In Re the Adoption of A.R., A.-R., and -A.-R.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE THE ADOPTION OF A.R. JR., A.R., AND A.R.
Nos. 2 CA-JV 2016-0102 and CA-JV 2016-0106 (Consolidated)
Filed December 27, 2016
Appeal from the Superior Court in Pima County
No. B25793
The Honorable Jane Butler, Judge Pro Tempore
AFFIRMED
COUNSEL
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
OPINION
Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Miller concurred.
IN RE THE ADOPTION OF A.R.
Opinion of the Court
V Á S Q U E Z, 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).
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IN RE THE ADOPTION OF A.R.
Opinion of the Court
¶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,
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IN RE THE ADOPTION OF A.R.
Opinion of the Court
¶ 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 A.2d at 879.
Appellants have not cited, and we have not found, a similar
provision in Arizona’s statutory scheme for adoption.
¶9 Nor can we say that the juvenile court could have
issued a judgment nunc pro tunc in this matter. On this point, we
find persuasive the decision of the New Mexico Court of Appeals in
In re Adoption of Bradfield, 642 P.2d 214 (N.M. Ct. App. 1982). In that
case, the child to be adopted had died before a final hearing could be
held, and the appellate court determined the trial court lacked
jurisdiction to grant an adoption by entering the final order of
adoption nunc pro tunc. Id. at 215-18. Consistent with Arizona law
in regard to orders nunc pro tunc, the court determined that, while
such an order could “cure irregularities that do not affect the
jurisdiction of the court, it cannot serve to bring into existence an
adoption when no adoption could in fact be deemed to have existed
before.” Id. at 218; see also Valley Nat’l Bank of Ariz. v. Meneghin, 130
Ariz. 119, 124, 634 P.2d 570, 575 (1981) (explaining judgment nunc
pro tunc entered only when judgment previously rendered, except
when delay caused by court itself). In this case, the judgment had
not been rendered at the time of Joyce’s death; indeed, the hearing
required by A.R.S. § 8-115 had not yet been held. Under such
circumstances, no delay having been occasioned by the court and no
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IN RE THE ADOPTION OF A.R.
Opinion of the Court
judgment previously having been filed, a judgment nunc pro tunc is
not appropriate. See Meneghin, 130 Ariz. at 124, 634 P.2d at 575.
¶10 As below, however, appellants argue that a
posthumous adoption is permissible based on Arizona’s recognition
of the doctrine of equitable adoption. That doctrine, however, only
enforces in equity the benefits of adoption in the context of
inheritance. See In re Estate of Lamfrom, 90 Ariz. 363, 366-67, 368 P.2d
318, 320-21 (1962). Had the children sought to inherit from Joyce, a
hearing to establish whether an equitable adoption had been created
would be appropriate in the context of a probate proceeding. See id.
But the appellants instead asked that Joyce be allowed to legally
adopt the children. The doctrine of equitable adoption does not
provide such a remedy. See id.; see also In re Biehn’s Estate, 41 Ariz.
403, 412, 18 P.2d 1112, 1115 (1933).
¶11 Although we empathize with the unfortunate
circumstances presented in this matter, we cannot “read into a
statute something which is not within the manifest intention of the
legislature as gathered from the statute itself.” City of Phoenix v.
Donofrio, 99 Ariz. 130, 133, 407 P.2d 91, 93 (1965). For the reasons
stated, we cannot conclude the juvenile court abused its discretion.
¶12 The order of the juvenile court is affirmed.
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