In Re Dependency as to H.H.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

IN RE DEPENDENCY AS TO H.H.

No. 1 CA-SA 25-0171

FILED 10-10-2025

Petition for Special Action from the Superior Court in Maricopa County
No. JD44780
The Honorable Gregory Como, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Denise L. Carroll, Esq., Scottsdale
By Denise L. Carroll
Counsel for Petitioner

Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Respondent Department of Child Safety

Maricopa County Office of the Legal Advocate, Phoenix
By Amanda Adams
Counsel for Respondent H.H.

OPINION

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in
which Judge Samuel A. Thumma and Judge Angela K. Paton joined.
 IN RE DEPENDENCY AS TO H.H.
Opinion of the Court

C A T T A N I, Judge:

¶1 Sean L. (“Presumed Father”) appeals from the superior
court’s ruling adjudicating child H.H. dependent as to him, asserting that
the court erred by affirming paternity based on the marital presumption
despite genetic testing ruling out biological paternity. See A.R.S. § 25-
814(A)(1), (C). Given the short timeframe available to address the
dependency adjudication before the next review hearing, we converted the
appeal to a special action and accepted jurisdiction. See In re Dep. as to G.K.,
258 Ariz. 323, 325–26, ¶¶ 9–12 (App. 2024); A.R.S. § 8-847(A); Ariz. R.P. Juv.
Ct. 341(a); Ariz. Ct. App., Div. 1, Admin. Ord. No. 2024-12 (Dec. 4, 2024)
(providing mechanisms for expedited review of dependency findings);
RPSA 12(b)(5)–(6). We then granted relief by order with a written opinion
to follow. This is that opinion.

¶2 In Albert L. v. Department of Child Safety, this court held that
“within a Title 8 dependency proceeding initiated by [the Department of
Child Safety (“DCS”)], A.R.S. § 25-814(C) does not authorize the superior
court to disestablish an individual’s long-standing presumptive paternity
based solely on a negative paternity test and in the absence of another
competing paternity claim.” 253 Ariz. 146, 151, ¶ 21 (App. 2022). The
superior court applied Albert L. here and concluded that the marital
presumption was controlling absent a competing claim of paternity. We
now clarify that Albert L. does not prevent the presumed parent (as opposed
to DCS) from disputing and potentially rebutting the presumption of
paternity. Accordingly, we vacate the dependency ruling to permit the
superior court to consider under § 25-814(C) whether Presumed Father has
rebutted the marital presumption of paternity.

¶3 The relevant facts are undisputed. Presumed Father and
Amber H. (“Mother”) married in 2005, but they physically separated in
October 2013. H.H. was conceived almost a year later and was born in June
2015, while Mother and Presumed Father were legally married but
estranged. H.H.’s Arizona birth certificate did not name a father.

¶4 In September 2015, Presumed Father filed for divorce in
Georgia. Both his complaint and a concurrently submitted “settlement
agreement” (signed by Presumed Father but not Mother) stated that there
were “no minor children” of the marriage. Presumed Father affirmed that
he was unable to determine Mother’s whereabouts despite a diligent search
and served her by publication. The Georgia court entered a default
judgment of “total divorce” in March 2016, in an order that made no
mention of children or paternity.

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 IN RE DEPENDENCY AS TO H.H.
Opinion of the Court

¶5 According to Presumed Father, he first learned of H.H.’s
existence a few months after the divorce, but he remained certain that H.H.
was not his child. He had no contact with H.H. over the years and had no
relationship with her. Mother did not request financial support for H.H.,
and Presumed Father provided none.

¶6 Years later, in January 2025, DCS took custody of H.H., then
nine years old.1 Although Mother reported that a different man (Sherman
N.) was H.H.’s biological father, DCS confirmed that Mother and Presumed
Father had been married when H.H. was conceived and filed an amended
dependency petition alleging he was H.H.’s legal father.

¶7 Presumed Father contested the dependency and requested a
DNA test, which showed a zero percent likelihood of biological paternity.
He then moved to be dismissed as a party. H.H. supported dismissal,
noting that she had no pre-existing relationship with Presumed Father and
(because he had been excluded as her biological father) was not interested
in building a relationship with him. DCS argued that paternity was
established under the marital presumption and that, under Albert L., the
court lacked authority to disestablish his presumptive paternity.

¶8 The superior court denied dismissal and affirmed Presumed
Father’s paternity based on the marital presumption, reasoning that Albert
L. prevented it from considering Presumed Father’s attempt to rebut the
presumption without a competing paternity claim. After an evidentiary
hearing, the court found H.H. dependent as to Presumed Father based on
his unwillingness to exercise parental care and control given their lack of
biological (or other) relationship.2 See A.R.S. § 8-201(15)(a)(i). Presumed
Father appealed.

