In re the Adoption of A.R. Jr., A.R., and A.R.
from the Superior Court in Pima County No. B25793 The
Honorable Jane Butler, Judge Pro Tempore
MyersStrickland, PLLC, Tucson By Heather M. Strickland
Counsel for Appellant
M. Reed, Tucson Counsel for Minors
Urbina, Pascua Yaqui Tribe Attorney General By Tamara R.
Walters, Assistant Attorney General, Tucson Counsel for
Pascua Yaqui Tribe
Presiding Judge Vásquez authored the opinion of the
Court, in which Chief Judge Eckerstrom and Judge Miller
VÁSQUEZ, Presiding Judge
Appellants Antonio and Joyce Urbina in January 2016 filed a
petition to adopt the children, A.R. Jr., A.R., and A.R.,
born July 2005, December 2007, and November 2008. The Urbinas
are paternal cousins of the children and took custody of them
in September 2013. The children are Indian children as
defined by the Indian Child Welfare Act (ICWA). Their father
relinquished his parental rights in September 2014, and the
parental rights of the children's mother were terminated
in June 2015, after a contested severance proceeding. The
Arizona Department of Child Safety consented to the adoptions
On the date set for the adoption hearing, however, Joyce
suffered a stroke and the hearing was vacated. Joyce died a
few weeks later. Following her death, Antonio, joined by the
Pascua Yaqui Tribe, which had intervened in the matter at the
time of the hearing, filed a motion to allow Joyce to
posthumously adopt the children. They explained the children
regarded Joyce as their mother and they wanted the birth
certificates to show her as their mother. Additionally, they
contend that the children's psychological well-being will
be harmed if the adoption is not approved posthumously
because the designation for mother will be listed as
"unknown." They state this will diminish the
personal and familial roles assumed by Joyce and will force
the children in the future to relive the trauma of the
dependency when they must explain why their mother is
"unknown." The juvenile court denied the motion, as
well a subsequent motion for reconsideration.
Antonio, the children, and the Pascua Yaqui Tribe challenge
the juvenile court's order denying the motion in a joint
brief. Appellants contend the court abused its discretion in
failing to set a hearing, make factual findings as to the
children's best interests, or exercise its equitable
powers to grant the motion. Their appeal is unopposed.
"We review an adoption order for an abuse of discretion,
and issues of law, including statutory interpretation, de
novo." David C. v. Alexis S., 240 Ariz. 53,
¶ 8, 375 P.3d 945, 947 (2016) (citation omitted).
¶4 Because adoption did not exist at
common law, "adoption statutes should receive strict
construction, particularly respecting the court's
jurisdiction." In re Maricopa Cty. Juv. Action No.
A-25646, 130 Ariz. 589, 590, 637 P.2d 1092, 1093 (App.
1981). And, because an adoption proceeding is a statutory
action, the juvenile court's power is limited to that
granted by statute. Thus, "equity is invoked in aid of
the execution of the statute, " and any "authority
not expressly given by statute cannot . . . be assumed."
Van Ness v. Superior Court, 69 Ariz. 362, 365, 213
P.2d 899, 900 (1950).
Section 8-119, A.R.S., sets forth the procedure to follow
upon the death of a petitioner. It provides, "In the
event of the death of the petitioner, the petition for
adoption shall be dismissed, except where there are two
petitioners and one of the petitioners dies the proceeding
shall continue unless withdrawn by the surviving
petitioner." According to the plain language of the
statute, a petition filed by a sole petitioner must be
dismissed upon the death of the petitioner. If, as is the
case here, a petition is filed by two petitioners and one
dies, the survivor may either proceed as the sole petitioner
or withdraw the petition. Appellants nevertheless argue that
because this statute "does not expressly prohibit
posthumous adoptions, " we should read it to allow a
deceased petitioner to adopt.
Arizona's adoption statutes, however, set forth the
persons who may adopt and be adopted. Specifically, A.R.S.
§ 8-103(A), (B) provides that "[a]ny adult
resident" and under certain circumstances "[a]n
adult nonresident" may adopt a child. "Adult"
is defined as "a person eighteen years of age or
older." A.R.S. § 8-101(1). The statute does not
define "resident, " but that term is commonly
defined as "[o]ne who resides in a particular place
permanently or for an extended period." The American
Heritage Dictionary 1493 (5th ed. 2011). We cannot read
this statutory language, which plainly describes a living
person, to encompass a petitioner who has died before an
order of adoption has been entered.
In construing a statute, "[w]e consider the statute as a
whole, including its context within a broader statutory
scheme." Sundevil Power Holdings, LLC v. Ariz.
Dep't of Revenue, 240 Ariz. 340, ¶ 13, 379 P.3d
236, 240 (App. 2016). Thus, we must read § 8-119 in the
context of the other provisions of the adoption statutes,
which clearly anticipate a living petitioner. We find no
provision in our adoption statutes expressly allowing a
posthumous adoption, and in view of the statutory definitions
of adoptor and adoptee set forth in §§ 8-102 and
8-103, we cannot expand the power of the court described in
§ 8-119 to continue a proceeding as to a decedent.
See Van Ness, 69 Ariz. at 365, 213 P.2d at 900.
In support of a contrary conclusion, appellants primarily
rely on a published decision of a New Jersey superior court
in which the court granted a posthumous adoption. See In
re W.R. & L.R. for the Adoption of S.W., 989 A.2d
873, 875 (N.J.Super. Ct. Law Div. 2009). The court did so,
however, in reliance on a statutory provision that states,
"For good cause, the court may direct the entry of
judgment nunc pro tunc as of the date the action was
instituted." N.J. Stat. Ann. § 9:3-50(b); W.R.
& L.R., 989 ...