Petition for Writ of Certiorari — Jackson v. Tangreen
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
LS LE NS EL IT EE TLL LITT NCL TE TI OLIN is NEI 7 EE IRR
Supweme-Court U.S
i Et wv
O1- 256 JUN 09 2001
No. OFFICE ©
In The
Supreme Court of the Anited States
Christy and Steven Jackson,
Petitioners
Vv.
Sandi Tangreen,
Respondent
On Petition For Writ Of Certiorari
To The Arizona Supreme Court
PETITION FOR WRIT OF CERTIORARI
Paul S. Rowley
Counsel of Record
Roberts & Rowley, Ltd.
63 E Main St., Suite 501
Mesa, Arizona 85201 |
480-833-1113
is ae ee eee ee a ————————— ow i
Questions
The following questions arise from a grandpar-
ent visitation court order which orders visitation
over the objections of a fit natural mother and a
fit adoptive father.
1. Is Arizona’s third party visitation statute,
A.R.S. §25-409, an unconstitutional infringe-
ment on a fit parent’s right of custody and con-
trol, either facially or applied?
2. Does the lack of recognition of a stepparent
adoption under ARS §8-117 constitute a viola-
tion of equal protection under the US Constitu-
tion?
3. Did the Arizona Court of Appeals, Division I,
fail to apply the reasoning of Troxel v. Granville in
its review of Jackson v. Tangreen and thereby fail
to provide due process guaranteed to the Jack-
sons by the U.S. Constitution?
OusCatiia, 0:.<5<<<ianceanciaceeeeee
Tabie of ComieQQh.:.cciaaeeeee
Table of Cited Authorities.................
Citations of Published and Unpublished
Opinions in this Case,......ccccccccccesees
Statement of Jurisdiction.................
Notice of Service Purusant to Rule 29
Material Facts of the Case................
Argument for Questions 1 and 2.......
Parental PIRGGO. ....00<secccconscecsescss
Order based on Personal Opinion
Appeals Court Opinion..............
Argument for Question 2..................
COnmCRIGNGR a .100011sinsaeee
Hinson order dated 8/19,1999..
Opinion Div I, AZ Appeals Ct.....
Denial Petition for Review..........
ARS $ 29-409. ccscasicsaneee
ARS 6 8-127 :icccssocsccccsauseeeeeneeane
Excerpts from hearing transcript
before Judge Hinson 7/17/98...
Table of Cited Authorities
Jackson v. Tangreen, No. 1 CA-CV
99-0542
(Ariz.App.Div.1 12/26/2000) ... 1
Troxel v.Granville, 530 U.S.57
Sa biphodinussctnnvenccséssessnessooorens 6,7,10,
£3,82,13,
14,18,20,
21
Graville v Dodge I, 195 Ariz. 119, 985 P.2d
604 (AZ App. Div. 1 01/28/99
it iccscecccsseescdsenesceecasoccs 3
Dodge v. Graville, U.S. Supreme
Court Case No. 00-1300 cert granted
PINE Tas ccshbecdssoensansccssecsensccons 13
Guethe v. Truscott, 1995.AZ.16202 , 912
P.2d 33, 185 Ariz. 29, 206 Ariz. Adv. Rep.
Picnedscnsccnssceeceeccsenesseccseccvcscoosoes 16
Caban v. Mohammed et Ux, 1979.SCT.
1578, 441 U.S. 380, 99 S. Ct. 1760,
i ) es 20
Lehr v Robertson, 1983 SCT. 2578,
463 U.S. 248, 103 S. Ct. 2985, 77
L. Ed. 2d 614, 51 U.S.L.W., 5010.. 20
iv
Citations of the Pub
Opinions in this Case
2/24/94 Cristy Jackson (Thon) files for disso-
lution of marriage to Robert Thon in Yavapai
County Superior Court.
11/21/94 Decree of Dissolution granted
2/1995 Cristy Jackson married to Steve Jack-
son
4/14/97 Sandi Tangreen filed Petition for Grand-
partent Visitation
6/17/97 Order to Show Cause Hearing held by
Judge Brutinel, visitation ordered
2/9/98 Steve Jackson files petition to adopt the
children, natural Father consents to his parental
rights being severed
7/2/98 Sandi Tangreen files petition for contin-
uation of grandparent visitation rights
7/17/98 Hearing on Tangreen Petition heard by
Judge Hinson
8/11/98 Order of Adoption Entered by Judge
Brutinel
iii
2/18/99 Tangreen files Petition for Order to
Show Cause asking for expanded visitation to
that of Arizona “Guidelines” for non-custodial
parent and alleges that Jacksons have frustrated
her efforts to have visitation.
3/2/99 Order to Show Cause Hearing; denied
visitation during spring break and ordered visi-
tation to remain constant.
3/5/99 Jackson file motion for reconsideration
of Judge Hinson’s 7/17/98 ruling
6/21/99 Court modifies visitation order but con-
tinues visitation over parent’s objections
8/19/99 Formal order entered (see Appendix)
9/14/99 Jacksons file notice of Appeal (1 CA-CV
99-0542)
12/26/00 Division I, Arizona Court of Appeal
issues opinion (see Appendix)
1/25/01 Petition the AZ Supreme Court for
review
5/30/01 Petition for review denied by the AZ
Supreme Court (see Appendix)
This Page Intentionally Left Blank
Statement of Jurisdiction
On May 30, 2001, the Arizona Supreme
Court denied without comment, to review a pub-
lished earlier opinion by Division I of the Ari-
zona Court of Appeals in the case of Christy
and Steven Jackson v. Sandi Tangreen, CV-01-
0036-PR. The petition for review initially resulted
from an opinion that was entered by the Arizona
Court of Appeals, Division One, in the case of
Jackson v. Tangreen, No. 1 CA-CV 99-0542 (see
full text of this opinion contained n the Appen-
dix), which was in response to an appeal from an
order by the Superior Court in the same matter,
DO 94-0203 (see in the Appendix, Order by the
Honorable Judge Howard D Hinson, Superior
Court of Yavapai County, Arizona). The United
States Supreme Court has jurisdiction in this
matter under rule 1 l(c).
“(c) a state court or a United States court
of appeals has decided an important ques-
tion of federal law that has not been, but
should be, settled by this Court, or[and]
has decided an important federal ques-
tion in a way that conflicts with relevant
decisions of this Court.” [Added by Peti-
tioner to clarify the claim]
It is Petitioners’ contention that this action
has violated their Constitutional right to Due
Process under the 14th Amendment of the U.S.
Constitution, and should be reversed. It is clear
that, at least as far as the instant case, no Ari-
2
zona court is willing to defend the right of a
parent to custody and control of his children.
Without intervention in this matter by the United
States Supreme Court, this right effectively does
not exist in Arizona for the instant case and
other cases within Arizona.
Notice of Service Pursuant to Rule 29
This document has been served by mail on
the attorney of record for the opposing party and
attempted personally on the opposing party as
described in the proof of service submitted here-
with. In addition, since the constitutionality of
a state statute may be in question, this was
also served by mail on the Attorney General of
the State of Arizona pursuant to 28 U. S.C. §
2403(b). Proof of service accompanied this docu-
ment when it was filed with the United States
Supreme Court.
