Roberto F. v. Dcs

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ROBERTO F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, JIMMY S., TRACIE H., L.F., I.A.,
Appellees.
No. 1 CA-JV 13-0209
FILED 08-14-2014
Appeal from the Superior Court in Mohave County
No. S8015AD201200034
The Honorable Richard Weiss, Judge
VACATED, REVERSED, AND REMANDED
COUNSEL
Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee Arizona Department of Child Safety
Law Office of Michele Holden P.L.L.C., Kingman
By Michele Holden
Counsel for Appellees Jimmy S. and Tracie H.
ROBERTO F. v. DCS, et al.
Opinion of the Court
OPINION
Judge Kenton D. Jones delivered the opinion of the Court, in which
Presiding Judge Peter B. Swann joined and Judge Patricia K. Norris
specially concurred.
J O N E S, Judge:
¶1 The juvenile court terminated the parental rights of Roberto
F. (Father) to two minor children, L.F. and I.A. (the children), in late 2011.
While his appeal of that termination order was pending, the juvenile court,
in a separate action, granted a petition for adoption of the children in favor
of Jimmy S. and Tracie H. (Foster Parents). This Court later vacated the
juvenile court’s order terminating Father’s parental rights, and Father then
moved to set aside the adoption in the juvenile court. The court denied his
motion and Father timely appealed. On December 18, 2013, we issued an
order vacating the adoption as well as the order denying Father’s motion to
set aside the adoption, with a written decision to follow. This is that
decision.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father is the biological father of two minor children, L.F. and
I.A. In November 2011, Father’s parental rights were terminated as to the
children. Father timely appealed the termination order.
¶3 While Father’s termination appeal was pending before this
Court, the Arizona Department of Child Safety (DCS),1 on behalf of Foster
Parents, filed a separate action requesting the juvenile court allow the
Foster Parents to adopt the children. Following an adoption hearing, the
juvenile court granted that request and entered an order of adoption.
Father was not provided notice of the adoption petition, adoption hearing,
1 Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz.
2014) (enacted), the Arizona Department of Child Safety is substituted for
the Arizona Department of Economic Security in this matter. See ARCAP
27.
2
ROBERTO F. v. DCS, et al.
Opinion of the Court
or entry of the adoption order as his rights had been terminated. See Ariz.
Rev. Stat. (A.R.S.) § 8-106(B)(2).2
¶4 Subsequently, this Court vacated the order terminating
Father’s parental rights to the children. Roberto F. v. Ariz. Dep’t of Econ. Sec.,
232 Ariz. 45, 59-60, ¶ 73, 301 P.3d 211, 225-26 (App. 2013). Thereafter, this
Court’s mandate issued in Roberto F., finalizing the restoration of Father’s
parental rights. See Ariz. R.P. Juv. Ct. 107(H).
¶5 After we vacated the termination order, but before we issued
the mandate, Father moved the juvenile court to set aside the adoption
order, pursuant to Arizona Rule of Procedure for the Juvenile Court
(ARPJC) 85(A), which incorporates by reference Arizona Rule of Civil
Procedure 60(c). The juvenile court denied Father’s motion and Father
timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-
2101(A)(1).
ISSUE PRESENTED
¶6 Father asserts the juvenile court lacked jurisdiction3 to enter
the order of adoption while his appeal of the termination order was
pending. Specifically, Father argues that ARPJC 103(F) divested the
juvenile court of jurisdiction to grant the adoption petition while he was
appealing the order terminating his parental rights. Foster Parents, along
2 Absent material revisions after the relevant date, we cite a statute’s
current Westlaw version.
3 Three types of jurisdiction exist: “[s]ubject matter jurisdiction,
personal jurisdiction and jurisdiction to render a particular judgment.” Fry
v. Garcia, 213 Ariz. 70, 72 n.2, ¶ 9, 138 P.3d 1197, 1199 n.2 (App. 2006) (citing
Sil-Flo Corp. v. Bowen, 98 Ariz. 77, 81, 402 P.2d 22, 25 (1965)). “Subject matter
jurisdiction means the power to hear and determine a general class of cases
to which a particular proceeding belongs.” State ex rel. Milstead v. Melvin,
140 Ariz. 402, 404, 682 P.2d 407, 409 (1984). It is without question that the
juvenile court has the power to hear and adjudicate adoptions generally.
Ariz. Const. art. 2, § 15; A.R.S. § 8-202(B); see A.R.S. § 8-102.01. Therefore,
we address herein the third type of jurisdiction — whether the juvenile
court had jurisdiction to enter the order of adoption during the pendency
of a termination appeal. See Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921
P.2d 21, 23 (1996) (noting jurisdiction, in certain contexts, means “the
authority to do a particular thing”).
3
ROBERTO F. v. DCS, et al.
Opinion of the Court
with DCS, contend that ARPJC 103(F) cannot be read to limit the authority
of the juvenile court to act in a new matter (the adoption) concerning new
parties if the appealing parent does not obtain a stay of the termination
order under ARPJC 103(B).4 Absent a stay pursuant to ARPJC 103(B), Foster
Parents and DCS contend the juvenile court is free to proceed with the
adoption and is therefore not required to postpone the adoption proceeding
until the biological parent’s termination appeal process has concluded.
