Economic Security
224 P.3d 950 (Court of Appeals of Arizona, 2010)

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Bluebook (online)
224 P.3d 950, 223 Ariz. 453, 573 Ariz. Adv. Rep. 25, 2010 Ariz. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrew-r-v-arizona-department-of-economic-security-arizctapp-2010.