Material Facts of the Case
Cristy Ann (Thon) Jackson and Robert Ray
Thon were married on July 4, 1992. There were
two children born to the marriage, Dexter Thon,
born on January 13, 1992, and Kabrina Thon,
born on March 23, 1993. Cristy Ann (Thon)
Jackson filed a Petition for Dissolution with the
Yavapai County Superior Court on February 24,
1994. A Decree of Dissolution was entered by
Judge Hancock on November 21, 1994. In Feb-
ruary of 1995, Cristy married Steve Jackson, an
equipment operator and volunteer EMT for the
Phelps Dodge Copper mine in the community of
Bagdad, Arizona.
On April 14, 1997, the minor children’s’
genetic paternal grandmother, Tangreen, filed
a Petition for Grandparents’ Visitation. Follow-
ing hearing on June 17, 1997, Judge Brutinel
entered his Order granting grandparents visi-
tation in magnitude well beyond the guidelines
for the State of Arizona contained in Grauille v.
Dodge I, 195 Ariz. 119, 985 P.2d 604 (AZ App.
Div. 1 01/28/99 cert denied).
On February 9, 1998, Steven Jackson, the
husband of Cristy Ann (Thon) Jackson, and step-
father of the minor children, filed a Petition To
Adopt the minor children. Within that Petition it
stated that the natural father of the minor chil-
dren, Thon, consented to the adoption, and a
consent to the adoption from the natural father
accompanied the Petition. Following hearing,
Judge Brutinel signed an Order of Adoption on
August 11, 1998.
On July 2, 1998, Tangreen filed a Petition
For Continuation Of Grandparents’ Rights. In
Response, on July 14, 1998, the Jacksons”
objected to the continued grandparents visita-
tion, arguing that given the pending adoption
(then scheduled for August 11, 1998), it would
be inappropriate to schedule visitation, as the
grandparents’ visitation should be terminated,
by statute, with the signing of the Order of Adop-
tion. It was further argued that Arizona law
dictated that once the natural father had con-
sented to the adoption that consent could not be
revoked and that, therefore, there was nothing
4
preventing the adoption from occurring and the >
grandparents’ visitation, thereby, terminated.
On July 17, 1999, hearing was held before
Judge Hinson (excerpts from the record con-
tained in the Appendix). At that time, the Court
took testimony from Cristy Ann (Thon) Jackson
and from Tangreen, and entered its Order that
Tangreen could pick up the minor children and
have visitation with them beginning on July 20,
1998 and returning them no later than 5:00 PM
on August 10, 1998. .
On February 18, 1999, a Petition for Order
to Show Cause was filed by the Appellee, asking
for “guidelines” visitation (“guidelines” refers to
visitation normally granted in divorce cases, not
grandparent visitation cases). The Order to Show
Cause Hearing was held on March 2, 1999. At
that time, Appellants advised the Court that a
Motion for Reconsideration had been filed with
the Court, but had been filed under the adoption
case docket number rather than the appropriate
docket number. The Court, at that time, estab-
lished a schedule for the filing of Response and
Reply to the Motion for Reconsideration, denied
Tangreen visitation during spring break, denied
visitation with Tangreen pursuant to the “specific
visitation request” of the Petition for OSC, and
directed that Tangreen’s visitation would remain
the same as previously ordered. Finally, the
Court directed that the Appellants and Appellee
were to communicate with each other in regard
to Summer visitation.
On March 25, 1999, Appellants’ Motion For
rs)
Reconsideration was “re filed” under the appro-
priate docket number. However, on April 23,
1999, Appellants filed a letter with the Court
they had received from Thon, and asked that the
Court reconsider its grant of visitation to Tan-
green. Within that letter Mr. Thon advised that
he wanted his children to have a “normal, struc-
tured, pleasant childhood,” which he did not feel
they would have if Tangreen remained involved
in their lives. Mr. Thon pointed out that Tan-
green had a grandchild in Montana which she
had made no effort to see or be a part of his
life, and Thon did not believe there was a logical
reason for the Court to uproot the minor chil-
dren from their home in Bagdad, Arizona and be
taken away from their social and sporting events
which he recognized as being very important
to them. Mr. Thon stated specifically, that he
did not believe Tangreen had ever concentrated
her efforts on what was best for the children.
Mr. Thon reported that during prior visitation,
when the children wished to be with their natu-
ral father, Tangreen had locked them in a trailer.
Thon stated that Tangreen had a history of being
both physically and mentally abusive toward
himself and his sister and that Tangreen was a
threat to his children’s safety. Mr. Thon related
that Tangreen’s husband, not Thon’s birth father,
abused prescription narcotic drugs to the extent.
that he would pass out at the dinner table with
his fork halfway to his mouth and in the middle
of conversations. Mr. Thon was unequivocal that
he did not want his natural children to have visi-
6
tation with his mother; their grandmother.
On June 21, 1999, Judge Hinson issued a
lengthy Minute Entry denying reconsideration of
his prior orders and allowing visitation to con-
tinue to Tangreen, stating that “implicit” within
Judge Brutinel’s Order establishing a visitation
in Tangreen was a finding by the Court that such
visitation was in the children’s best interests,
and that if the Appellants had disagreed with
the continuation of visitation in Tangreen, they
should have raised it to Judge Brutinel at the
time of the adoption. The Court’s formal Order,
contained in the Appendix, was signed on August
20, 1999.
Argument for Question 1 and 3:
1. Is Arizona’s third party visitation statute,
A.R.8S. §25-409, an unconstitutional infringe-
ment on a fit parent’s right of custody and
control, either facially or applied?
3. Did the Arizona Court of Appeals, Division
I, fail to apply the reasoning of Troxel v.
Granville in its review of Jackson v. Tangreen
and thereby fail to provide due process guar-
anteed to the Jacksons by the U.S. Constitu-
tion?
Division I of the Arizona Court of Appeals
in finding for the Appellee in the instant case
failed to apply the analysis of Troxel v. Granville,
530 U.S. 57 (2000) despite a more than adequate
invitation by the Petitioner to do so in their open-
7
ing brief. Instead it launched into an extensive
and in the Petitioner’s opinion a substantially
flawed analysis of the facial constitutionality of
one of two Arizona grandparent visitation laws.:
ARS § 25-409, under the authority of which
this action has been taken. A companion stat-
ute extends visitation to nearly all third parties
that can claim a relationship with children, ARS
§ 25-415, which was not discussed and is not
discussed herein other to note that this law dis-
putes many claims that Arizona law is narrowly
constructed. The fact remains that the Court
of Appeals, other than noting that the parents
were fit, largely ignored the analysis of Troxel. It
ignored any determination of whether the instant
case was merely the opinion of the judge versus
that of fit parents. Also it ignored that the Supe-
rior Court from which this action springs swept
in the new adoptive father, Steven Jackson, to
court ordered interference with parental rights
without even the slightest trappings of due pro-
cess. We proceed through what the Petitioners
feel is a more proper application of the analysis
stated in Troxel v. Granville.
Parental Fitness
The Appeals Court (see 413 of the Appeals
Opinion in the Appendix) , took judicial notice
of that “there is a presumption that fit parents
act in the best interests of their children” (from
Troxel v. Granville). In this case, as in Troxel no
8
one has alleged and no court has found that
either Cristy Jackson or Steve Jackson are any-
thing but exemplary parents. Furthermore the
State of Arizona has conducted as a matter of
public policy and law an extensive background
investigation associated with their adoption.
While these investigations are sealed records the
undisputed fact that the adoption was granted by
an Arizona Superior Court is clear positive affir-
mation that the Petitioners are fit parents. Addi-
tionally Judge Hinson in his comments at the
close of the hearing on July 17, 1998 reflected
his opinion on the parental fitness when he
stated. “you two [the Petitioners] are very, very
nice and very decent people, and I think that
you are coming at this from a parental angle and
that parental angle is what is best for them [the
children].” (See the transcript in the Appendix,
material in brackets added for clarity) There can
be no question that this case involves fit parents
in an intact family situation.