STANDARD OF REVIEW
¶7 We review issues of jurisdiction de novo. Thomas v. Thomas,
203 Ariz. 34, 35-36, ¶ 7, 49 P.3d 306, 307-08 (App. 2002); Murphy v. Bd. of
Med. Exam’rs, 190 Ariz. 441, 446 n.8, 949 P.2d 530, 535 n.8 (App. 1997). We
also review de novo the interpretation of statutes and court rules. Cranmer
v. State, 204 Ariz. 299, 301, ¶ 8, 63 P.3d 1036, 1038 (App. 2003).
DISCUSSION
I. Father’s Appeal of the Termination Order Divested the Juvenile
Court of Jurisdiction to Enter the Adoption.
¶8 A termination proceeding begins with the filing of a petition
by “[a]ny person or agency that has a legitimate interest in the welfare of a
child.” A.R.S. § 8-533(A). As applicable here, the juvenile court may sever
a parent-child relationship if it finds any of the grounds enumerated in § 8-
533(B) has been established by clear and convincing evidence and
concludes by the preponderance of the evidence that the termination of the
parent’s rights is in the child’s best interests. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005); Michael J. v. Ariz. Dep’t of Econ.
Sec., 196 Ariz. 246, 249, ¶ 12, 995 P.2d 682, 685 (2000). Entry of “[a]n order
terminating the parent-child relationship shall divest the parent and the
child of all legal rights, privileges, duties and obligations with respect to
4 Although it is true that in some instances an adoption proceeding
may contain entirely separate parties from a related termination
proceeding, that is not true in this case. Both DCS and Foster Parents were
parties to Father’s termination case. There were no “new” parties involved
in the adoption proceeding. The only difference was that Father was not
provided notice and, accordingly, did not participate.
4
ROBERTO F. v. DCS, et al.
Opinion of the Court
each other . . . .” A.R.S. § 8-539.5 “The order is conclusive and binding on
all persons from the date of entry.” A.R.S. § 8-538(A).
¶9 Adoption is a separate proceeding from an action to terminate
a parent-child relationship. An adoption proceeding commences with the
filing of an adoption petition by a “potential adoptive parent or parents, an
agency or the division,” which must contain specified information. A.R.S.
§ 8-109(A). Once the petition to adopt has been filed, an adoption hearing
is set by the juvenile court. A.R.S. § 8-111. Notice of the hearing must be
sent to, inter alia, all persons required to give consent to the adoption
pursuant to § 8-106; notice, however, need not be sent to a parent whose
rights have been terminated. A.R.S. § 8-106(B)(2). The juvenile court may
grant an adoption if the petitioner is able to demonstrate by a
preponderance of the evidence: (1) “the petitioner is a fit and proper person
to adopt;” and (2) the adoption “is in the best interests of the child to be
adopted.” Ariz. R.P. Juv. Ct. 84(B).
¶10 The question presented by Father’s appeal is whether the
notice of appeal of an order terminating a parent’s rights divests the
juvenile court, in a subsequently filed adoption proceeding, of jurisdiction
to proceed with the adoption. We conclude that it does.
A. Ariz. R.P. Juv. Ct. 103(F) Applies to Any Issue Presented to
the Juvenile Court.
¶11 ARPJC 103(A) allows any aggrieved party to file an appeal
with this Court from a final order of the juvenile court. ARPJC 103(F) sets
forth the circumstances under which the juvenile court possesses the legal
authority to act while that appeal is pending. It provides, in pertinent part:
During the pendency of an appeal, the juvenile court may
proceed within its legal authority on an issue remaining
before it or newly presented to it to the extent (1) the appellate
court has specifically authorized or directed the juvenile court
to rule on the issue; (2) the juvenile court’s ruling on the issue
would be in furtherance of the appeal; (3) applicable statutory
law or judicial rule confers continuing jurisdiction on the
juvenile court; (4) the juvenile court’s ruling on the issue
would not legally or practically prevent the appellate court
5 A.R.S. § 8-539 provides its own exception: the right of inheritance
and support terminates only upon entry of a final order of adoption rather
than the entry of an order terminating the parent-child relationship.
5
ROBERTO F. v. DCS, et al.
Opinion of the Court
from granting the relief requested on appeal; or (5) the issue
arises from a motion to dismiss the appeal filed by the
appellant and presented to the juvenile court for ruling at a
time before the clerk of the superior court forwards the record
to the appellate court pursuant to Rule 105(D).
Ariz. R.P. Juv. Ct. 103(F).
¶12 Therefore, our inquiry involves two steps: (1) does ARPJC
103(F) apply only to issues raised in the appealed termination case, or to
any newly raised issue, whether arising within the appealed case or in a
subsequently filed juvenile court action; and (2) if the latter, does the
granting of an adoption decree during the pendency of a termination
appeal fall within any of the circumstances under which the juvenile court
is authorized to proceed under ARPJC 103(F)?
