Cox v. Ponce

• Decision Date: 26 July 2021
• Docket Number: No. CV-20-0173-PR,CV-20-0173-PR
• Citation: 491 P.3d 1109,49 Arizona Cases Digest 18
• Court: Arizona Supreme Court
• Parties: Thomas COX, Petitioner, v. Hon. Adele PONCE, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge, Makayla Esplin; Prospective Adoptive Couple, Real Parties in Interest.

49 Arizona Cases Digest 18

491 P.3d 1109

Thomas COX, Petitioner,

v. Hon. Adele PONCE, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, Respondent Judge,Makayla Esplin; Prospective Adoptive Couple, Real Parties in Interest.

No. CV-20-0173-PR

Supreme Court of Arizona.

Filed July 26, 2021

Sandra Slaton (argued), Kristin Roebuck Bethell, Horne Slaton, PLLC, Scottsdale, Attorneys for Thomas Cox

Glenn D. Halterman (argued), Ellsworth Family Law, P.C., Mesa, Attorney for Makayla Esplin

Brent Ellsworth, Brent D. Ellsworth, P.C., Mesa, Attorney for Prospective Adoptive Couple

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, and MONTGOMERY joined.^*

JUSTICE BEENE, Opinion of the Court:

¶1 In Arizona, statutory adoption proceedings require a mother to notify the potential father of her intention to place the child for adoption. The potential father must file a paternity action and serve the mother within thirty days of receiving the mother's notice if he wishes to be notified of proceedings related to the child's adoption or the termination of his parental rights. See A.R.S. § 8-106(G), (J). Here, we address whether a father's failure to timely file a paternity action is excusable under equitable principles. Because we hold that an untimely filed action is barred as a matter of law, we affirm the superior court's order dismissing the paternity action.

BACKGROUND

¶2 In 2018, Thomas Cox ("Father") and Makayla Esplin ("Mother") were in a relationship, which resulted in a pregnancy. During her pregnancy, Mother decided to place the baby for adoption and contacted Adoptive Couple. In August 2019, Mother moved out of the home she shared with Father. Shortly thereafter, Father filed a claim of paternity with the putative fathers registry pursuant to A.R.S. § 8-106.01 and retained an attorney to handle the matter.

¶3 On August 26, Adoptive Couple's attorney spoke with the paralegal for Father's attorney. The content of this conversation is disputed, but the paralegal believed that Adoptive Couple would "back out gracefully" from the adoption proceedings if Father sent Adoptive Couple's attorney a letter expressing his intention to "be involved in the minor child's life." Two days later, the paralegal sent Adoptive Couple's attorney a letter stating that Father would be asserting parental rights over the child and intended to file a paternity action. After sending the letter, the paralegal failed to calendar the deadline to file the paternity action.

¶4 On August 27, Mother served Father with notice of her intention to place the child for adoption pursuant to § 8-106(G) and Father's attorney accepted service. The notice advised that to be able to withhold consent to an adoption, Father would have to initiate paternity proceedings and serve Mother within thirty days of completion of service of the notice. The child was born on September 14.

¶5 On October 11, sixteen days after the deadline, Father filed a paternity action. He was unable to serve Mother. Mother and Adoptive Couple each filed a motion to dismiss the paternity action. After oral argument, the trial court granted each party's motion to dismiss. Father then sought special action relief in the court of appeals, but the court declined jurisdiction.

¶6 We granted review to consider whether equitable relief is available to a father who failed to file a timely paternity action, a matter of first impression for this Court. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶7 We review de novo an order granting a motion to dismiss brought under Arizona Rule of Civil Procedure 12(b)(6). Abbott v. Banner Health Network , 239 Ariz. 409, 412 ¶ 7, 372 P.3d 933, 936 (2016). Here, the parties sought dismissal under Arizona Rule of Family Law Procedure 29(a)(6). Because Rule 29(a)(6) is the family law equivalent of Arizona Rule of Civil Procedure 12(b)(6), we apply de novo review. See Kline v. Kline , 221 Ariz. 564, 568–69 ¶ 13, 212 P.3d 902, 906–07 (App. 2009) (noting that law interpreting other statewide rules is applicable when "the language of the family law rules is substantially the same"). We also review de novo issues of law, including statutory interpretation. BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC , 236 Ariz. 363, 365 ¶ 7, 340 P.3d 1071, 1073 (2015).

I.