Order based on Personal Opinion
The Order entered by Judge Hinson gave
the thinnest reasoning possible for his order. His
reasoning is limited to the following statement in
the order (contained in total in the Appendix),
“The rights of grandparental visitation set
forth specifically herein below will enure
to the benefit of these children by allowing
9
them to continue to enjoy their association
with a paternal grandmother who demon-
strates her caring for these children by the
investment of the time and effort required
to visit them. Acceptance of this visitation
by the mother and adoptive father of these
children will demonstrate to them that
their parents love and accept the entirety
of their identities, even that part which
consists of their relationship with their
paternal grandmother.”
Further in the court transcript of the hearing
in chambers that produced this order the judge
states,
“But, again, you get back to the concept
does this addition that you’re adding to
these kid’s lives [the adoption by Steve
Jackson] means the subtraction of some-
body else that takes a lot of trouble and
effort and time to be part of their lives and
have them learn to know her and where
she lives and be someone that they have
as a resource in their lives?” (Comment in
brackets added for clarity).
Apparently Judge Hinson felt that what
qualified a third party for visitation was the
willingness to put time and effort to visit. The
Petitioners believe this concept has not demon-
strated merit in law or science. In contrast, the
10
parents raised considerable concern about safety
of their children (see the transcripts excerpts
contained in the Appendix) under the care of
Respondent. The court not only took no steps to
ensure safety but completely ignored these con-
cerns. Clearly this case involves the opinion of
the judge that visitation is good if a person wants
to put forth effort to make it happen versus a
contrary opinion of the parents based less on a
vague concept and more on the specifics of these
children and the Respondent in this case.
In Troxel v. Granville the United States
Supreme Court stated, concerning the specifics
of the Troxel case the following:
“The decisional framework employed by the
Superior Court directly contravened the
traditional presumption that a fit parent
will act in the best interest of his or her
child. See Parham, supra, at 602. In that
respect, the court’s presumption failed
to provide any protection for Granville’s
fundamental constitutional right to make
decisions concerning the rearing of her
own daughters.”
In the instant case the judge (see the tran-
script of the hearing contained in the appendix)
stated: “So, given all of that, you two are very,
very nice and very decent people, and I think
that you are coming at this from a parental
angle and that parental angle is what is best for
Ee
11
them. I don’t know. There is somebody up there
in another state that really cares about them
enough to spend the time, trouble and effort
to do what’s in their best interests.” This quote
makes it clear that this was just a difference of
opinion between three people, the judge and two
parents, that wanted what was best for the chil-
dren. The judge clearly believes his opinion pre-
vails, contrary to Troxel.
The Petitioners have been unable to distin-
guish their circumstances from that of Tommie
Wynn (Granville). They were not arbitrary in the
forming of their opinion that the best interests of
their children would not be served by substantial
forced absences twice a year from the parents
with the Respondent as a specific individual, no
matter how much effort she was willing to spend
for this visitation. It is not that they objected to
_ occasional supervised visits in Arizona but they
continue to feel forced extended absences in an
environment they feel is unsafe is not in the
best interests of the children. On the other hand
the court apparently feels that forced visitation
based on a vague principle that peoplewho put
forth effort to visit should be rewarded with
extended periods of temporary custody and con-
trol of the children. The Petitioners feel that a
fair assessment of the situation by the Appeals
Court of Arizona would have resulted in the same
result that the United States Supreme Court
extended in Troxel v. Granville.
12
Appeals Court Opinion
In contrast to applying or even dealing with
the analysis suggested by Troxel, the Appeals
Court Opinion consisted as a long and in the
opinion of the Petitioners, flawed analysis of the
facial constitutionality of ARS § 25-409. Much of
this analysis hinges on Troxel v. Granville being
a plurality opinion applying to the broad Wash-
ington statute in contrast to a supposedly more
narrow and specific Arizona statute. The Arizona
Appeals Court states:
“In Troxel, no majority opinion emerged.
However, six of the justices agreed with
the state supreme court that the Washing-
ton statute was unconstitutionally over-
broad because it allowed ‘any person’ to
petition for forced visitation of a child at
‘any time’ with the only requirement that
the visitation serve the best interests of
the child.”......§10 Two factors support our
conclusion that the Supreme Court’s hold-
ing in Troxel has no impact on A.R.S.
section 25-409. First, although the Court
found the Washington statute’s language
too broad to pass constitutional muster,
it refused to find nonparental visitation
statutes unconstitutional per se. Id.....411
Second, A.R.S. section 25-409 is much
more narrowly drawn than the Washing-
ton statute in Troxel....We disagree and
13
conclude that Arizona’s statute satisfies
the due process concerns articulated in
Troxel.”
This analysis of the Arizona Court of
Appeals seems more a historical aberration
in light of many state appeals court opinions
around the nation to the contrary but, specifi-
cally, the United States Supreme Court order in
Dodge v. Graville, US Supreme Court Case No.
00-1300. As such it will not be discussed further
at this time. The summary judgment in Dodge
v. Graville seemed to make it clear that Troxel
v. Granville does apply to Arizona law as well as
Washington law.
The argument of the Appeals Court in the
instant case ultimately hinges on the specific language
contained in ARS § 25-409 (C ), These provisions, con-
tained in the Appendix, are to be used as follows, “In
determining the child’s best interests the court shall
consider all relevant factors.” This list includes the
motivation of both parents and grandparents, length
and duration of the relationship, etc. Only item 3 spe-
cifically refers to the parent, all others deal with the
surrounding environment of the visitation or others
involved in the litigation. There is no indication based
on any reasonable use of plain English in any of these
factors that indeed the parent’s opinion carries any
special weight over that of the grandparents seeking
court forced visitation. In fact specifically when the
court is instructed to determine and presumably con-
sider “The motivation of the person denying vis-
itation” (ARS § 25-409 C 3), there is a completely
14
parallel requirement using virtually identical wording
seeking, “The motivation of the requesting party
in seeking visitation” (ARS § 25-409 C 2).
If the assessment of the motivation of the
person denying visitation (parent) is equivalent to
giving special weight to the parent's opinion then
likewise the same assessment for the person request-
ing visitation (grandparent) must likewise be given
special weight leading directly to an oxymoron. You
cannot give special weight to both parent and grand-
parent's opinion in the same case at the same time.
In Troxel v. Granville the United States Supreme
Court stated, “if a fit parent's decision of the kind
at issue here becomes subject to judicial review, the
court must accord at least some special weight to the
parent’s own determination.” Nothing in the current
Arizona Statute remotely suggests that parents stand
any better than on equal footing with grandparents.
No place in the Arizona Appeals Court opinion did
the court consider whether “special weight” was in
fact given to the parent's opinion in the instant case. In
fact, as explained above, their opinion was completely
ignored by the court. The Petitioners believe that it
would take a heroic effort, reading beyond the stat-
ute, to comply with the principles outlined in Troxel v.
Granville. Clearly no such heroic effort occurred in the
instant case at the trial court, Arizona Appeals Court,
or in the Arizona Supreme Court.
In reading the history of this case it is clear that
this, like Troxel, started as a case of a fit single parent.