¶13 This inquiry requires the interpretation of court rules and
statutes. When interpreting a court rule, we employ principles of statutory
construction. Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 8, 240 P.3d 1257, 1260
(App. 2010). When the language of a rule is clear and unambiguous, we
need not employ other methods of construction and simply give effect to
that language. Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027, 1030
(App. 2005). If the language is inconclusive or ambiguous, “we then
consider other factors such as [the rule or statute’s] context, subject matter,
effects, consequences, spirit and purpose.” Vega v. Sullivan, 199 Ariz. 504,
507, ¶ 8, 19 P.3d 645, 648 (App. 2001).
¶14 Contrary to Foster Parents’ contention, we conclude ARPJC
103(F)’s clear and unambiguous language does not limit its restrictive effect
to only those issues filed in the appealed case. ARPJC 103(F) states that
“during the pendency of an appeal, the juvenile court may proceed within
its legal authority on an issue remaining before it or newly presented to it
to the extent [certain circumstances exist] . . . .” We will not read into ARPJC
103(F) a limitation which is not expressly provided in the rule itself. See
Patches v. Indus. Comm’n of Ariz., 220 Ariz. 179, 182, ¶ 10, 204 P.3d 437, 440
(App. 2009) (“It is the rule of statutory construction that courts will not read
into a statute something which is not within the express manifest intention
of the Legislature as gathered from the statute itself.”) (internal quotations
omitted) (citation omitted).
¶15 Significant to our conclusion is the use of the term “juvenile
court” within ARPJC 103(F). That term is not defined within the ARPJC,
but is defined multiple times in Title 8 of the Arizona Revised Statutes
(Child Safety) as “the juvenile division of the superior court.” A.R.S. § 8-
6
ROBERTO F. v. DCS, et al.
Opinion of the Court
101(8) (governing adoption); A.R.S. § 8-201(20) (governing the juvenile
court); A.R.S. § 8-531(9) (governing termination of a parent-child
relationship). We “read rules and statutes in conjunction with each other
and harmonize them whenever possible.” Ruben M. v. Ariz. Dep’t of Econ.
Sec., 230 Ariz. 236, 240, ¶ 20, 282 P.3d 437, 441 (App. 2012). Therefore, the
plain language of ARPJC 103(F) divests the entire juvenile division of the
superior court from proceeding on issues presently before that division, or
newly presented to it, while an appeal is pending unless it is granted the
authority to proceed by one of the exceptions in ARPJC 103(F). The
adoption proceeding was a newly presented issue and, thus, the juvenile
court did not have the authority to proceed upon it unless the adoption fell
within one of the enumerated exceptions contained within ARPJC 103(F).
¶16 As our colleague’s special concurrence correctly notes, ARPJC
103 governs the rights and procedures attendant to an appeal from a final
juvenile court order. See infra ¶ 38. The special concurrence concludes
ARPJC 103(F) can be applied only to issues arising within the appealed case,
basing its reasoning on the structure of ARPJC 103 and the use of the terms
“an appeal,” and “the appeal” throughout its subsections. See infra ¶ 38.
While we acknowledge that ARPJC 103 refers to the specific appeal taken
by the aggrieved party from a final juvenile court order, we do not agree
that the use of those terms undermines our conclusion that ARPJC 103(F)
applies also to issues arising in a separately filed case that impact the
appeal. On this point, we note that ARPJC 103(F) defines the juvenile
court’s authority to proceed on “an issue” — not “a case.” ARPJC 103(F)(4)
is clearly intended to preserve the status quo in regard to the subject matter
of an aggrieved party’s appeal by preserving, uncompromised, the relief
sought by that party on appeal. To allow the relief sought in an appeal to
be frustrated merely because there happens to be a case involving the same
child with a different case number would encourage gamesmanship and
thwart the rule’s intent. Here, the court proceeded to determine an issue
that directly undermined the appellate court’s ability to grant the relief
requested on appeal, as we explain below, and we cannot suppose that the
rule was drafted with an eye toward such a result.
B. The Exceptions of Ariz. R.P. Juv. Ct. 103(F) Are Inapplicable.
¶17 Upon the filing of an appeal, ARPJC 103(F) divests the
juvenile court of the legal authority to act upon issues “remaining before it
or newly presented to it,” unless the matters to be ruled upon meet certain
specific criteria delineated within ARPJC 103(F)(1) through (5). Of the five
exceptions, only subsection (4) is pertinent to this case. Therefore, the
juvenile court would have been within its authority to grant the adoption if
its “ruling on the issue would not [have] legally or practically prevent[ed]
7
ROBERTO F. v. DCS, et al.
Opinion of the Court
the appellate court from granting the relief requested [by Father] on [his
termination] appeal.” Ariz. R.P. Juv. Ct. 103(F)(4).
