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In re Adoption of A.R.

Court of Appeals of Arizona, Second Division

December 27, 2016

In re the Adoption of A.R. Jr., A.R., and A.R.

         Appeal 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

          Doris M. Reed, Tucson Counsel for Minors

          Alfred 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 concurred.


          VÁSQUEZ, Presiding Judge

         ¶1 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 as well.

         ¶2 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.

         ¶3 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).

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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 ...

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