In Re Term of Parental Rights as to M.N.

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

IN RE TERMINATION OF PARENTAL RIGHTS AS TO M.N.

No. CV-24-0114-PR
Filed February 7, 2025

Appeal from the Superior Court in Coconino County
The Honorable Angela R. Kircher, Judge Pro Tempore
No. S0300SV202100003
REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One
257 Ariz. 374 (App. 2024)
VACATED IN PART

COUNSEL:

Philip “Jay” McCarthy, Jr. (argued), Mangum Wall Stoops & Warden,
P.L.L.C., Flagstaff, Attorneys for Adoption Choices of Arizona

Sandra L.J. Diehl, Coconino County Public Defender, Flagstaff, Attorneys
for Child

Chad Joshua Winger (argued), Harris & Winger, P.C., Flagstaff, Attorneys
for Father

Tom Jose, Timothy D. Keller, Phoenix, Attorneys for Amicus Curiae Center
for the Rights of Abused Children

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 IN RE TERMINATION OF PARENTAL RIGHTS AS TO M.N.
Opinion of the Court

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES BEENE,
MONTGOMERY, KING, and BERCH (Retired) joined.*
_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 Delvagus I. (“Father”) was identified as a potential father to
M.N. and served with notice of adoption proceedings pursuant to A.R.S.
§ 8-106(G). The juvenile court terminated Father’s parental rights to M.N.
because he did not file a notice of a claim of paternity with the Arizona
putative fathers registry. See A.R.S. §§ 8-106.01, -533(B)(6).

¶2 We hold that a man identified as a potential father under
§ 8-106(F) and served with notice under § 8-106(G) is not required to file a
notice of a claim of paternity with the putative fathers registry. Thus, a
potential father’s rights cannot be terminated under § 8-533(B)(6) for
noncompliance with § 8-106.01. The potential fathers statute, § 8-106, and
the putative fathers statute, § 8-106.01, address separate classifications of
fathers. Each classification affords different rights and imposes distinct
obligations that can serve as a discrete ground for termination.

¶3 We generally agree with the court of appeals’ holding but do
not adopt all of its reasoning. We therefore vacate ¶¶ 13–16 of the opinion
and leave the remainder intact. We reverse and remand the juvenile court’s
termination order.

BACKGROUND

¶4 Colette C. (“Mother”) conceived M.N. with Father in summer
2020. In March 2021, before M.N. was born, Mother and her boyfriend
(“Boyfriend”) initiated adoption proceedings with Adoption Choices of
Arizona (“Choices”). Mother did not tell Choices about Father and asserted
that Boyfriend was M.N.’s only possible father.

________________________
* Former Chief Justice Robert M. Brutinel recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, Justice Rebecca
White Berch (Ret.) of the Arizona Supreme Court was designated to sit in
this matter.
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Opinion of the Court

¶5 M.N. was born on March 23, 2021. When Father appeared at
the hospital to see M.N., he asked to take a DNA test. The staff told Father
that he had to take the test elsewhere.

¶6 The following month, on April 6, Mother and Boyfriend
signed adoption consent forms through Choices. On April 21, Choices
petitioned the juvenile court for termination of parental rights on the
ground that Mother and Boyfriend—the purported father—consented to
termination and adoption.

¶7 At some point after Choices filed its termination petition,
Mother identified Father as a potential father of M.N. Choices then served
Father a notice of the pending adoption, starting the thirty-day timeframe
for him to file and serve a paternity action. See § 8-106(G)(3).

¶8 On May 21, Father filed a paternity action in Maricopa
County Superior Court. On May 24, Choices amended its termination
petition to include Father, alleging that he had failed to file a paternity
action within 30 days of being served notice of the pending adoption. See
§§ 8-106(J), -533(B)(5).

¶9 On December 2, Choices filed a second amended petition,
informing the juvenile court of Father’s paternity action and that genetic
testing confirmed by a 99.99% probability he was the biological father of
M.N. The petition added allegations that Father had abandoned M.N. and
that he failed to file a notice of a claim of paternity with the putative fathers
registry pursuant to § 8-106.01. See § 8-533(B)(1), (6).

¶10 On February 4, 2022, Choices moved for partial summary
judgment on the alleged termination grounds. On March 25, Choices filed
a third amended petition, adding allegations that Father suffered from
mental illness/substance abuse and parental unfitness due to a felony
conviction. See § 8-533(B)(3)–(4).

¶11 On March 28, the juvenile court held oral argument on
Choices’ motion. At the conclusion of arguments, the court denied
summary judgment on the issue of abandonment but found by clear and
convincing evidence that Father had failed to file with the putative fathers

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Opinion of the Court

registry. See §§ 8-106.01, -533(B)(6). Choices later moved to dismiss the
remaining statutory grounds without prejudice, which the court granted.