Ultimately life moved on for this parent and to the
15
benefit of the children Cristy remarried to provide a
second parent. Now Steven finds himself as a step-
parent devoid of parental status and responsibility,
bound by love for his new wife and her children
by her former husband. Ultimately it is arranged for
the natural father to voluntarily give up his parental
rights and to express his confidence in the benefits of
this new intact family holds for his children.
An adoption occurs, and is approved by the
court. Suddenly now a long standing litigation affects
two instead of one parent. Notwithstanding the issue
of the survival of grandparent rights to be discussed
below, the court sweeps Petitioner Steven Jackson,
without notice or apparent concern, into the judgment
against his wife for grandparent visitation. Nowhere
in the record can one find any order or hearing granted
to Steven. It is assumed by the court, without author-
ity, that by marriage and adoption Steven assumes the
legal burdens assessed to his wife. There is no other
precedent that the Petitioners know where marriage
and adoption encumbers a person with a previous
judgment without due process. For this reason alone
the Court of Appeals should not have found due pro-
cess has been served in this case.
Question 2 Does the lack of recognition of a
stepparent adoption under ARS §8-117 con-
stitute a violation of equal protection under
the US Constitution?
In appeal, the Petitioners raised the issue
of what does adoption do to parents’ rights. The
operative language for that is contained in sec-
16
tion A of ARS § 8-117 (full statute text contained
in Appendix) which states,
“On entry of the decree of adoption, the
relationship of parent and child and all the
legal rights, privileges, duties, obligations
and other legal consequences of the natu-
ral relationship of child and parent there-
after exist between the adopted child and
the adoptive parent as though the child
were born to the adoptive parent in
lawful wedlock.” (Emphasis added)
The Appeals Opinion contends that the follow-
ing language contained in ARS § 25-409 negates
this promise provided by the Arizona State Leg-
islature.
“FE. All visitation rights granted under this sec-
tion automatically terminated if the child has
been adopted or placed for adoption. If the
child is removed from an adoptive placement,
the court may reinstate the visitation rights.
This subsection does not apply to the adoption
of the child by the spouse of a natural parent if
the natural parent remarries.”
The interpretation of this Arizona Appeals
Court, Division I, differs from the previous position
taken by the Arizona Appeals Court, Division II in
Guethe v. Truscott, 1995.AZ.16202 , 912 P.2d 33, 185
Ariz. 29, 206 Ariz. Adv. Rep. 18, where the court
stated,
“The Arizona courts, however, have not rec-
;
(
3
:
2
3
2
2
3
4
e
:
i
;
‘
2
¥
17
ognized the grandparental relationship as an
interest or right which is entitled to protection
except in the limited manner provided by
the statute at issue. Moreover, public policy
requires recognition that an adoption decree
creates a new set of relationships with the
adoptive parents and that old ties must be
broken.” (Emphasis added)
Likewise the Appeals Court in the instant case
ignores the plain language of the statute which states,
“This subsection does not apply to the adoption of
the child by the spouse of a natural parent if the
natural parent remarries” Specifically the legislature
limited this clause to the impact on section ARS §
25-409(F) and specifically excludes it from impacting
the overall adoption laws including ARS § 8-117(A).
This was not nonsensical oversight on the part of the
legislature since this section was passed to encourage
the placement of infant children for stranger adop-
tion and was meant to eliminate extended family legal
barriers when unwed mothers put their babies up for
adoption.
Nonetheless the Petitioners argued before the
Arizona Court of Appeals argued that ignoring adop-
tion, as was done in the instant case, was a violation
of equal protection principles. The Appeals Opinion
recognized that this argument had been made but
rejected the argument stating in 930, “that differen-
tial treatment furthers the legitimate state inter-
est of supporting caring relationships between
family members, A.R.S. Section 25-409(F) does
not violate the principles of equal protection and
18
is thus constitutional.” This rather limited anal-
ysis ignores the plain language of the statute,
prior rulings, and most of all does not distin-
guish between competing states interests.
It is a disputable assertion that the state
may have an interest in ordering inter-genera-
tional relationships. Justice Thomas in Troxel v.
Granville disputed that assertion in his concur-
ring opinion when he stated, “Here, the State
of Washington lacks even a legitimate govern-
mental interest--to say nothing of a compelling
one--in second-guessing a fit parent’s decision
regarding visitation with third parties.” The Peti-
tioner believes that such a state interest has not
been demonstrated as a matter of science or law
and there is substantial evidence to the contrary
in both.
However of disputable value to the state
court ordered grandparent visitation is there
seems to be no dispute that it is in the state’s
interest to promote adoption. Adoption provides
the benefits of the legal commitment of parents
to raise a child to majority. It should not be ques-
tioned that this commitment is a substantial
one, both emotionally and financially. The state,
as compensation and inducement for citizens
making this commitment, grant to the adoptive
parents the same status as if they were natural
parents and the children were born to them in
wedlock. These children now have birth certifi-
cates listing Steven Jackson as their Father, not
Robert Thon. These children have a protected
|
19
relationship with their Father, Steven Jackson.
They can inherit what he owns, they are owed
care and protection by the Father until they
reach majority, and in Arizona grandparents may
not petition an intact family for grandparent visi-
tation. What is there about being a adoptive step-
father that withdraws equal protection under
the law to Steven Jackson which is awarded to
every other father in the State of Arizona? If the
state wanted to allow Steven Jackson to be court
ordered to provide visitation to a third party, who
is a genetic former legal grandparent should not
it have provided the same jeopardy to all intact
families?
Where natural parents may have pro-cre-
ated these children in a casual way, adoptive
parents do so with due consideration to the
personal commitment they are undertaking and
such decisions to do so, especially when children
are beyond their infant years should be encour-
aged and not discouraged by the state.
The instant opinion articulated no reason
why this state interest is diminished in the
slightest by stepparent adoption. The steppar-
ent, without adoption has no legal commitment
to the children. He may leave unfettered by child
support or other claims at any time. After adop-
tion this condition is no longer true and both
parents have long term commitments to the chil-
dren. Yet the court would have you believe that
the highly questionable state interest in order-
ing grandparent visitation somehow trumps the
*
20
state interest in promoting legally intact fami-
lies.
Likewise the Court flirts with, without
directly stating, the argument that right to differ-
entiate classes of adoptive parents is in the prov-
ince of the legislature, without regard to equal
protection under the law. It may be true that the
legislature may or may not choose, as it has in
Arizona, to invest the status of a natural parent
to an adoptive parent once this step is taken
the parent should receive the same 14th amend-
ment rights as a natural parent and thus has a
constitutional right to custody and control of his
children as defined in Troxel v. Granville.
Equal protection principles have been
applied to adoption situations for many years.
The United State Supreme Court has held that
fathers must be given equal protection when the
termination of parental rights required prior to
adoption with cases such as Caban v. Moham-
med et Ux 1979.SCT.1578, 441 U.S. 380, 99 S.
Ct. 1760, 60 L. Ed. 2d 297 and Lehr v. Robert-
son, 1983.SCT.2578, 463 U.S. 248, 103 S. Ct.
2985, 77 L. Ed. 2d 614, 51 U.S.L.W. 5010.
The Arizona Appeals Court, Division I,
in the instant opinion gives no justification as
to why stepparents should be classified in a
separate classification from other adoptive par-
ents beyond suggesting if equal protection was
extended to stepparent adoptions that would get
in the way of ordering fit parents to surrender
iii
21
their children to third parties for long periods
of custody and control in violation of their own
personal beliefs as to what is best for their chil-
dren.