¶18 Here, Father sought within his termination appeal to have his
parental rights restored and, following restoration, requested a remand to
the juvenile court in order for the court to implement an appropriate case
plan. The granting of the adoption, however, both legally and practically
prevented this Court from granting the requested relief, in violation of
ARPJC 103(F)(4). “On entry of the decree of adoption, the relationship of
parent and child between the adopted child and the persons who were the
child’s parents before entry of the decree of adoption is completely severed
and all the legal rights, privileges, duties, obligations and other legal
consequences of the relationship cease to exist, including the right of
inheritance.” A.R.S. § 8-117(B) (emphasis added). Therefore, the adoption
of the children, while Father’s termination appeal was pending, effectively
terminated his parental rights a second time, and did so without his
knowledge or consent. Father was then forced to move the juvenile court
to set aside the adoption, and in doing so, bore the additional burden of
having to demonstrate grounds for setting aside the adoption by clear and
convincing evidence. Ariz. R.P. Juv. Ct. 85(D). After the court denied his
motion to set aside the adoption, Father was required to initiate an appeal
of that decision to obtain the relief — restoration of his parental rights — he
had ostensibly previously obtained in his prior appeal from the termination
order.
¶19 DCS argues Father’s termination appeal was not mooted by
the adoption (and therefore the adoption did not legally or practically
prevent the relief Father sought) because this Court ultimately vacated the
termination order as Father requested, meaning ARPJC 103(F)(4) was not
implicated. Roberto F., 232 Ariz. at 59-60, ¶ 73, 301 P.3d at 225-26. We
disagree for several reasons. First, DCS fails to take into account that the
Roberto F. Court was apparently not made aware of the adoption and, thus,
never had the issue of mootness before it. Second, whether an underlying
juvenile court action may moot the appeal is not the standard, nor is it a
consideration, under ARPJC 103(F)(4). Third, the argument ignores that
although this Court vacated the judgment terminating Father’s parental
rights, Father remained legally and practically prevented from realizing the
relief he was granted by this Court’s decision as a result of the by-then
concluded adoption proceedings and concomitant juvenile court orders
8
ROBERTO F. v. DCS, et al.
Opinion of the Court
that had entered during the pendency of Father’s termination appeal, of
which DCS, Foster Parents, and the juvenile court were fully aware.6
¶20 On this point, we find persuasive the reasoning set forth in In
re JK, 661 N.W.2d 216 (Mich. 2003). Although in that case there was a
statutory provision specifically prohibiting the granting of an adoption
during the pendency of a termination appeal, Mich. Comp. Laws
§ 710.56(2), the Michigan Supreme Court also found the basic structure of
the judicial system made such a practice invalid:
[T]o allow such an adoption to occur would be to distort the
nature of this Court’s review of the termination decision by
requiring, as an effective precondition to the reversal of the
termination order of the trial court, that we be prepared also
to undo an adoption that has become a fait accompli. Parents
whose rights have been terminated by the trial court are
entitled to appellate review of this decision without that
review being compromised by the specter of appellate courts
having to undo an adoption as a concomitant act to the
granting of relief for those parents. Such a result is simply
contrary to the structure of the justice system established by
our constitution and laws.
In re JK, 661 N.W.2d at 217; see State ex. rel. T.W. v. Ohmer, 133 S.W.3d 41, 43
(Mo. 2004) (“Proceeding with adoption while the termination is reviewed
on appeal compromises the parent’s right to appellate review by requiring,
as an effective precondition to reversal of the termination, that the appellate
6 DCS also cites Jordan C. v. Arizona Department of Economic Security,
223 Ariz. 86, 92 n.8, ¶ 15, 219 P.3d 296, 302 n.8 (App. 2009), in support of its
contention that Father’s relief was not legally or practically precluded by
the children’s adoption. In Jordan C., this Court reversed the termination of
a mother’s parental rights, finding there was insufficient evidence to
establish one of the statutory grounds for termination. Id. at 89, ¶ 2, 219
P.3d at 299. While the mother’s termination appeal was pending, one of the
children was adopted; the child’s counsel then filed a “motion to strike or
dismiss” the appeal pertaining to that child as moot. Id. at 92 n.8, 219 P.3d
at 302 n.8. The court denied the motion and declined to issue an advisory
opinion on the effect its decision would have upon the adoption order. Id.
DCS argues this shows the adoption was not void and did not prevent the
court from granting the relief sought by mother on appeal. Jordan C.,
however, does not stand for the premise DCS asserts, as the issue of the
adoption’s validity was not properly before the court on appeal, and it
therefore declined to address the issue.
9
ROBERTO F. v. DCS, et al.
Opinion of the Court
court be prepared to address a separate adoption proceeding.”); see also
A.R.S. § 8-235(A) (granting to “[a]ny aggrieved party in any juvenile court
proceeding” the right to appeal to this Court from a final juvenile court
order).
¶21 We believe this result also comports with our supreme court’s
intent in promulgating the Arizona Rules of Procedure for the Juvenile
Court as it protects the best interests of the children at issue. See Xavier R.
v. Joseph R., 230 Ariz. 96, 98, ¶ 6, 280 P.3d 640, 642 (App. 2012) (noting that
“we interpret the rules of juvenile procedure ‘in a manner designed to
protect the best interests of the child’”) (quoting Ariz. R.P. Juv. Ct. 36); Ariz.