¶12 On August 9, finding that termination was in M.N.’s best
interests, the juvenile court terminated Father’s parental rights. Father
appealed.

¶13 The court of appeals reversed and remanded the juvenile
court’s termination order, concluding that the court improperly terminated
Father’s rights under § 8-533(B)(6) because it failed to consider his rights as
a potential father under § 8-106. In re M.N., 257 Ariz. 374, 375–76 ¶ 1 (App.
2024). The court further held that genetic testing established Father as a
presumed legal father, and thus Father no longer met the definition of a
putative father or potential father and did not have to file with the putative
fathers registry. Id. at 375–76 ¶ 1, 378 ¶ 16.

¶14 We granted review to determine whether a potential father
served with a § 8-106 notice is still required to file a notice of a claim of
paternity with the putative fathers registry under § 8-106.01. We have
jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶15 We review the juvenile court’s termination order for abuse of
discretion. Frank R. v. Mother Goose Adoptions, 243 Ariz. 111, 114 ¶ 17 (2017).
We review questions of law and statutory interpretation de novo. Id.
at 114–15 ¶ 17.

¶16 In an adoption proceeding, the potential fathers statute
imposes a duty on the mother to file a notarized affidavit listing all potential
fathers. § 8-106(F). The potential father is entitled to notice of the
proceedings, and the notice must state, in part, that the father has a right to
consent or withhold consent to the adoption. § 8-106(G). The statute
further informs him that it is his responsibility to initiate paternity
proceedings within thirty days of notice. Id. If he fails to file a paternity
action within thirty days, he is barred from bringing any action to assert an
interest in the child. § 8-106(G)(7).

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Opinion of the Court

¶17 In 1994, the legislature established the putative fathers
registry, adding § 8-106.01 to Title 8. See H.B. 2462, 41st Leg., 2d Reg. Sess.
(Ariz. 1994). The putative fathers statute requires a man who claims to be
the father of a child to file a notice of a claim of paternity before the birth of
the child or within thirty days after the birth. § 8-106.01(A)–(B). Upon
timely filing of a notice of a claim of paternity with the registry, the putative
father “shall be served with the notice prescribed in § 8-106, subsection G.”
§ 8-106.01(G). His failure to file a notice of a claim of paternity with the
registry results in waiver of his right to be notified of any proceedings
regarding the child’s adoption unless he proves by clear and convincing
evidence that it was not possible to file a notice of a claim and that he filed
it within thirty days after it became possible for him to file. § 8-106.01(E).

¶18 Choices argues that § 8-106.01 required Father to file a notice
of a claim of paternity with the putative fathers registry, regardless of
whether Mother disclosed him as the potential father under § 8-106(G).
Choices contends that § 8-106.01(A) concerns “[a] person who is seeking
paternity” and “who is the father or claims to be the father,” and so by its
terms applies to Father. Because Father did not file a notice with the
registry or comply with other requirements set forth in § 8-106.01(A),
Choices contends his rights should be terminated.

¶19 Father responds that a man identified as a potential father and
served with a § 8-106(G) notice, as he was, is not required to file a notice of
a claim of paternity with the putative fathers registry because he is not a
putative father. Rather, because he complied with all statutory obligations
required of a potential father, his parental rights were wrongly terminated.

I. The Potential And Putative Fathers Statutes Address Distinct
Classifications Of Fathers.

¶20 Looking to the relevant statutes, “[w]e determine the plain
meaning of the words the legislature chose to use, viewed in their broader
statutory context.” In re Drummond, 543 P.3d 1022, 1025 ¶ 5 (Ariz. 2024)
(citation omitted) (internal quotation marks omitted). “Absent ambiguity,
we interpret statutes according to their plain language.” Id. “When a
statute’s plain language is unambiguous in context, it is dispositive.” Id.
And “[i]n construing a specific provision, we look to the statute as a whole
and we may also consider statutes that are in pari materia—of the same

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subject or general purpose—for guidance and to give effect to all of the
provisions involved.” Id. (alteration in original) (citation omitted).

¶21 We reiterate that the statutes address “two categories of
fathers who are entitled to notice of the filing of adoption proceedings,”
David C. v. Alexis S., 240 Ariz. 53, 56 ¶ 14 (2016), and emphasize the
legislature’s addition of the putative fathers statute to the potential fathers
statute. The legislature’s enactment of the putative fathers registry added
separate rights and responsibilities for unwed fathers in adoption
proceedings where they are not identified as potential fathers, indicating its
intent to treat potential and putative fathers differently. Moreover, § 8-533
provides distinct grounds for terminating a potential or putative father’s
parental rights; the applicable ground depends on the classification of the
father. Under § 8-533(B)(5), a potential father’s failure to file a paternity
action within thirty days of completion of service, as § 8-106(G) requires, is
a ground for terminating the parent-child relationship. Under § 8-533(B)(6),
a putative father’s failure to file a notice of a claim of paternity, as § 8-106.01
requires, is a ground for terminating the parent-child relationship. The fact
that the legislature provided different grounds for termination underscores
the distinction between the classifications.