Further assuming the Arizona Appeals
Court analysis is correct, it leaves hanging as to
exactly under what legal situation is a steppar-
ent who adopts. Is he or she a true parent and
when is he or she not a true parent but simply
the agent of the natural parent? What happens
if the natural parents dies or a divorce occurs?
By legislating from the bench the Appeals Court
has left an uncertain future for all stepparents.
It has allowed the court to place this stepparent
under orders issued against the single parent
alone without the slightest degree of due pro-
cess just as a penalty for adopting the child.
Why would any stepparent in this scheme want
or desire adoption when obligations are under-
taken but the right of a true parent is withheld?
Conclusion
The United States Supreme Court should
grant this petition for writ of certiorari since
to fail to do so would let stand an Arizona
Opinion that significantly narrows Troxel to only
states, laws and circumstances replicating those
of Troxel. Clearly this case is one of fit parent’s
opinion as to what is in the best interest’s
of the children versus a Judge’s opinion. The
22
judge admitted as much in open court. Further-
more the issue of whether a court may simply
ignore adoption as a significant and even decid-
ing change in the lives of children is raised. The
Opinion of Arizona is clearly stated. Stepparent
adoption is not a real adoption but one that obli-
gates the parent, not the state. After adoption,
the state is free to act as if no adoption occurred.
Both issues in this case, if this petition is denied,
will effectively overturn the recent opinion of the
United States Supreme Court in Troxel v. Gran-
ville for a large class of parents and adoptive
stepparents nationwide.
23
RESPECTFULLY SUBMITTED this 13th day of
August, 2001.
ROBERTS & ROWLEY) LTD.
Paul S. Rowley
63 E. Main Street, Suite 501
Mesa, Arizona 85201-7423
480/833-1113 (Phone)
480/833-1114 (Facsimile)
24
Appendix
1. Hinson Order Dated August
19,1999
2. Opinion of Division One of the
Arizona Court of Appeals, Jackson
vs Tangreen, No. 1 CA-CV 99-0542
(Ariz.App.Div.1 12/26/2000)
3. Denial of Petition for Revew from Ari-
zona Supreme Court, dated May 30,2001
4. ARS 825-409
5. ARS §8-117
6. Exercepts from hearing transcript before
Judge Hinson dated July 17, 1998
an re a ea. F ad
25
IN THE SUPERIOR COURT OF THE STATE
OF ARIZONA IN AND FOR THE COUNTY OF
YAVAPAI
In Re the Marriage of
CHRISTY ANN JACKSON
Petitioner
and ROBERT RAY RHON
Respondent
(SANDI TANGREEN, Grandmother)
No. DO094023
ORDER
On its own motion and without a hearing
having been held.
THE COURT FINDS, under the circum-
stances of this case it is necessary to modify
the grandparent rights of visitation previously
granted by the Court. The Court’s previous order
all the paternal grandmother what was referred
to as guideline visitation during the same times
the natural Father would exercise visitation.
The natural father has relinquished his parental
rights and consented to the adoption, which has
taken place. Continuing to allow the paternal
grandmother guideline visitation of these chil-
dren would put her in a position to unreason-
ably interfere with the integrity of the family unit
which now consists of her grandchildren, former
daughter-in-law, and the adoptive father. The
26
rights of grandparental visitation set forth spe-
cifically herein below will enure to the benefit
of these children by allowing them to continue
to enjoy their association with a paternal grand-
mother who demonstrates her caring for these
children by the investment of the time and effort
required to visit them. Acceptance of this visita-
tion by the mother and adoptive father of these
children will demonstrate to them that their par-
ents love and accept the entirety of their identi-
ties, even that part which consists of their rela-
tionship with their paternal grandmother.
The Petitioner, her husband, and the pater-
nal grandmother were previously encouraged by
this Court to work together to establish a sched-
ule for a summer visit with the paternal grand-
mother.
WHEREFORE THE COURT ORDERS: Any
such summer visit which has been established
and agreed upon by the parties is accepted and
approved by this Court. In the absence of such
an agreement, the children shall visit with their
paternal grandmother for an extended visit this
summer beginning not earlier than July 23, 1999
at Noon and ending no later than August 13,
1999 at 5:00 p.m. The grandmother shall pro-
vide specific written notice to the parents of her
intent to exercise this extended visitation period
not later than June 30, 1999. Not less than sev-
enty-two hours prior to her pickup of the children
the paternal grandmother shall provide specific
written notice of her expected time of arrival to
pickup the children. The paternal grandmother
27
shall provide to the parents an itinerary includ-
ing specific times, dates, addresses, and tele-
phone numbers of the places at which the chil-
dren will be during the extended summer visi-
tation. The parents of the children may contact
them by telephone daily if desired and available,
and the paternal grandmother shall initiate tele-
phone contact between the children and the par-
ents at her expense at least twice weekly such
calls may extend up to fifteen minute in length.
In addition to the extended summer visita-
tion the paternal grandmother shall be entitled
to a visit of five days duration during the Christ-
mas break of the children. The natural mother
and adoptive father of the children shall deter-
mine whether the visit takes place prior to or
after Christmas day; in no event shall the visit
extend later than December 23rd at 5:00 p.m.
or begin earlier than December 27th at 12:00
p.m. Paternal grandmother shall provide notice
to the parents of her intent to exercise the five
day visitation during Christmas break not later
than September 30, 1999. Thereafter the Peti-
tioner shall advise the paternal grandmother in
writing not later than October 31, 1999 whether
to five day visit shall take place prior to or after
Christmas day in accordance with the limita-
tions set forth above.
In the calendar year 2000 the five day visit
shall be extended to the paternal grandmother
during spring break of the children and she
shall not be entitled to the five day visit during
Christmas break. Each year the five day visit
28
shall alternate between the children’s spring and
Christmas breaks thereafter. Petitioner shall in
writing specify to the paternal grandmother each
year not later than April 30, 1999 the specific
three week period in which the children will visit
for the summer.
The paternal grandmother may exercise two
weekend visitations per year between the hours
of 5:00 p.m. Friday to 5:00 p.m. Sunday so long
as such visits occur within a 200 mile radius
of the children’s residence. Thirty days advance
written notice of the exercise of these weekend
visits shall be provided to Petitioner; should the
proposed weekend be inappropriate the Peti-
tioner shall propose an alternate weekend within
one week prior or two weeks after the proposed
weekend visit. Such proposal of alternate week-
ends shall be provided in writing not less than
one week after the grandmother’s notice of pro-
posed weekend visit. The weekend visits may not
take place during the months spring or Christ-
mas break or during the summer months in
any given calendar year. The Petitioner shall
allow the paternal grandmother telephonic con-
tact with the children to occur no more than
once weekly between the hours of 7:00 and 9:00
p.m. on any given evening.
29
Dated this 19 day of August, 1999
hbk fh
Superior Court Judge Pro Tem Howard” Hinson, Jr.
30
Jackson v. Tangreen
No. 1 CA-CV 99-0542 (Ariz.App.Div.1
12/26/2000)
{1] IN THE COURT OF APPEALS STATE OF
ARIZONA DIVISION ONE
[2} No. 1 CA-CV 99-0542
[3] 2000.AZ.0042229
[4] December 26, 2000
[5] CHRISTY AND STEVEN JACKSON, WIFE
AND HUSBAND, PETITIONERS-APPELLANTS,
V.
SANDI TANGREEN, RESPONDENT -APPELLEE.
[6] Appeal from the Superior Court in Yavapai
County Cause No. DO 94-0203 The Honorable
Robert M. Brutinel, Judge The Honorable Howard
D. Hinson, Jr., Judge Pro Tempore
[7] Jones & Rosenberg Prescott by Kenton D.