¶8 In Arizona, if a mother decides to place her child for adoption, she must comply with the requirements set forth in § 8-106(G). Initially, the mother must file and serve the potential father with notice of her intention to place the child for adoption. § 8-106(G)(1). Along with the notice, the mother must inform the potential father that, if he desires to withhold consent to the adoption, he must "initiate paternity proceedings under Title 25" and "serve the mother within thirty days of completion of service." § 8-106(G). In addition, the mother must notify the potential father that, if he does not file a paternity action under Title 25 and serve the mother within thirty days after completion of the service and pursue the action to judgment, he cannot "bring[ ] or maintain[ ] any action to assert any interest in the child." § 8-106(G)(7).

¶9 If the father fails to comply with § 8-106(G) ’s requirements, § 8-106(J) bars him from bringing or maintaining any action asserting any interest in the child. This statute provides:

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 or the termination of parental rights and his consent to the adoption or termination is not required.

¶10 In this case, Mother properly served Father with her notice of intention to place the child for adoption on August 27. Father, however, failed to timely file and serve Mother with a paternity action as required by § 8-106(J). Accordingly, pursuant to § 8-106(J), Father waived his right to be notified of any hearing regarding the child's adoption or the termination of his parental rights and his consent to the adoption or termination of his parental rights was not required.

¶11 In addition, A.R.S. § 25-804 requires the trial court to "dismiss any proceeding that is barred pursuant to § 8-106, subsection J." Because Father failed to timely file and serve Mother with a paternity action, the trial court based its order dismissing Father's paternity action on §§ 8-106(J) and 25-804.

¶12 The controlling law in this case is clear. Once Father failed to timely file and serve Mother with a paternity action, he waived his right to be notified of any hearing regarding his child's adoption, his consent to the adoption was not required, and the trial court was obligated to dismiss Father's paternity action. §§ 8-106(J), 25-804. In addition, the trial court's order dismissing Father's paternity action finds further support in Arizona Rule of Family Law Procedure 40(j), which states, "[t]he court must dismiss any proceeding that is barred under A.R.S. § 8-106(J)."

¶13 In light of this clear mandate, we must determine whether principles of equity apply to provide relief from these statutory requirements. We now turn to that issue.

II.

¶14 Whether principles of equity (such as excusable neglect and equitable tolling) apply to provide relief in this case depends on the nature of the statute. A statute of limitations "identif[ies] the outer limits of the period of time within which an action may be brought to seek redress or to otherwise enforce legal rights created by the legislature or at common law." Porter v. Spader , 225 Ariz. 424, 427 ¶ 7, 239 P.3d 743, 746 (App. 2010). A statute of repose (sometimes called a nonclaim statute)¹ likewise acts to extinguish legal rights if they are not enforced by a specific deadline. While both statutes of limitations and statutes of repose act as deadlines, they differ in one important way: equitable principles may provide relief only from deadlines imposed by statutes of limitations. See CTS Corp. v. Waldburger , 573 U.S. 1, 9, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014) ("One central distinction between statutes of limitations and statutes of repose underscores their differing purposes. Statutes of limitations, but not statutes of repose, are subject to equitable tolling .... Statutes of repose, on the other hand, generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff's control."). In Albano v. Shea Homes Limited Partnership , 227 Ariz. 121, 127 ¶¶ 23–24, 254 P.3d 360, 366 (2011), this Court explained:

[Statutes of limitations] generally begin to run after an injury occurs and is (or reasonably should have been) discovered. See, e.g. , Walk v. Ring , 202 Ariz. 310, 315–16 ¶¶ 20–23 (2002). But a statute of repose is intended "to establish a limit beyond which no suit may be pursued," and "sets a period of time within which claims must be brought regardless of when the cause of action may accrue." Evans Withycombe, Inc. v. W. Innovations, Inc. , 215 Ariz. 237, 240 ¶ 12 (App. 2006) (quoting Maycock v. Asilomar Dev., Inc. , 207 Ariz. 495, 501 ¶ 28 (App. 2004) ).

Thus, under statutes of repose, "a claim may be barred if it does not accrue within the allowable statutory period." Maycock , 207 Ariz. at 501 ¶ 28 . Although statutes of limitations are generally considered procedural, see Hosogai v. Kadota , 145 Ariz. 227, 231 (1985), a statute of repose defines a substantive right, see Resolution Trust Corp. v. Olson , 768 F. Supp. 283, 285 (D. Ariz. 1991) ; see also Snyder v. Love , 153 P.3d 571, 573 (2006) (observing that statutes of repose are "substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants" (quotations omitted)).

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