R.P. Juv. Ct. 67. The practice of granting an adoption while a parent appeals
a termination order potentially harms the children’s interests in
permanency and stability, and possibly traumatizes the children at issue
with constant changes to their caretakers’ parenting status. See Ariz. R.P.
Juv. Ct. 85 comm. cmt. (“It was the opinion of the Committee that
proceedings to set aside an adoption be more formal than other types of
juvenile proceedings due to the potential impact on all parties, particularly
the child.”); In re JK, 661 N.W.2d at 225 (noting this procedural position
leaves the court with a decision that will impose suffering on either the birth
parent(s) or adoptive parent(s), and that “[i]t is in the interests of both the
natural parent and the child . . . that the termination decision not be
reviewed . . . under the specter of having to remove the child from the
adoptive parents . . .“); Kobinski v. Nev. Welfare Div., 738 P.2d 895, 898 (Nev.
1987) (noting that an adoption while a parent’s termination appeal is
pending, and possible reversal of the termination decision, raises “the
possibility of future trauma to the child”); In re J.R.G., 624 So. 2d 273, 275
(Fla. Dist. Ct. App. 1993) (affirming the termination of the parent’s rights,
but noting that if it had reversed the termination order, the unwinding of
an adoption ordered pending the termination appeal “could have caused
serious consequences [for the children and interested adults]”).
¶22 Parents have a protected, fundamental liberty interest in the
“care, custody, and management of their child.” Stewart v. Superior Court,
163 Ariz. 227, 229, 787 P.2d 126, 128 (App. 1989) (citing Santosky v. Kramer,
455 U.S. 745, 753 (1982)); see Pima Cnty. Juvenile Severance Action No. S-
120171, 183 Ariz. 546, 548, 905 P.2d 555, 557 (App. 1995). Although this
interest is not without limits, see Graville v. Dodge, 195 Ariz. 119, 124, ¶ 20,
985 P.2d 604, 609 (App. 1999), the interest “does not evaporate simply
because they have not been model parents or have lost temporary custody
of their child to the State.” Santosky, 455 U.S. at 753. To this effect, we agree
with the reasoning set forth by the Oklahoma Supreme Court facing a
similar circumstance:
10
ROBERTO F. v. DCS, et al.
Opinion of the Court
The determination that a child is eligible for adoption without
parental consent does not merely infringe that fundamental
liberty interest, it is a significant step in destroying it. For this
reason, the result achieved in an adoption proceeding is not
the only consideration even if the result is perceived to further
the best interests of the child. Parents must be provided the
opportunity to fully and finally litigate the issue of their
child’s eligibility for adoption, including an appeal, before an
adoption can be finalized and the child is permanently
removed from the family.
The interests of all parties to an adoption are furthered by
speedy and efficient proceedings. “But the Constitution
recognizes higher values than speed and efficiency.” [Stanley
v. Illinois, 405 U.S. 645, 656 (1972)]. Until the issue of a child’s
eligibility for adoption has been finally determined, the child
and the natural parents “share a vital interest in preventing
erroneous termination of their natural relationship.”
Santosky, 455 U.S. at 760. Thus, the best interests of the child
are not furthered by judicial shortcuts, intentional or
unintentional, which reach an expeditious result but fail to
recognize the fundamental nature of the right of parents to
the care, custody, and management of their child.
In re Adoption of L.D.S., 155 P.3d 1, 8, ¶¶ 12-13 (Okla. 2006) (supplemental
opinion on rehearing).
¶23 Therefore, we hold ARPJC 103(F) divests the juvenile court of
jurisdiction to grant an adoption order while a parent, whose consent
would otherwise be required for the adoption, is appealing an order
terminating his or her parental rights.7
II. Consideration of Other Rules of Procedure for the Juvenile Court.
A. Ariz. R.P. Juv. Ct. 79(A)(3).
¶24 None of the parties cited ARPJC 79(A), which sets forth
certain information a petitioner must include in a petition to adopt filed
with the juvenile court. For instance, and as pertinent here, the rule directs
the petitioner to state in the adoption petition “[w]hether any termination
of parental rights proceeding is pending, including any appeal[.]” Ariz.
7 As we reach our conclusion based upon the language of ARPJC
103(F), we do not reach Father’s due process arguments.
11
ROBERTO F. v. DCS, et al.
Opinion of the Court
R.P. Juv. Ct. 79(A)(3). It is self-evident that, consistent with the preclusive
effect of ARPJC 103(F), this requirement is intended to inform the juvenile
court of the pendency of an appeal from a termination order. Requiring
such disclosure underscores the intent of our supreme court that absent the
consent of the parents, or the completion of a parent’s appeal of a
termination order, the juvenile court is not to proceed with an adoption
proceeding. A.R.S. § 8-106; Ariz. R.P. Juv. Ct. 81, 103(F).