Jones Attorneys for Petitioners-Appellants Law
Offices OF Robert L. FRUGE Prescott by Robert
L. Frugé Attorney for Respondent-Appellee
[8] The opinion of the court was delivered by:
Ryan, Judge titer
{9} DEPARTMENT C
[10] OPINION
[11] AFFIRMED
[12] q 1 In this appeal, we again hold that
Arizona’s grandparent visitation statute, Ariz.
Rev. Stat. Ann. (“A.R.S.”) § 25-409 (2000), is con-
stitutional. We also hold that the statute does not
unconstitutionally distinguish between two-par-
ent adoptions and stepparent adoptions by per-
31
mitting continuing grandparent visitation when
a child is adopted by a stepparent.
[13] BACKGROUND
[14] q2 Robert and Christy Thon were
married in July 1992. The couple had two chil-
dren, a boy born in 1992 and a girl born in 1993.
In 1994, Christy petitioned the court for disso-
lution of the marriage, and the couple was later
granted a divorce with Christy retaining primary
custody of the children. In April 1997, Robert
Thon’s mother, Sandi Tangreen, petitioned the
court for visitation with her grandchildren. After
hearing oral argument on the petition, the court
granted Tangreen visitation with the children.
[15] q3 In February 1998, Christy’s new
husband, Steven Jackson, petitioned to adopt
the two children. Christy and her former hus-
band both consented to the adoption. In July
1998, Tangreen filed a petition for continuation
of visitation, which the trial court granted. Steven
Jackson’s petition to adopt the children was
subsequently granted, and the order of adoption
was entered in August 1998. The Jacksons then
filed a petition to terminate Tangreen’s visita-
tion rights, arguing that A.R.S. section 25-409
is unconstitutional. *fnl The Jacksons appeal
from the trial court’s denial of their petition to
terminate visitation.
[16] DISCUSSION
[17] {4 The Jacksons raise several argu-
ments that we distill to two principal issues.
First, the Jacksons argue that A.R.S. section
25-409 is unconstitutional on its face because
32
it impermissibly interferes with their funda-
mental rights as parents in the care, custody,
and control of their children. Second, the.
Jacksons argue that A.R.S. section 25-409(F)
*fn2 conflicts with Arizona’s adoption statute,
A.R.S. § 8-117(A)(1999), and thus A.R.S. section
25-409(F) impermissibly distinguishes between
two- parent adoptions and stepparent adoptions.
We conclude that A.R.S. section 25-409 is con-
stitutional. We also conclude that A.R.S. section
25-409{F) does not unconstitutionally distin-
guish between two-parent adoptions and step-
parent adoptions.
[18] The Constitutionality of A.R.S. Sec-
tion 25-409
[19] q5 We review the constitutionality of
a statute de novo. See City of Tucson v. Woods,
191 Ariz. 523, 530, 959 P.2d 394, 401 (App.
1997). In conducting that review, we presume
that the statute is constitutional and must con-
strue it, if possible, to give it a constitutional
meaning. See State Comp. Fund v. Symington,
174 Ariz. 188, 193, 848 P.2d 273, 278 (1993).
The party alleging the constitutional violation
bears the burden of proving it. Eastin v. Broom-
field, 116 Ariz. 576, 580, 570 P.2d 744, 748
(1977). We will declare legislation unconstitu-
tional only if we are clearly convinced that it con-
flicts with the Arizona or United States Constitu-
tion. See State v. Arnett, 119 Ariz. 38, 48, 579
P.2d 542, 552 (1978).
[20] 76 In Graville v. Dodge, this court
held that Arizona’s grandparent visitation stat-
/
i
i
33
ute, A.R.S. § 25-409, did not unconstitutionally
infringe upon a parent’s fundamental right to
control child rearing. 195 Ariz. 119, 125, 4 23,
985 P.2d 604, 610 (App. 1999). We concluded
that because A.R.S. section 25-409 “neither sub-
stantially interferes with nor heavily burdens
parental rights,” it need only be rationally related
to a legitimate state purpose. Id. at § 24. We then
held that A.R.S. section 25-409 was ‘rationally
related to furthering the state’s legitimate inter-
est in enabling children to become responsible
adults by fostering relationships between grand-
children and their grandparents.” Id. at 126, 4
27, 985 P.2d at 611.
[21] 47 After oral argument in this appeal,
the United States Supreme Court issued its deci-
sion in Troxel v. Granville, 530 U.S. , 120 S.
Ct. 2054 (2000). In Troxel, the Supreme Court
affirmed the Washington Supreme Court’s ruling
that Washington’s nonparental visitation statute
was unconstitutional. Id. at __, 120 S. Ct. at
2059. We granted the Jacksons’ request for addi-
tional briefing on whether the Court’s decision in
Troxel affected this appeal.
[22] 478 In their supplemental brief, the
Jacksons contend that our analysis in Graville
no longer controls in light of the Supreme Court’s
decision in Troxel. Tangreen, on the other hand,
contends that Troxel’s holding is limited to the
Washington statute and does not affect the con-
Stitutionality of A.R.S. section 25-409. We con-
clude that Troxel does not affect our holding in
Graville.
34
[23] q9 In Troxel, no majority opinion
emerged. However, six of the justices agreed
with the state supreme court that the Wash-
ington statute was unconstitutionally overbroad
because it allowed “’any person’ to petition for
forced visitation of a child at ‘any time’ with the
only requirement that the visitation serve the
best interests of the child.” Id. (quotations omit-
ted); see also id. at___, 120 S. Ct. at 2061, 2064
(plurality opinion), 2065 (Souter, J., concurring),
2068 (Thomas, J., concurring). Four of these six
justices also found that the Washington statute
was unconstitutional as applied. Id. at__, 120
S. Ct. at 2064.
[24] q 10 Two factors support our conclu-
sion that the Supreme Court’s holding in Troxel
has no impact on A.R.S. section 25-409. First,
although the Court found the Washington stat-
ute’s language too broad to pass constitutional
muster, it refused to find nonparental visitation
statutes unconstitutional per se. Id.
[25] 411 Second, A.R.S. section 25-409
is much more narrowly drawn than the Wash-
ington statute in Troxel. In contrast to the Wash-
ington law, Arizona’s nonparental visitation stat-
ute is limited to grandparents and great-grand-
parents. A.R.S. § 25-409(A), (B). In addition, the
court may order visitation over parental objec-
tions only if the marriage of the parents has
been dissolved for at least three months, one
of the parents of the child is deceased or miss-
ing, or the child was born out of wedlock. Id. at
(A)(1)-(3). Further, the statute requires the court
Tee ee On ee ee Ee
35
to evaluate “all relevant factors” as well as five
specific factors to determine if visitation serves
the best interests of the child. Id. at (C)(1)-(5).
Thus, A.R.S. section 25-409 stands in stark con-
trast to the “breathtakingly broad” Washington
Statute. Troxel, 530 U.S. at ___, 120 S. Ct. at
2061.
[26] {12 Nevertheless, the Jacksons
argue that certain language in Troxel compels a
finding that A.R.S. section 25-409 violates their
fundamental due process right to make deci-
sions concerning the raising of their children.
We disagree and conclude that Arizona’s statute
satisfies the due process concerns articulated in |
Troxel.
