Doty-Perez v. Doty-Perez, 1 CA-CV 15-0844 FC

• Decision Date: 29 December 2016
• Docket Number: No. 1 CA-CV 15-0844 FC,1 CA-CV 15-0844 FC
• Citation: 755 Ariz. Adv. Rep. 34,241 Ariz. 372,388 P.3d 9
• Parties: In re the Marriage of: Susan M. DOTY-PEREZ, Petitioner/Appellant, v. Tonya L. DOTY-PEREZ, Respondent/Appellee.
• Court: Arizona Court of Appeals

241 Ariz. 372

388 P.3d 9

755 Ariz. Adv. Rep. 34

In re the Marriage of: Susan M. DOTY-PEREZ, Petitioner/Appellant,

v.Tonya L. DOTY-PEREZ, Respondent/Appellee.

No. 1 CA-CV 15-0844 FC

Court of Appeals of Arizona, Division 1.

FILED December 29, 2016

Gregg R. Woodnick PLLC, Phoenix, By Leslie A.W. Satterlee, Markus W. Risinger, Counsel for Petitioner/Appellant

Berkshire Law Office PLLC, Phoenix, By Keith Berkshire, Megan Lankford, Counsel for Respondent/Appellee

Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Charles W. Gurtler¹ joined.

OPINION

THOMPSON, Judge:

¶ 1 Appellant, Susan M. Doty–Perez (Susan), seeks reversal of the family court's order denying her request to be declared a legal parent of four children legally adopted by her ex-spouse while they were married, in light of the United States Supreme Court's marriage equality decision in Obergefell v. Hodges , 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). For the following reasons, we affirm the family court's decision.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Susan and Appellee, Tonya L. Doty–Perez (Tonya), began living together in October 2010. Tonya adopted a child, who is not a subject of this appeal, two months later. The parties were legally married in Iowa in July 2011, but at all relevant times resided in Arizona.

¶ 3 Subsequent to their marriage, the parties agreed that Tonya would adopt four special needs children from foster care in May 2012, January 2013, April 2013, and February 2014, respectively. While the parties agreed Tonya would be the adoptive parent, they intended to raise the four children together, as two parents. They would have adopted the children together but could not because, at the time of the adoptions, Arizona did not recognize same-sex marriage and legally prohibited same-sex adoptions.

¶ 4 At some point, the parties' relationship began to erode. Susan alleges that, as their relationship was ending, on April 8, 2014, she asked Tonya for permission to adopt the children through a second-parent adoption, but Tonya did not consent. Susan moved out of the marital residence on April 12, 2014. She did not petition to adopt the children.

¶ 5 On October 7, 2014, the Ninth Circuit declared nonrecognition of same-sex marriage unconstitutional in Latta v. Otter , 771 F.3d 456, 464–65 (9th Cir. 2014). On October 17, 2014, in Majors v. Horne , 14 F.Supp.3d 1313, 1315 (D. Ariz. 2014), the U.S. District Court for the District of Arizona declared Arizona's ban on same-sex marriage unconstitutional, and enjoined the state from enforcing its ban. Susan filed a Petition for Dissolution of Non–Covenant Marriage Without Minor Children and also requested in loco parentis visitation on April 14, 2015. She later clarified the latter was a temporary orders request.² In May 2015, Susan requested to amend her petition to a "Petition to [sic] Dissolution of Marriage WITH children and request for joint legal decision making and parenting time."

¶ 6 In June 2015, the United States Supreme Court decided Obergefell . In that case, the Court held the Fourteenth Amendment requires states to both license same-sex marriages and to recognize same-sex marriages that were lawfully licensed and performed in another state. Obergefell , 576 U.S. at ––––, 135 S.Ct. at 2593–608.

¶ 7 The following month, Susan filed a "Motion to Find Petitioner a Parent of Minor Children and Memorandum in Support of Amended Petition for Dissolution With Children." After additional briefing and oral argument, the court issued an order denying Susan's petition to be declared a legal parent. In its order, the court found: (1) Susan "has proven by a preponderance of the evidence that had Arizona allowed same-sex-marriage and adoption at the time of the adoption of the four (4) children, the parties would have jointly adopted the children;" (2) after October 17, 2014, Susan could have filed a legal request to adopt the children but did not do so; and (3) after October 2014 Susan asked Tonya if she could enter into a step-parent adoption, but Tonya denied that request.

