Andrew R. v. Arizona Dept. of Economic Sec.

• Decision Date: 14 January 2010
• Docket Number: No. 1 CA-JV 08-0167.,1 CA-JV 08-0167.
• Citation: 224 P.3d 950
• Parties: ANDREW R., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Jessica H., Jocelyn R., Appellees.
• Court: Arizona Court of Appeals

224 P.3d 950

ANDREW R., Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Jessica H., Jocelyn R., Appellees.

No. 1 CA-JV 08-0167.

Court of Appeals of Arizona, Division 1, Department B.

January 14, 2010.

Kathleen M. Mucerino, Sun City, Attorney for Appellant.

Theresa M. Armendarez, P.L.C., By Theresa M. Armendarez, Phoenix, Attorney for Appellee Jessica H.

OPINION

WINTHROP, Presiding Judge.

¶ 1 In this opinion, we construe the effect of Rule 60(c), Ariz. R. Civ. P., on Arizona Revised Statutes ("A.R.S.") section 25-812(E) (Supp.2008), which provides for challenges to a voluntary acknowledgement of paternity "[p]ursuant to rule 60(c) of the Arizona rules of civil procedure." Andrew R. ("Appellant") appeals from the juvenile court's orders granting the Rule 60(c)(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.

¶ 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(c), 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(c)(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.

¶ 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. The court also concluded that Mother's request was not barred by the doctrine of unclean hands because, although complicit in the fraudulent act, her complicity was slightly more excusable, and the child had not been "a party to the acts which lead [sic] to [Appellant's] name being placed on the birth certificate." The court also denied without prejudice the motion for change of physical custody to Appellant pending additional confidential paternity testing on Randy B. and the child.

¶ 13 On October 10, 2008, Appellant filed a timely notice of appeal.⁷ We have appellate jurisdiction pursuant to A.R.S. § 8-235(A) (2007) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.

ANALYSIS

¶ 14 Appellant argues that the juvenile court erred in granting Mother's motion for relief from the court's judgment of paternity and denying the motion for change in physical custody to Appellant.

¶ 15 Because the juvenile court is "in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings," Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987), this court will not disturb the court's disposition in a dependency action unless its findings of fact were clearly erroneous and there is no reasonable evidence to support them. Pima County Juv. Dependency Action No. 118537, 185 Ariz. 77, 79, 912 P.2d 1306, 1308 (App.1994); Maricopa County Juv. Action No. JD-500325, 163 Ariz. 455, 456, 788 P.2d 1206, 1207 (App.1989).

¶ 16 We nevertheless review de novo the interpretation of statutes and rules. Pima County v. Pima County Law Enforcement Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13, 119 P.3d 1027, 1030 (2005); Linda V. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 76, 78, ¶ 7, 117 P.3d 795, 797 (App.2005). In our review, our primary task is to ascertain and give effect to the intent of the legislature. See Pima County, 211 Ariz. at 227, ¶ 13, 119 P.3d at 1030; Linda V., 211 Ariz. at 78, ¶ 8, 117 P.3d at 797. In determining the intent of the legislature, we first look at the plain wording of the statute or rule involved. Linda V., 211 Ariz. at 78, ¶ 8, 117 P.3d at 797. If clear and unambiguous, a statute or rule will be applied without using other means of statutory construction. Id. Only if the terms are ambiguous do we further examine a statute's context, subject matter, historical background, effects and consequences, and spirit and purpose. Id. (citing Aros v. Beneficial Ariz., Inc., ...