[27] 413 The Court in Troxel focused
on two principle factors in concluding that the
Washington statute, as applied, violated the
mother’s “fundamental right to make decisions
concerning the care, custody, and control of her
[children].” Id. at ___, 120 S. Ct. at 2063. First,
no one alleged and no court found the mother to
be unfit. Id. at___, 120 S. Ct. at 2061. The Court
explained that a fit parent is presumed to act in
the child’s best interests, and thus courts “must
accord at least some special weight to the par-
ent’s own [visitation] determination.” Id. at __,
120 S. Ct. at 2062. In Troxel, the Washington
trial court did not give any special weight to the
mother’s visitation decisions. Id. at __, 120 S.
Ct. at 2061-62. Instead, the trial court based its
decision on its own presumption that third-party
visitation would benefit the child, effectively forc-
36
ing the mother to disprove the trial court’s pre-_
sumption. Id. at__, 120 S. Ct. at 2062. Second,
the mother had assented to some meaningful
visitation even before the filing of any visitation
petition or subsequent court intervention. Id. at
__., 120 S. Ct. at 2063. Thus, she did not seek
to deny visitation altogether; she merely sought
to limit it. Id. Nevertheless, the trial court failed
to accord significant weight to the mother’s prior
assent to visitation. Id. These factors, combined
with the trial court’s “slender findings” in favor of
the visitation order, convinced a plurality of the
Court that the Washington statute did no more
than permit the trial court to substitute its own
judgment for that of a fit parent. Id. at___, 120S.
Ct. at 2064. As a result, the Court concluded that
the Washington statute, as applied, “exceeded
the bounds of the Due Process Clause.” Id. at
__, 120S. Ct. at 2061, 2063-64.
[28] 414 We believe Arizona’s statute
does not exceed the “bounds of the Due Process
Clause.” Section 25-409 requires Arizona courts
to give weight to the parent’s visitation decisions.
For example, the court must assess “[t]he moti-
vation of the person denying visitation.” A.R.S. §
25-409(C)(3). It must also consider “[t]he motiva-
tion of the requesting party” and “[t]he histori-
cal relationship, if any, between the child and the
person seeking visitation.” Id. at (C)(1), (2). Also,
the court must assess the amount of visitation
requested and determine the impact that the vis-
itation will have on the child’s customary activi-
ties. Id. at (C)(4). As we concluded in Graville,
nT ee TTT
:
$
3
&
i”
4
&
x
3
2]
Sq
4
3
&
BT
ee
é
37
these procedural safeguards “show|] that the leg-
islature was conscious of parents’ superior right
to the custody and care of their children.” 195
Ariz. at 127, 985 P.2d at 612 (quoting West
v. West, 689 N.E.2d 1215, 1221 (Ill. App. Ct.
1998)). Moreover, as subsections (C)(1) through
(C)(4) suggest, our statute applies only in cases
in which a parent has denied visitation, not
merely limited it. Thus, by applying the statute
as written, Arizona courts do not violate the Due
Process Clause.
[29] 415 Because Troxel does not stand
for the proposition that nonparental visitation
statutes are per se unconstitutional, and because
A.R.S. section 25-409 satisfies the due process
concerns identified in Troxel, we reaffirm our
holding in Graville that A.R.S. section 25-409 is
constitutional.
[30] Arizona’s Adoption Statute and
A.R.S. Section 25-409(F)
[31] q16 The Jacksons’ second conten-
tion presents two related arguments. First, they
claim that A.R.S. section 25-409(F) conflicts with
the policy underlying A.R.S. section 8-117(A).
Second, the Jacksons assert that A.R.S. section
25-409(F) impermissibly distinguishes between
two-parent adoptions and stepparent adoptions.
We conclude that the legislature intended that
A.R.S. section 25-409(F) supersede the policy
behind A.R.S. section 8-117(A) as it relates to
grandparent visitation after stepparent adop-
tions. We also conclude that the legislature ratio-
nally distinguished between two-parent adop-
38
tions and stepparent adoptions in the context of
grandparent visitation.
[32] 417 We begin our analysis with two
principles in mind. First, adoption is a statu-
torily created concept, one that was unknown
at common law. In re Estate of Ryan, 187 Ariz.
311, 312, 928 P.2d 735, 736 (App. 1996); Pima
County Juv. Action No. B-7087, 118 Ariz. 437,
438, 577 P.2d 723, 724 (App. 1977), affd, 118
Ariz. 428, 577 P.2d 714 (1978). Second, because
adoption is “a statutory creation entirely sub-
ject to legislation,” it is within the legislature’s
power to “define and regulate adoption.” Estate
of Ryan, 187 Ariz. at 312, 928 P.2d at 736.
[33] 418 Section 8-117 defines the legal
relationship between parents and child upon the
entry of an order of adoption. After adoption, the
relationship between the adopted child and the
new parents is the same “as though the child
were born to the adoptive parent in lawful wed-
lock.” A.R.S. § 8-117(A). Therefore, the adopted
child can inherit property from the child’s new
parents, and the new parents can inherit prop-
erty from the adopted child. Id. The relationship
between the adopted child and the persons who
were his parents before the decree of adoption
is severed, and all “legal consequences of the
relationship cease to exist, including the right of
inheritance.” Id. at (B).
[34] 419 Under A.R.S. section 25-409(F),
visitation granted to grandparents or great-
grandparents “automatically terminate|s] if the
child has been adopted or placed for adoption.”
39
But, the legislature included a specific exception
for “the adoption of the child by the spouse of a
natural parent if the natural parent remarries.”
The Jacksons argue that this exception conflicts
with the policy behind A.R.S. section 8-117(A).
In our opinion, the legislature legitimately exer-
cised its power to define the status of children
in relation to their biological and adoptive fami-
lies when it amended Arizona’s grandparent visi-
tation statute to permit continued grandparent
visitation after adoption by a stepparent.
[35] 720 When enacted in 1983, the
grandparent visitation statute was codified at
A.R.S. section 25-337.01 and subsection (D) pro-
vided: “[aJll visitation rights granted under this
section automatically terminate if the child has
been adopted or placed for adoption. . . .” 1983
Ariz. Sess. Laws, ch. 109, § 1. This subsection
was Challenged in In re Marriage of Herreras,
159 Ariz. 511, 768 P.2d 673 (App. 1989), after a
grandmother’s visitation was automatically ter-
minated following the adoption of her grandchil-
dren by their father’s new wife. In affirming, this
court found that the legislature had clearly pro-
vided for termination of grandparent visitation
upon adoption, concluding that “public policy
requires recognition that an adoption decree cre-
ates a set of new relationships with the adoptive
parents and that old ties must be broken.” Id. at
512, 768 P.2d at 674 (citing Browning v. Tarwa-
ter, 524 P.2d 1135 (Kan. 1974)). *fn3
[36] {21 In 1992, the legislature amended
A.R.S. section 25- 337.01(D) to add the last sen-
40
tence, exempting from the provisions of that sub-
section cases in which the child is adopted by
the spouse of the natural parent. *fn4 1992 Ariz.
Sess. Laws, ch. 139, § 1. We presume that in
so doing, the legislature was aware of our prior
interpretation of A.R.S. section 25-337.01(D).
