Adoption of Hammer, In re

• Decision Date: 27 July 1971
• Docket Number: Nos. 1,CA-CIV,s. 1
• Citation: 487 P.2d 417,15 Ariz.App. 196
• Parties: In the Matter of the ADOPTION OF Laurie Marie HAMMER, Minor, and In the Matter of the Adoption of Kristina Lynn Hammer, Minor. Alexandra TROSKA, Appellant, v. Christine KEKOVICH, Appellee. 1328, 1 1329.
• Court: Arizona Court of Appeals

Page 417

487 P.2d 417

15 Ariz.App. 196

In the Matter of the ADOPTION OF Laurie Marie HAMMER, Minor, and In the Matter of the Adoption of Kristina Lynn Hammer, Minor.

Alexandra TROSKA, Appellant, v. Christine KEKOVICH, Appellee.

Nos. 1 CA-CIV 1328, 1 CA-CIV 1329.

Court of Appeals of Arizona, Division 1, Department B.

July 27, 1971.

Rehearing Denied Sept. 30, 1971.

Review Denied Oct. 27, 1971.

Lurie & Friedman by Steven M. Friedman, Phoenix, for appellant.

Moise Berger, Maricopa County Atty. by Elizabeth J. Stewart, Deputy County Atty., Phoenix, for appellee.

JACOBSON, Presiding Judge.

These consolidated appeals come to us from the dismissals of a natural mother's petitions to vacate orders of adoption of her two minor children, entered some five years prior to the filing of the petition.

There were originally two petitions for the adoption of the minor children involved in this consolidated matter filed in 1963 by the Maricopa County Attorney acting pursuant to A.R.S. § 8--102, subsec. B (1956), on behalf of the paternal grandparents of the children involved. These original adoption petitions were accompanied by the written consent to adoption signed by the appellant, and these adoption proceedings became final in 1964.

On October 8, 1969, appellant filed petitions to vacate the adoptions. These were not filed as independent proceedings, but rather as a part of the original adoption proceedings. These petitions alleged that prior to granting her consent to the original adoptions appellant had been informed by her physician that she suffered from a condition known as glomerulonephritis, which was terminal and because of this information she gave her consent to the adoption; that this information subsequently proved to be incorrect and therefore her consent given under this mistake of fact was invalid. There were no allegations that the adoptive parents were in any manner responsible for this medical advice being given to appellant.

Appellant also alleged the existence of a secret agreement between herself and the adoptive parents under which the adoptive parents agreed that appellant would continue to live with the adoptive parents 'as long as possible'; that appellant would continue to have full and liberal rights of visitation with her natural children and that the adoptive parents would not attempt or seek to alienate the minor children's affection from their natural mother. The petition went on to allege that this agreement was fulfilled until May of 1967 when the adoptive parents moved to the State of Michigan and there appellant's visitation rights were denied and the children's affections were alienated. It was further alleged that the adoptive parents at the time they entered into this agreement with appellant had the intention of depriving appellant of her visitation rights and alienating her children. Approximately two and one-half years later, appellant filed her petition to vacate the adoption proceedings.

Service of these petitions was made in Arizona on the then County Attorney of Maricopa County. Additional foreign service was made by personally serving the surviving adoptive parent in Fraser, Michigan, the home of the adoptive children. No appearance was made by the surviving adoptive parent in Arizona nor was an appearance made in the trial court by the County Attorney on her behalf. Appellant's petitions were dismissed by the trial court.

Before discussing the merits of this appeal, the court wishes to make some general observations concerning a decree of adoption.

First, we are convinced that a final order to adoption is a final judgment, subject to the same finality and standing as any other judgment of a court of competent jurisdiction. Risner v. Risner, 243 Ind. 581, 189 N.E.2d 105 (1963). This is necessary so that he myriad legal consequences which arise out of the relationship between parent and child, of which intestate succession and heirship is just one, may be applied with some degree of certainty. Moreover, from a strictly humanitarian standpoint, there must be an end to the emotional stress and strain that is involved in the natural parents' attempt to regain custody of their child. This strain is particularly acute to the adoptive child itself, who may have established strong bonds of affection and love for the adoptive parents, and to the adoptive parents who must suffer the spectre of losing their child. Also, sound reasons of public policy demand that orders of adoption have finality so as to encourage adoption of children who might otherwise be homeless. As was stated in Rhodes v. Shirley, 234 Ind. 587, 129 N.E.2d 60 (1955):

'Few really considerable prospective parents would take a child into their hearts and homes and expose either the child or themselves to the heartache of a child's removal from their homes, after mutual...