¶22 In David C., we defined a potential father as “a man, identified
by the mother in an affidavit, who is or could be the father of the child, but
whose paternity has not been established.” 240 Ariz. at 56 ¶ 14 (citing
§ 8-106(F)). And “[a] putative father is a man who is or claims to be the
father of the child and whose paternity has not been established.” Id.
at 56–57 ¶ 17 (citing § 8-106.01(A)). We illustrated the distinct paths to
protecting a father’s rights and receiving notice of an adoption as follows:

Section 8-106(G) provides notice when the mother identifies
potential fathers, and § 8-106.01 is intended to provide notice
when the putative father identifies himself. A potential father
is entitled to notice under § 8-106(G) whether or not he
registers with the putative fathers registry. A putative father
must timely register to receive notice of the adoption
proceedings or he waives notice and his consent is not
required to finalize the adoption.

Id. at 57–58 ¶ 22.

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¶23 Notice is the key distinction, which is consistent with the
United States Supreme Court’s discussion of a putative fathers registry in
Lehr v. Robertson, 463 U.S. 248, 251 (1983). A mother identifying a potential
father is the event triggering notice of the adoption proceedings to the
potential father.1 See § 8-106(F)–(G). And upon receipt of the notice, the
potential father must initiate proceedings within thirty days or he loses his
right to assert any interest in the child. § 8-106(G)(3), (7). By contrast,
§ 8-106.01(A) imposes a duty on the putative father, that is, the man “who
is the father or claims to be the father,” to “file notice of a claim of paternity
and of his willingness and intent to support the child to the best of his
ability with the state registrar of vital statistics in the department of health
services.” § 8-106.01(A). In other words, because the putative father is a
man who has not been identified as a potential father, he must self-identify
to receive notice of adoption proceedings. See David C., 240 Ariz. at 57–58
¶ 22. The child’s birth is the event triggering the putative father’s thirty
days to identify himself and file a notice of a claim of paternity to receive
notifications of the proceedings, though he may also file a notice of a claim
of paternity before the child’s birth. See § 8-106.01(B).

¶24 We previously suggested, somewhat confusingly, that a man
can be both a putative and potential father. See David C., 240 Ariz. at 58
¶ 24. But we also recognized that “[t]he two statutes provide different ways
of recognizing fathers’ parental rights and relieving prospective adoptive
parents from the obligation of obtaining a father’s consent to the adoption.”
Id. at 57 ¶ 22. And because “[a] potential father is entitled to notice under
§ 8-106(G) whether or not he registers with the putative fathers registry,” a
potential father who received notice and complied with § 8-106(G) is
“entitled to contest the adoption even if he failed to register [under
§ 8-106.01].” Id. at 57–58 ¶¶ 22–23. We concluded that “[w]hen a potential
father was not personally served with notice because of the mother’s
wrongdoing but nonetheless complied with A.R.S. § 8-106(G), but not
A.R.S. § 8-106.01, requiring registration serves no purpose other than to

1 If a potential father is identified without a notarized affidavit by
mother—as in this case—the adoption agency is still required to notify the
potential father of the adoption proceedings. § 8-106(G) (“Notice shall be
served on each potential father as provided for the service of process in civil
actions.” (emphasis added)). The absence of a notarized affidavit should
not serve as an incentive to forego providing a § 8-106(G) notice to a
potential father.
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reward mother’s conduct by precluding the potential father from contesting
the adoption.” Id. at 58 ¶ 23.

¶25 We here clarify that “putative” and “potential” fathers are
distinct legal statuses granting and imposing different rights and duties.
Section 8-106(G) is the statutory channel by which a potential father can
assert his rights and initiate a paternity action to contest the adoption of his
child (if he does so within thirty days). Successful filing of a notice of a
claim of paternity in the putative fathers registry under § 8-106.01 requires
that the father be notified of the adoption proceedings and also receive the
notice prescribed in § 8-106(G). See § 8-106.01(G). Thus, a putative father
who invokes his rights under § 8-106.01 and successfully files with the
registry effectively assumes the rights and obligations of a potential father.

¶26 It is clear, then, that our statutes provide distinct paths to
establishing paternity—one established by mother’s identification, the
other by the father’s initiation. At any given time, a father could be either
putative or potential but is subject only to the requirements of the
applicable category. We now examine the central issue in this
case—whether a potential father is required to file with the putative fathers
registry.