¶25 Moreover, the substance of ARPJC 79(A) itself supports our
conclusion. See City of Phx. v. Superior Court, 144 Ariz. 172, 176, 696 P.2d
724, 728 (App. 1985) (“Statutory construction requires that provisions of a
statute be read and construed in the context of related provisions and in
light of its place in the statutory scheme.”). ARPJC 79(A) provides that a
petition to adopt must provide information regarding: (1) whether the child
to be adopted is subject to the requirements of the Indian Child Welfare Act;
and if so, the petition must also include, inter alia, whether the child is a
ward of a tribal court or is reasonably believed to be a resident or
domiciliary of an Indian reservation; (2) whether all necessary consents to
the adoption have been obtained, noting any exceptions provided by law;
(3) whether any termination of parental rights proceedings, including any
appeals, are pending; and, if applicable, (4) whether approval has been
granted through the Interstate Compact on the Placement of Children
(ICPC).8 Id.
¶26 Each piece of information required by ARPJC 79(A) to be
provided to the juvenile court seeks to clarify and establish the juvenile
8 The ICPC is a primarily procedural statute, adopted by all 50 states,
that is applicable to adoptions. J.D.S. v. Franks, 182 Ariz. 81, 89, 893 P.2d
732, 740 (1995). Its purpose is “to foster cooperation among the states in the
placement of children and to promote ‘[a]ppropriate jurisdictional
arrangements for the care of children.’” Id. (quoting A.R.S. § 8-548, art. I).
The ICPC provides a “system of coordination among the states when a child
born in one state is placed for adoption in another state.” Id. It requires
certain information “be supplied to the state to which the child is moving,”
as well as the approval of the child’s placement from both the sending
state’s and receiving state’s ICPC administrators. Id. Absent compliance
with the requirements of the ICPC and the applicable laws of the receiving
state concerning the placement of children, “the ‘sending agency’ shall not
send the child to another state for placement.” Id. (citing A.R.S. § 8-548, art.
III(a)).
12
ROBERTO F. v. DCS, et al.
Opinion of the Court
court’s authority to proceed with the adoption. See Michael J. Jr. v. Michael
J. Sr., 198 Ariz. 154, 156, ¶ 10, 7 P.3d 960, 962 (App. 2000) (“The [Indian
Child Welfare] Act grants tribal courts exclusive jurisdiction over child
custody proceedings involving Indian children domiciled on a reservation
. . . and concurrent but presumptively tribal jurisdiction in proceedings
involving Indian children not domiciled on a reservation.” (citing Indian
Child Welfare Act of 1978, 25 U.S.C. § 1911(a)-(b)); Lee v. Superior Court, 25
Ariz. App. 55, 57, 540 P.2d 1274, 1276 (1975) (“Parental consent is a
jurisdictional prerequisite in the absence of a showing of the existence of
the specific statutory conditions or exceptions rendering consent
unnecessary.”); Franks, 182 Ariz. at 92-93, 893 P.2d at 743-44 (although
noting “[c]ompliance with the ICPC is not a prerequisite for exercising
jurisdiction,” stating a possible sanction for noncompliance with the ICPC
could be the “retention of jurisdiction in the sending state”). Put otherwise,
the information sought by ARPJC 79(A) is jurisdictional or procedural in
nature.9
¶27 Further, if the juvenile court was within its jurisdiction to
proceed with an adoption while a parent appealed an order of termination,
the portion of ARPJC 79(A)(3) requiring a petitioner to inform the juvenile
court of a pending appeal of a termination order would be rendered
meaningless as the information would have no bearing or import upon the
action taken by the court. See Ariz. Dep’t of Rev. v. Action Marine, Inc., 218
Ariz. 141, 143, ¶ 10, 181 P.3d 188, 190 (2008) (“We construe related statutes
together, and avoid interpretations that render statutory provisions
meaningless, unnecessary, or duplicative.”) (internal citations omitted).
B. Ariz. R.P. Juv. Ct. 85(A)
¶28 Foster Parents argue that a portion of ARPJC 85(A) would be
rendered meaningless if the juvenile court was precluded from granting an
adoption decree by the filing of a notice of appeal from an order terminating
a parent-child relationship. We disagree.
¶29 ARPJC 85(A) provides: “A person seeking to set aside a final
order of adoption shall file a motion to set aside the adoption with the clerk
of the court. The motion shall allege grounds only as permitted by Rule
60(c), Ariz. R. Civ. P.” Arizona Rule of Civil Procedure 60(c), in turn,
9 It is for this reason we cannot agree with the special concurrence’s
statement that the obvious purpose of ARPJC 79(A)(3) disclosure
requirement is so the information may be considered by the juvenile court
in determining whether the adoption is in the best interests of the child. See
infra ¶ 39.
13
ROBERTO F. v. DCS, et al.
Opinion of the Court
delineates several grounds upon which a party may obtain relief from a
final judgment or order:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(d);
(3) fraud . . . , misrepresentation or other misconduct of an
adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged, or
a prior judgment on which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the
judgment.