¶9 Preliminarily, Presumed Father asserts that the Georgia
divorce judgment “explicitly states there were no children of the marriage”
and is entitled to full faith and credit, which he argues precludes
application of the marital presumption here. See U.S. Const. art. IV, § 1;
Schilz v. Superior Court, 144 Ariz. 65, 68 (1985); cf. A.R.S. § 25-815. But the
Georgia court’s two-page order says nothing about children or paternity.

1 The court has since found H.H. dependent as to Mother based on
substance abuse, mental health, and financial issues that prevent her from
meeting H.H.’s basic needs. Mother is not a party to this appeal.

2 The court expressly did not find abuse or neglect, meaning
Presumed Father would not be listed on the central registry.

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 IN RE DEPENDENCY AS TO H.H.
Opinion of the Court

Although the Georgia court likely would have resolved the paternity issue
had it been raised, see Ga. Code Ann. §§ 19-5-15, -7-20(a)–(b); Baker v. Baker,
582 S.E.2d 102, 103 (Ga. 2003), the omission is unsurprising given Presumed
Father’s filings (including the default “settlement agreement” presented to
the Arizona court along with the Georgia decree) asserted that there were
no children of the marriage. As it stands, however, the Georgia decree itself
includes no paternity or non-paternity judgment to which an Arizona court
may afford full faith and credit.

¶10 Presumed Father next argues that the superior court erred by
applying the marital presumption without considering whether compelling
evidence rebutted the presumption and disproved paternity.

¶11 In the absence of a paternity judgment or its equivalent, see,
e.g., A.R.S. § 25-812(B)–(D), Arizona law creates a presumption of paternity
under four enumerated circumstances, including if the presumed parent
was married to the child’s mother when the child was born, A.R.S. § 25-
814(A)(1)–(4). The statute makes any such presumption rebuttable by clear
and convincing evidence. A.R.S. § 25-814(C).

¶12 The superior court here, applying the above-quoted language
from Albert L., see supra ¶ 2, concluded that it lacked authority to find that
Presumed Father had rebutted the marital paternity presumption based on
DNA testing absent a competing paternity claim. We conclude otherwise
in light of a critical (albeit implicit) distinction between this case and Albert
L.: the party seeking to rebut the presumption.

¶13 In Albert L., the presumed father took affirmative action
(completing and filing a voluntary acknowledgment of paternity) to assert
paternity and trigger the presumption. Id. at 147, ¶ 2. Presumed Father
here took no steps to invoke the marital presumption, and in fact
represented to the contrary that there were no children of the marriage
when he filed for divorce. In Albert L., the presumed father had a long-
standing relationship with the child, having “cared for the child as his
daughter” for seven years before DCS initiated the dependency. Id. at 147–
48, ¶¶ 2–3. Presumed Father here had no contact with H.H. during the nine
(plus) years before the dependency, much less any established parent–child
relationship. What’s more, neither Presumed Father nor H.H. herself
expressed any desire to build that relationship in the absence of a genetic
link.

¶14 Of critical distinction for our purposes, in Albert L., the
presumed father opposed DCS’s attempt to rebut the paternity presumption

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 IN RE DEPENDENCY AS TO H.H.
Opinion of the Court

based on genetic testing. Id. at 148, ¶¶ 4–6. That raised the specter that
§ 25-814(C) was being used as a shortcut to severance—a means to wholly
circumvent the process required to terminate parental rights under § 8-
533(B). Lack of a genetic link is not, after all, a ground for termination of
parental rights. See A.R.S. § 8-533(B)(1)–(12). The Albert L. court observed
as much, cautioning against allowing such a de facto “termination where a
parent is the only father the child knows and has cared for a child for years,
without any inquiry into parental fitness or the child’s best interests,”
which it classed as an absurd result. 253 Ariz. at 151, ¶ 20 & n.3. Thus, the
context in which Albert L. was decided—“within a Title 8 dependency
proceeding initiated by DCS,” id. at ¶ 21—is critical.

¶15 A weighty concern militates against permitting DCS to rebut
a presumption of paternity over a presumed father’s objection, as occurred
in Albert L. See id. at 148, ¶ 4. That concern is not present here, where a
presumed father who has never had contact with the child seeks to rebut
the presumption. Accordingly, we hold that in this posture, Albert L. does
not prevent Presumed Father from attempting to rebut the marital paternity
presumption.

¶16 Because the paternity determination was a necessary
prerequisite to the dependency finding, see In re Dep. as to G.R., 255 Ariz.
444, 445, ¶ 1 (App. 2023), we vacate the dependency finding to permit the
superior court to consider under § 25-814(C) whether Presumed Father has
rebutted the marital presumption of § 25-814(A)(1). Given the short
timeframe involved, this decision is effective immediately. See RPSA 18(c).

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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