¶ 8 Susan timely appealed to this court. We have jurisdiction³ under Article 6, Section 9, of the Arizona Constitution and pursuant to Arizona Revised Statutes (A.R.S.) §§ 12–120.21(A)(1) (2016) and –2101 (2016).⁴

DISCUSSION

¶ 9 The parties raise many arguments, some of which are inconsistent with each other, and the briefs do not join all of the issues. To assure the parties that we have considered their respective arguments on appeal, we begin by summarizing the issues. Ultimately, we find one dispositive issue, see infra ¶ 15, and based on our resolution of that issue, affirm the family court's decision.

¶ 10 Susan argues the family court should have declared her to be a legal parent of the four children through either of two legal avenues—1) by modifying the adoption decrees to declare her a legal parent of the four children, or 2) in the alternative, by declaring her a de facto parent with full legal parent status, as in In re Parentage of L.B. , 155 Wash.2d 679, 122 P.3d 161 (2005).

¶ 11 As to the issue of modifying the adoption decrees, Susan claims the family court erred in declining to modify the decrees, under the existing statutory scheme, because under Obergefell Arizona's refusal to recognize the parties' 2011 marriage was unconstitutional, and but for that infirmity, Susan and Tonya would have jointly adopted all four children, in accordance with their intent and pursuant to A.R.S. § 8–103(A) (2016).⁵ The statute she cites provides that "[a]ny adult resident of this state, whether married, unmarried or legally separated, is eligible to qualify to adopt children. A husband and wife may jointly adopt children." (Emphasis added.) A.R.S. § 8–103(A). Susan contends that because § 8–103(A) would have allowed her to adopt the children with Tonya, but for Arizona's unconstitutional refusal to recognize their marriage, the family court should have ruled that she in effect did jointly adopt the children with Tonya. As noted, Susan did not file a petition to adopt under § 8–103(A) after Latta , Majors, or Obergefell. Such an adoption would have required Tonya's consent. See A.R.S. § 8–106(A)(1) (2014). Susan contends that, given Tonya's refusal to consent, she would have risked sanctions for bringing a frivolous claim if she had filed an adoption petition.

¶ 12 As to the issue of de facto parentage, Susan argues the court may exercise its equitable authority to recognize de facto parentage and grant her parental status equivalent to that of a legal parent, "even if limited to cases in which married parties adopt children but the adoption order lists only one spouse as a parent." In support of this argument, she asserts that because A.R.S. § 8–117(A) (2014) states that an adoptive child should be treated as though the child was born "in lawful wedlock" she is deemed the presumptive second parent pursuant to A.R.S. § 25–814's marital presumption. See A.R.S. § 25–814 (A)(1) (2007).

¶ 13 Susan additionally maintains that the family court's failure to grant her legal parent status violates the Fourteenth Amendment's due process and equal protection guarantees by denying the children the psychological benefits of a parental relationship with her and subjecting them to inequitable treatment because they were adopted into a family with same-sex parents prior to marriage equality in Arizona.

¶ 14 In response to the first argument, Tonya argues that Obergefell has not been held to retroactively create adoptions in situations, like this, where only one party to a same-sex marriage was allowed to adopt a child. She additionally argues that because A.R.S. § 8–103(A) does not require married couples to adopt jointly, but only permits them to do so, absent a joint request, the court is bound to grant parentage only to an individual who actually petitions for adoption, and not also to his or her spouse. As to Susan's second argument, Tonya posits that Arizona does not recognize de facto parentage under either A.R.S. §§ 25–401(4) (defining a legal parent), –814, or 8–117(A).

¶ 15 We agree with Tonya that Arizona does not recognize de facto parentage.⁶ 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. We think not.

¶ 16 Pure questions of law, including those involving constitutional provisions, are reviewed de novo. Hall v. Lalli , 194 Ariz. 54, 57, ¶ 5, 977 P.2d 776, 779 (1999) ; Cave Creek Unified Sch. Dist. v. Ducey , 231 Ariz. 342, 347, ¶ 8, 295 P.3d 440, 445 (App. 2013). We recognize that under Obergefell , Arizona must credit the parties' marriage as having taken place in 2011, prior to Tonya's adoption of the four children. See Obergefell , 576 U.S. at ––––, 135 S.Ct. at 2607–08 (stating a state must give full faith and credit to marriages lawfully licensed in other states). However, 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. See id . at 2601 (explaining that marriage is a historical basis for "an expanding list of governmental rights, benefits, and responsibilities," including "adoption rights," but not addressing the issue of same-sex adoptions, neither retroactively nor prospectively). In the absence of a constitutional mandate under Obergefell to retroactively modify adoption decrees, we turn to what is permissible under Arizona law.

¶ 17 In Arizona, adoption is a creature of statute. Matter of Estate of Ryan , 187 Ariz. 311, 312, 928 P.2d 735, 736 (A...