II. A Potential Father Is Not Required To File With The Putative
Fathers Registry.

¶27 In an adoption proceeding, § 8-106(F) imposes a duty on the
mother to identify a man known to her as the father or possible father of the
child. Here, although Mother initially failed to identify Father, he was
nonetheless subsequently identified as a potential father and made known
to Choices. He was therefore entitled to notice under § 8-106(G), “whether
or not he register[ed] with the putative fathers registry.” David C., 240 Ariz.
at 57 ¶ 22. Father received this notice and initiated paternity proceedings.
See § 8-106(G).

¶28 Simply put, the notification of rights and responsibilities
under § 8-106(G) precludes any requirement to file with the putative fathers
registry under § 8-106.01. “It is a basic principle that courts will not read
into a statute something which is not within the manifest intention of the
legislature as indicated by the statute itself.” Mussi v. Hobbs, 255 Ariz. 395,
402 ¶ 34 (2023) (quoting Town of Scottsdale v. State ex rel. Pickrell, 98 Ariz.
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382, 386 (1965)). We “will not inflate, expand, stretch or extend a statute to
matters not falling within its expressed provisions.” Id. (internal quotation
mark omitted) (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965)).
We decline to read into § 8-106 an additional requirement to file with the
putative fathers registry.

¶29 Parental rights are fundamental, as Arizona law recognizes:
“The liberty of parents to direct the upbringing . . . of their children is a
fundamental right.” A.R.S. § 1-601(A). This right is embodied in the United
States Constitution and fully applies when the state takes action to
terminate that right. See Santosky v. Kramer, 455 U.S. 745, 753 (1982)
(recognizing that parents have a fundamental liberty interest “in the care,
custody, and management of their child” that “does not evaporate simply
because they have not been model parents or have lost temporary custody
of their child to the State”). The state’s decision to end a parent’s right to
his or her child implicates a fundamental right. 2 See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000). Under Arizona law, infringement of this
fundamental right is subject to strict scrutiny. § 1-601(B) (“This state, any
political subdivision of this state or any other governmental entity shall not
infringe on these rights without demonstrating that the compelling
governmental interest as applied to the child involved is of the highest
order, is narrowly tailored and is not otherwise served by a less restrictive
means.”).

¶30 Reading §§ 8-106 and -106.01 together to create multiple
requirements not only renders certain provisions superfluous but also
raises due process issues. In clarifying the potential and putative father
classifications, we emphasize that “[w]hen an unwed father demonstrates
a full commitment to the responsibilities of parenthood by ‘com[ing]
forward to participate in the rearing of his child,’ his interest in personal
contact with his child acquires substantial protection under the due process
clause.” Lehr, 463 U.S. at 261 (second alteration in original) (internal citation
omitted) (quoting Caban v. Mohammed, 441 U.S. 380, 392 (1979)). Procedural
rules designed to protect the integrity and finality of adoptions should not
become a trap for the unwary and a tool for the manipulative. The
legislature created a dual system for asserting or establishing fatherhood,

2 Although this is a private termination action, the state is effectuating it
through the court system, rendering it state action. See Shelley v. Kraemer, 334 U.S. 1, 20 (1948).
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and we are loath to transform it into a single, internally contradictory
scheme.

¶31 Choices argues that the court of appeals failed to recognize or
cite Frank R., in which we held that a man’s failure to register with Arizona’s
putative fathers registry is a statutory ground for termination of parental
rights. 243 Ariz. at 112 ¶ 1. Choices contends that Frank R. clearly provides
for termination of Father’s rights under § 8-533(B)(6) for failure to file with
the putative fathers registry, and thus the juvenile court correctly
determined Father’s failure to comply with § 8-106.01’s filing requirement
established a ground for terminating his parental rights. But unlike Frank
R., Father assumed potential—not putative—father status and was thus
subject to § 8-106, which does not include filing a notice of a claim of
paternity with the putative fathers registry. We maintain now, as we held
then, that § 8-106 “does not require compliance with § 8-106.01 to maintain
a paternity action.” Id. at 117 ¶ 29.

¶32 Finally, while we recognize that either a potential or putative
father can become a legal father, we emphasize that this opinion is limited
to distinguishing the classifications under §§ 8-106 and -106.01.

¶33 For these reasons, we hold that a potential father served with
a § 8-106 notice is not required to file a notice of a claim of paternity with
the putative fathers registry under § 8-106.01. Thus, Father’s failure to file
with the registry is not a ground for termination of parental rights.

CONCLUSION

¶34 In clarifying the potential and putative fathers statutes, we
vacate ¶¶ 13–16 of the court of appeals’ opinion. We reverse the juvenile
court’s order terminating Father’s parental rights to M.N. and remand for
any further appropriate proceedings consistent with this opinion.

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