Appeal in Pima County Juvenile Action B-10489, Matter of

• Decision Date: 11 August 1986
• Docket Number: No. 2,B-10489,CA-CIV,2
• Parties: In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION5548.
• Court: Arizona Court of Appeals

Page 830

727 P.2d 830

151 Ariz. 335

In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION B-10489.

No. 2 CA-CIV 5548.

Court of Appeals of Arizona Division 2, Department A.

Aug. 11, 1986.

Review Denied Oct. 21, 1986.

[151 Ariz. 336] Ann M. Haralambie, Tucson, for appellant.

George Haskel Curtis, Tucson, attorney appointed by Juvenile Court.

Frederick S. Klein, Tucson and Roberta Achtenberg, San Francisco, Cal., for amici curiae Arizona Civil Liberties Foundation, Lambda Legal Defense and Educ. Fund, Lesbian Rights Project.

CORRECTED OPINION

HATHAWAY, Chief Judge.

This appeal follows the juvenile court's order certifying appellant as nonacceptable to adopt children.

On May 16, 1984, the Pima County Attorney filed a petition for preadoption certification on behalf of appellant in accordance with A.R.S. §§ 8-105 and 8-127. The petition was appended to an adoptive home study ("written report"), appellant's application to adopt a child and appellant's autobiography, which together contained the information required by A.R.S. § 8-105(C). The written report was prepared by a Department of Economic Security ("division") caseworker and included the division's recommendation that the court certify appellant as being acceptable to adopt children. See A.R.S. § 8-105(F). On July 13, 1984, the juvenile court entered an order which, in its entirety, stated:

The Court having reviewed the adoptive home study submitted with the Petition for Certification, IT IS ORDERED that the applicant, [the appellant], sole petitioner, is certified as being nonacceptable.

Appellant subsequently retained private counsel and petitioned the court to review its certification order pursuant to A.R.S. § 8-105(K). See also § 8-127. On the date scheduled for appellant's review hearing, the court entered an order vacating the matter and appointing private counsel "to represent the Court and the interests of any child who might be placed for adoption with petitioner, [the appellant]." Appellant's motion to set aside the order which appointed court counsel and created a class of unknown prospective adoptive children was denied and a review hearing was scheduled for July 1, 1985.

Appellant testified at the review hearing. In addition, appellant called three witnesses, the division caseworker who prepared the investigation report and two persons who testified regarding their personal knowledge of appellant. Admitted into evidence were the written report, appellant's application to adopt a child and various documents regarding appellant's financial and employment status. The juvenile court's appointed attorney presented no evidence and did not call any witnesses, but participated in the hearing by cross-examining appellant's witnesses. The matter was taken under advisement at the close of the hearing on July 1.

On July 12, 1985, the court issued an order requiring "that each counsel prepare and submit findings of fact and conclusions of law no later than July 29, 1985." Both attorneys submitted proposed findings and conclusions. The court issued an under-advisement order dated August 30, 1985, affirming its previous ruling that appellant be certified as nonacceptable to adopt children. The order incorporated verbatim the proposed findings and conclusions of the court's appointed counsel:

FINDINGS OF FACT

1. Petitioner, [appellant], filed a Petition for Preadoption Certification pursuant to A.R.S. Section 8-105 in the Pima County Superior Court.

2. Pursuant to A.R.S. Section 8-105, the Arizona Department of Economic Security prepared and submitted to this Court an investigative report which recommended certification of Petitioner for adoptive purposes.

3. This Court, pursuant to authority granted to it under A.R.S. Section 8-

[151 Ariz. 337] 105(I) certified petitioner as nonacceptable to adopt.

4. The Court exercised its right to require additional investigation pursuant to A.R.S. Section 8-106(J) and appointed George Haskel Curtis as counsel for investigative purposes.

5. Petitioner requested and participated in a certification hearing before this court on July 1, 1985.

6. Petitioner is a bi-sexual individual who has had, and may have in the future, sexual relationships with members of both sexes; he presently lives alone and is employed with [appellant's employer]; he has held at least eight different employment positions in eleven years; he has sought counseling for personal problems repeatedly in the last ten to eleven years; his family support system is limited at the present time.

