The Court of Appeals of Arizona, Division 1, affirmed a ruling by Maricopa County Superior Court Judge Suzanne E. Cohen, holding that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not require Arizona to retroactively deem a woman to be a legal parent of children adopted by her same-sex spouse at a time when Arizona did not recognize their same-sex marriage or allow second-parent adoptions. Judge Jon W. Thompson wrote the opinion for the unanimous panel in Doty-Perez v. Doty-Perez, 2016 WL 7477722 (Dec. 29, 2016).
Susan and Tonya began living together in October 2010. Tonya adopted a child, who is not the subject of this appeal, two months later. Susan and Tonya were legally married in Iowa in July 2011, but at all relevant times for this case were residents of Arizona. After their marriage, they agreed that Tonya would adopt four special needs children from foster care, intending to raise the children together as co-parents. If Arizona had allowed for same-sex couples jointly to adopt children, they would have done so, but at the time of the adoptions, Arizona did not recognize their Iowa marriage and prohibited same-sex partner adoptions.
Their relationship later eroded. Susan alleges that on April 8, 2014, as their relationship was ending, she asked Tonya for consent to adopt the children through a second-parent or step-parent adoption, but Tonya refused. Susan moved out of the marital residence on April 12, 2014, and did not file a petition to adopt the children, which would have been futile without Tonya’s consent. On October 7, 2014, the 9th Circuit, which covers Arizona, struck down same-sex marriage bans in Latta v. Otter, 771 F.3d 456, and on October 17, 2014, in Majors v. Horne, 14 F. Supp.3d 1313 (D. Ariz.), the federal district court struck down Arizona’s ban and enjoined its enforcement. The state decided not to appeal the district court’s order. Susan subsequently filed a “Petition for Dissolution of Non-Covenant Marriage Without Minor Children” and requested in loco parentis visitation rights with the children, on April 14, 2015, subsequently amending her petition to “Marriage WITH Children” and requesting joint legal decision making and parenting time.
Just months later, the U.S. Supreme Court decided Obergefell, holding that same-sex couples had a fundamental due process and equal protection right to marry and to have out-of-state marriages recognized, and Susan followed up in July 2015 with a new “Motion to Find Petitioner a Parent of Minor Children and Memorandum in Support of Amended Petition for Dissolution With Children.” Judge Cohen denied Susan’s petition to be declared a legal parent of the four children, finding that although she had proven by a preponderance of the evidence that the parties would have jointly adopted the children had Arizona allowed such adoptions, Susan had failed to file a second-parent adoption request after October 17, 2014, when Arizona came under an obligation to recognize the Iowa marriage and afford Susan the rights that a step-parent would have to seek to adopt her spouse’s children, and that Tonya, the legal parent, had refused to consent to a step-parent adoption by Susan, as she had the right to do.
The appellate panel agreed with Tonya’s argument that there was no support in Arizona case law for the concept of de facto parent, thus disposing of one of Susan’s arguments out of hand. (The Maine Supreme Judicial Court issued a contrary opinion on the de facto parent issue just weeks later in Thorndike v. Lisio, 2017 Me. LEXIS 10, 2017 ME 14, 2017 WL 218165 (Jan. 19, 2017).)
“We find the dispositive issue is whether, as a matter of law, if a married person adopts a child, that person’s spouse is also deemed or presumed to be a legal parent, with all the legal rights and obligations attached to that status, merely because the couple intended to adopt together,” wrote Judge Thompson. “We think not.”
In light of Obergefell, Susan could effectively argue that Arizona’s failure to recognize the women’s Iowa marriage or to allow legally-married same-sex couples to adopt at the time Tonya adopted the children was a violation of the 14th Amendment, and the court conceded that point. “However,” wrote Thompson, “we do not read Obergefell to support Susan’s paramount contention that the right of same-sex couples to marry and have their marriages recognized under the Fourteenth Amendment of the U. S. Constitution requires that states retroactively modify adoptions by individuals in same-sex marriages who would have jointly adopted, if they had been allowed to do so.”
The court held that applying ordinary rules of statutory construction to the Arizona adoption law, Susan was “not entitled to parental status or full legal parental rights under any of the relevant statutory provisions,” because under Arizona’s statute there is no presumption “granting legal parental rights or obligations to a non-adoptive spouse merely because of her marriage to a person who has adopted a child. To be vested with such rights and to be so beholden,” Thompson continued, “an individual, either separately, or, if married, jointly with another individual, must formally adopt the child. To be sure, in light of Obergefell, [the statute’s] language that ‘a husband and wife may jointly adopt’ must be interpreted to also mean that ‘a wife and wife’ or ‘husband and husband’ may jointly adopt. However, the adoption statute’s use of the permissive ‘may’ indicates there is no presumption of parentage for a non-adoptive spouse. To apply such a presumption would be to ignore an adoptive parent’s spouse’s individual agency to decide whether to directly and deliberately assume the role of a legal parent by taking the steps necessary to establish a legal relationship with the adopted child.”
Thompson pointed out that the statute provides that upon adoption the adopting parent and the child have a legal parent-child relationship, but it does not state that upon adoption the child automatically has such a relationship with the adopting parent’s legal spouse, and that Susan’s attempt to get the court to adopt such a meaning would be contrary to the legislature’s intent in passing the statute. “Additionally,” wrote Thompson, “the clear interpretation of [the statute’s] definition of a legal parent is that, except in the case of biology, the only legal mechanism that may establish legal parenting status and attach the associated rights and obligations is an order of adoption. Thus, we cannot order legal parent status for Susan, despite the fact that the parties intended to adopt the children together, but did not only because it was legally impermissible at the time, and Tonya later refused to consent to Susan petitioning for adoption of the four children, prior to their divorce and after same-sex adoptions were legal in Arizona.”
Thompson asserted that the court was “without authority to confer legal parent status on Susan when she never actually petitioned the court to acquire that status while she was still married to Tonya.” (Emphasis in original) “While we empathize with Susan because our holding leaves her without parental rights and obligations for four children she loves, provided and cared for,” concluded Thompson, “the relevant statutes do not support a contrary conclusion.”
Susan is represented by Leslie A.W. Satterlee and Markus W. Risinger of Gregg R. Woodnick PLLC, Phoenix. Tonya is represented by Keith Berkshire and Megan Lankford of Berkshire Law Office PLLC, also in Phoenix. Susan could seek review from the Arizona Supreme Court.