¶30 Foster Parents argue that “if an appeal of a termination order
precludes all subsequent action related to that order, including an adoption
based upon that order, there could never be an adoption judgment in need
of being set aside for the reason set forth in Rule 60(c)(5).” The special
concurrence likewise makes this point. See infra ¶ 39. We find this
argument unpersuasive. ARPJC 85(A) allows for an adoption to be set aside
pursuant to any of the grounds set forth in Rule 60(c), not just Rule 60(c)(5).
Therefore, our holding does not render ARPJC 85(A)’s incorporation of
Rule 60(c) meaningless nor impact ARPJC 85(A) in any meaningful way; it
merely shifts the applicable ground for setting aside the adoption order,
under the circumstances in this case, to Rule 60(c)(4), as an order of
adoption entered without jurisdiction is void. See In re Adoption of Hadtrath,
121 Ariz. 606, 608, 592 P.2d 1262, 1264 (1979) (“A judgment may be attacked
as void upon its face if . . . jurisdiction to render the particular judgment or
order entered [is lacking].”). Moreover, that Rule 60(c)(5) may apply less
frequently to motions to set aside an adoption does not render that
subsection meaningless either, as it still clearly has applications to civil
orders and judgments.
III. An Application for a Stay of a Termination Order Is Not Required
¶31 Foster Parents argue that the juvenile court is within its
authority to order the adoption during the pendency of a termination
14
ROBERTO F. v. DCS, et al.
Opinion of the Court
appeal absent a parent requesting and obtaining a stay of the termination
order. See A.R.S. § 8-235(B); Ariz. R.P. Juv. Ct. 103(B). This can only be the
case if the jurisdictional strictures of ARPJC 103(F) are ignored.
¶32 As noted previously, the final order terminating the parent-
child relationship is “conclusive and binding on all persons from the date
of entry.” A.R.S. § 8-538(A). And there is no question that order “shall not
be suspended and the execution of the order shall not be stayed pending
the appeal, except that the appellate court may, by order, suspend or stay
the execution of the order if suitable provision is made for the care and
custody of the juvenile.” A.R.S. § 8-235(B); see Ariz. R.P. Juv. Ct. 103(B). In
the immediate case, the order that is not suspended or stayed is the
termination order. Clearly, if the termination order is not suspended or
stayed, Father’s parental rights remain terminated during his appeal.10
However, Foster Parents’ contention that a parent must request a stay to
avoid the outcome that occurred in this case is premised upon the
assumptions that (1) Father had knowledge of the subsequent adoption
action and the need for a stay (which he did not), and (2) Father’s filing of
an appeal had no impact upon the jurisdiction of the juvenile court to
proceed with the adoption, which is incorrect. See supra Part I (A) & (B).
IV. Termination by Court Order.
¶33 Consent to an adoption is normally required of the biological
or adoptive parents. A.R.S. § 8-106(A). Consent is not required, however,
if the parent’s rights have been “terminated by court order.” A.R.S. § 8-
106(B)(2). Foster Parents argue that “court order” does not equate to “court
order, not subject to appeal,” and that the adoption was valid because, at
the time of entry, Father’s rights had been terminated by the juvenile court
order and all other requirements for the adoption had been met. We find
this argument unavailing as well.
10 The special concurrence contends our holding that the juvenile court
is divested of jurisdiction to grant an adoption while a parent appeals a
termination order renders the termination order “neither conclusive nor
binding.” See infra ¶ 40. But our holding does not go so far. During the
pendency of the appeal, the parent and child will still be divested “of all
legal rights, privileges, duties and obligations with respect to each other”
except for the child’s right to inherit and receive support from the parent.
A.R.S. § 8-539. For example, DCS would not be required to continue
providing services to the parent pending the appeal, nor would the parent
be able to exercise visitation rights. Our holding simply precludes a
termination appeal from being frustrated by an expeditious adoption.
15
ROBERTO F. v. DCS, et al.
Opinion of the Court
¶34 Article 6, Section 5(5), of the Arizona Constitution grants to
the supreme court the power to “make rules relative to all procedural
matters in any court in this state.” Maricopa Cnty. Juvenile Action No. J-
84536-S, 126 Ariz. 546, 547, 617 P.2d 54, 55 (App. 1979). Employing this
power, the supreme court promulgated the ARPJC. Id. It is within the
legislature’s authority to “enact procedural rules that supplement, but do
not contradict,” the rules promulgated by our supreme court. David G. v.
Pollard ex rel. Cnty. of Pima, 207 Ariz. 308, 311, ¶ 15, 86 P.3d 364, 367 (2004).
¶35 In the instant case, ARPJC 103(F) and § 8-106 are not in
conflict. ARPJC 103(F) merely divests the juvenile court of jurisdiction to
proceed with an adoption during the pendency of the termination appeal.
After the termination appeal has concluded, the party petitioning for
adoption must then still obtain any remaining consents required by § 8-106
in order for the juvenile court to grant an adoption.
CONCLUSION
¶36 As ARPJC 103(F) operates to preclude the juvenile court from
entering an adoption order while a parent appeals a termination order, the
adoption decree in this case was void. We therefore vacate the juvenile
court’s adoption order and the denial of Father’s motion to set aside the
adoption, and we remand the case to the juvenile court for proceedings
consistent with this opinion.