CONCLUSIONS OF LAW

1. The Petitioner is not acceptable to adopt a child at the present time.

Appellant timely filed his memorandum of points and authorities, and a responsive memorandum was submitted by the juvenile court's appointed attorney. We granted an application for permission to file a brief amicus curiae in support of appellant and accepted the brief submitted jointly by the Arizona Civil Liberties Foundation, the Lambda Legal Defense and Education Fund, and the Lesbian Rights Project. See Rule 16, Rules of Civil Appellate Procedure, 17A A.R.S.

On appeal, appellant contends that the juvenile court based its certification order solely upon his sexual orientation. He argues that the court's findings and conclusions were not supported by the evidence but were created improperly to sustain its determination of nonacceptability premised on his admitted bisexuality. Appellant also challenges the juvenile court's appointment of private counsel to represent the court and the unknown class of potential adoptive children.

I. APPOINTMENT OF COUNSEL

The court's designation of private counsel was characterized as an exercise of its right to require additional investigation pursuant to A.R.S. § 8-105(J). That statute authorizes a court to "require additional investigation ... if additional information is necessary upon which to make an appropriate decision regarding certification." Section 8-105(J) does not contemplate the appointment of adversary counsel but affords the court the opportunity, if necessary, to request further investigation and the presentation of additional facts which may be relevant and material to a pending petition for certification. ¹

Special appointments of counsel are governed by Rule 20, Rules of Procedure for the Juvenile Court, 17A A.R.S. Specifically, Rule 20(b) provides that "[t]he court may require the appearance of the County Attorney in the juvenile court as counsel to protect the public interest in any case." The appointment of private court counsel in this case was error; however, appellant has not shown and we do not find that he suffered any resulting prejudice. Appointed counsel added nothing to the evidence, and we do not believe that his presence affected the outcome of the review hearing. While appointed counsel did cross-examine appellant's witnesses, the court conducted extensive questioning on its own. The error in this case was harmless.

II. FINDINGS AND CONCLUSIONS

In Arizona, no person may petition to adopt a particular child unless he has met certain statutory requirements. First, he must be certified by the court as acceptable to adopt children. A.R.S. § 8-105(A). Once a certification of acceptability is issued and the identity of the potential adoptive child is known, additional investigation and reporting are required to determine the suitability of that child's placement with the applicant. A.R.S. § 8-105(D). After the child's suitability for adoption by the applicant is determined, the petition to adopt is filed and may not be heard or disposed of for an additional six months to allow continued investigation. A.R.S. §§ 8-109, 8-112 and 8-113.

When a petition for certification is filed pursuant to A.R.S. § 8-105(A), an investigation is conducted and a report to the court is filed. The investigation may be conducted by the division, as in this case. A.R.S. § 8-105(B). The statute requires that the investigative report consider all relevant facts regarding an applicant's fitness to adopt including, without limitation, the applicant's social history, financial condition, moral fitness, religious background, physical health, mental health, fingerprint records and any prior court actions involving children. A.R.S. § 8-105(C). The report also must contain a "definite recommendation for certifying the applicant as being acceptable or nonacceptable." A.R.S. § 8-105(F).

The juvenile court, upon receiving the precertification report, "shall certify the applicant as being acceptable or nonacceptable to adopt children based on the investigation report and recommendations of such report." A.R.S. § 8-105(I). The investigation report which was filed by the division in this case recommended that appellant be certified as acceptable to adopt children.

The burden in adoption proceedings is proof by a preponderance of the evidence. Rule 17, Rules of Procedure for the Juvenile Court, 17A A.R.S. On review, we will not disturb the juvenile court's finding absent an abuse of discretion. In re Anonymous, 4 Ariz.App. 588, 422 P.2d 419 (1967). Where an investigation report filed pursuant to subsections 8-105(A), (C) and (F) recommends acceptability and the court rules otherwise, we will affirm if the evidence supports the conclusion that the applicant is not fit to adopt a child who might be placed with him. Certification by the court of an applicant as nonacceptable constitutes a finding that at the present time, based on the record before the court, the applicant is not suitable to adopt a child.

In this case, the court specified the following circumstances and concluded that appellant was not acceptable to adopt children: That appellant is bisexual, that he lives alone and is employed, that he has had eight employment positions in 11 years; that he has sought personal counseling and that his family support system is limited.

The norm of appellate review of the record is whether it supports the trial court's ruling...