N O R R I S, Judge, specially concurring in the result:
¶37 With respect, I do not agree with the majority’s conclusion
that Arizona Rule of Procedure for the Juvenile Court 103(F), and
subsection (4) in particular, “divests” the juvenile court of jurisdiction to
enter an order of adoption during the pendency of a parent’s appeal from
an order terminating his or her parental rights. I concur, however, in the
result reached by the majority.
¶38 Rule 103 governs appeals from final orders of the juvenile
court. As the majority recognizes, Rule 103(F) allows the juvenile court to
address and resolve certain matters during the pendency of an appeal.
Although the rule does not explicitly limit these matters to the appealed
case, to construe the rule as restricting the authority of the juvenile court to
act in other, separate cases, as the majority does here, conflicts with the
wording and overall structure of Rule 103 and its subparts. See generally
Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 8, 240 P.3d 1257, 1260 (App. 2010)
16
ROBERTO F. v. DCS, et al.
Norris, J., Specially Concurring
(providing guidelines for construing court rules). For example, Rule 103(A)
speaks in terms of a particular appeal and describes “the parties to the
appeal”; Rule 103(B) authorizes an appellate court to suspend or stay the
execution of an order of the juvenile court in “the appeal”; and Rule 103(F)
allows the juvenile court to proceed within its legal authority during “the
pendency of an appeal,” subject to certain exceptions.
¶39 Other juvenile court rules also undermine the majority’s
conclusion. For example, Rule 85(A) authorizes a person to seek to set aside
an adoption alleging those grounds as permitted by Arizona Rule of Civil
Procedure 60(c), the rule for vacating civil judgments. Under Rule 60(c)(5),
a court may relieve a party from a judgment when it is based on a prior
judgment that has been “reversed or otherwise vacated.” Accordingly,
Rule 85(A) authorizes the juvenile court to vacate a judgment which is
based on a prior judgment that has been reversed or otherwise vacated. If,
as the majority concludes, Rule 103(F)(4) divests the juvenile court of
jurisdiction to act in a separate proceeding, then relief under Rule 60(c)(5),
as incorporated in Rule 85(A), would seldom if ever be needed. And, as the
majority notes, Rule 79(A)(3) requires an adoption petitioner to disclose in
the adoption petition whether “any termination of parental rights
proceedings is pending, including any appeal.” As the majority correctly
notes, this disclosure requirement is designed to “inform the juvenile court
of the pendency of an appeal from a termination order.” See supra ¶ 24. The
obvious purpose of this disclosure requirement is to enable the juvenile
court to consider whether granting the adoption during the pendency of
the appeal would be in the best interests of the child. Rule 79(A)(3) would
have little to no practical purpose if Rule 103(F), and more particularly
subsection (4), divests the juvenile court of jurisdiction to enter an order of
adoption during the pendency of an appeal from a termination order.
¶40 Arizona statutes concerning termination of parental rights
and adoption also undermine the majority’s conclusion. Section 8-538(A)
(2014) states that a termination order is “conclusive and binding on all
persons from the date of entry.” Further, A.R.S. § 8-106(B)(2) (2014) does
not require a parent whose parental rights have been terminated to consent
to adoption. Although a parent may appeal a termination order, see infra ¶
42, these statutes have the combined effect of investing the juvenile court
with jurisdiction to grant an adoption pending the parent’s appeal of a
termination order. If, however, the juvenile court is divested of jurisdiction
to grant an adoption when an appeal from a termination order is pending,
then the termination order is neither conclusive nor binding and A.R.S. § 8-
106(B)(2) is of limited effect.
17
ROBERTO F. v. DCS, et al.
Norris, J., Specially Concurring
¶41 For these reasons, I disagree with the majority’s conclusion
that Rule 103(F) divests the juvenile court of jurisdiction to grant an
adoption during the pendency of a parent’s appeal from a termination
order. I agree with the majority, however, that the juvenile court’s order
refusing to set aside the adoption order cannot stand. As discussed above,
under Rule 85(A) the juvenile court may relieve a party from a judgment
when it is based on a prior judgment that has been reversed or otherwise
vacated. That is precisely what happened here.
¶42 As the majority correctly notes, parents have a protected
fundamental liberty interest in the care, custody, and management of their
children. See supra ¶ 22. And, a parent is entitled to appeal an order
terminating his or her parental rights. A.R.S. § 8-235(A) (2014) (any
aggrieved party may appeal from final juvenile court order). Further,
reversal of a judgment generally restores the parties to their original
positions. Markel v. Transamerica Title Ins. Co., 103 Ariz. 353, 362, 442 P.2d
97, 106 (1968), overruled on other grounds by Burch & Cracchiolo, P.A. v.
Pugliani, 144 Ariz. 281, 697 P.2d 674 (1985). Under these authorities, the
juvenile court should have vacated the adoption order. Accordingly, I
concur in the result and, thus, in the relief granted by the majority.
:gsh
18