See, e.g., Wareing v. Falk, 182 Ariz. 495, 500,
897 P.2d 1381, 1386 (App. 1995) (noting that it
is well settled that the legislature is presumed to
know existing law when it enacts a statute). We
also presume that this amendment was intended
to specifically address our interpretation and,
in effect, legislatively overrule it. See McCandless
v. United S. Assurance Co., 191 Ariz. 167, 174,
953 P.2d 911, 918 (App. 1997) (stating that when
the legislature amends an existing statute, the
court presumes the legislature intended some
change in existing law). Because it is within the
legislature’s power to define the status of chil-
dren vis-a-vis their biological and adoptive fam-
ilies, see Estate of Ryan, 187 Ariz. at 313,
928 P.2d at 737, we conclude that the last sen-
tence of A.R.S. section 25-409(F) supersedes the
policy expressed in A.R.S. section 8- 117(A) as
it relates to grandparent visitation when a step-
parent adopts the child of the natural parent.
[37] {22 The Jacksons, however, con-
tend that A.R.S. section 25- 409(F) unconstitu-
tionally distinguishes between two-parent adop-
tions and stepparent adoptions. They argue that
A.R.S. section 25-409(F) affords Steven Jackson
a “lesser degree” of parenthood by virtue of
his adoption of his spouse’s minor children as
‘ 41
opposed to a “higher degree” of parenthood he
would have had under the statute if he had mar-
ried someone who was not the children’s mother
and then adopted the children. In essence, the
Jacksons’ argument is an equal protection claim
that the statute impermissibly classifies adop-
tive parents by the type of adoption. We conclude
that the statute’s classification does not violate
the Equal Protection Clause of either the Arizona
or federal constitution.
[38] {23 As discussed, adoptive parents’
rights exist only because the legislature created
them. Anguis v. Superior Court, 6 Ariz. App.
68, 72, 429 P.2d 702, 706 (1967). Nevertheless,
the legislature must act even-handedly when it
grants benefits to one group and denies them
to another. Tanner Cos. v. Superior Court, 144
Ariz. 141, 146, 696 P.2d 693, 698 (1985). “Thus,
the legislature may discriminate between classes
only if all those in a given class are treated
equally and the classifications are not unrea-
sonable.” Id. (emphasis omitted). The court will
uphold a law that implicates either a suspect
Classification or a fundamental right only if the
law is necessary to achieve a compelling state
interest. Wigglesworth v. Mauldin, 195 Ariz. 432,
438, ¥ 19, 990 P.2d 26, 32 (App. 1999). But,
“when a law does not substantially infringe upon
a person’s fundamental rights we examine the
challenged statute under the rational basis stan-
dard of review. That is, we will uphold the law
if it is reasonably related to a legitimate state
objective.” Graville, 195 Ariz. at 125, 4 22, 985 .
42
P.2d at 610 (citing San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1 (1973)).
[39] 924 Neither party claims that adop-
tive parents are a suspect class. But the Jack-
sons attempt to engraft Troxel’s reiteration that
parents have a fundamental right to “the care,
custody, and control of their children,” 530 U.S.
at___, 120 S. Ct. at 2060, onto Arizona’s adop-
tion scheme. They urge us to conclude that
an adoptive stepparent’s statutory right to con-
trol the rearing of his adopted child is coexten-
sive with a natural parent’s fundamental right.
Accordingly, the Jacksons ask us to strictly scru-
tinize A.R.S. section 25-409(F) and find it uncon-
stitutional because it classifies adoptive parents
by the nature of the adoption.
[40] 925 The Jacksons’ argument fails
for two reasons. First, only Justice Thomas
would have applied strict scrutiny to the statute
in Troxel. See id. at __, 120 S. Ct. at 2068
(Thomas, J., concurring). None of the other five
opinions explicitly stated the level of scrutiny
that it applied. Second, Troxel dealt with grand-
parents’ visitation imposed by a court on the
natural mother of a child born out of wedlock
who wanted to restrict it but not deny it. Thus,
the Court was presented only with the extent of
nonparental visitation in light of a natural par-
ent’s fundamental right in a due process context.
Troxel did not address how an adoptive steppar-
ent’s statutory rights are like a natural parent’s
fundamental right in an equal protection con-
text. Therefore, Troxel cannot stand for the prop-
43
osition that A.R.S. section 25- 409(F) is neces-
sarily subject to strict scrutiny. ;
[41] 726 Because we need not apply
Strict scrutiny, this court’s analysis in Graville
still controls. In Graville, we held that because
A.R.S. section 25-409 only permits visitation in
limited circumstances, it does not substantially
infringe on the fundamental parental right to
control a child’s upbringing. 195 Ariz. at 125, 4
23, 985 P.2d at 610. Thus, to be constitutional,
A.R.S. section 25-409(F) need only be rationally
related to a legitimate state purpose. To succeed
in proving A.R.S. section 25- 409(F) unconstitu-
tional, the Jacksons must negate every possible
rational basis for permitting grandparent visita- -
tion after a child is adopted by the spouse of a
natural parent who remarries. See Heller v. Doe,
909 U.S. 312, 320, 324 (1993).
[42] 427 The classification in A.R.S. sec-
tion 25-409(F) survives rational basis scrutiny. In
upholding A.R.S. section 25-409 in Graville, we
concluded that the state has a legitimate inter-
est in “promoting healthy family relationships
that enable children to become well-adjusted,
responsible adults,” including “the continuation
of caring relationships . . . among grandchil-
dren and their grandparents.” 195 Ariz. at 125,
J 26, 985 P.2d at 610. After a two-parent adop-
tion, however, the state’s interest in promoting
healthy relationships between grandchildren and
their biological grandparents is outweighed by
the need to make a clean break with the child’s
past. Cf. In re Maricopa County Juv. Action No.
44
JA-502394, 186 Ariz. 597, 599, 925 P.2d 738,
740 (App. 1996)(Kleinschmidt, J., concurring).
But this limitation does not prohibit the legisla-
ture from rationally concluding that a steppar-
ent adoption is materially different from a two-
parent adoption in that a stepparent adoption
does not involve the same need to make a clean
break with the child’s past.
[43] 928 The Illinois Supreme Court dis-
cussed the diminished need for a clean break in
stepparent adoptions in Lingwall v. Hoener, 483
N.E.2d 512, 516 (Ill. 1985). The Lingwall court
stated that “[iJn adoptions involving strangers,
the primary policy concern has traditionally been
with maximizing the pool of potential adoptive
parents ... .” Id. Complete termination of the
rights of the natural parents guarantees “that
the adoptive parents will have ‘the opportunity |
to create a stable family relationship free from
unnecessary intrusion.” Id. (quoting In re Roger
B., 418 N.E.2d 751 (Ill. 1981)). In contrast, “the
act of becoming a stepparent most often occurs
without regard to adoption and in spite of regu-
lar visitations between the child and the non-
custodial natural parent.” Id. While a subse-
quent adoption by a stepparent terminates the
rights and obligations of the natural parent,
“[tlermination of the parental relationship is. .
. a legal fiction since no act of law can nullify
a biological relationship.” Id. In light of these
differences between two-parent and stepparent
adoptions, the court found no reason to extend
this legal fiction to terminate “a grandparental
45
relationship unless it is in the child’s best inter-
est to do so.” Id.
[44] 929 Other courts have likewise rec-
ognized a diminished need for a clean break in
stepparent adoptions. The lowa Supreme Court
reasoned that the
[45] “fresh start’ policy .. . is much less
compelling where, as here, the child is adopted
only by a stepparent. In a very real sense, in
such an adoption, the status of the child changes
very little. A natural parent remains a parent.
The child’s home does not change. The adults
caring for him or her are the same. In many
cases the child’s name will not change. If there
is any real change, it is primarily in the status of
the adopting parent.” In re A.C., 428 N.W.2d 297,
300 (Iowa 1988) (quoting Patterson v. Keleher,
365 N.W.2d 22, 25 (Iowa 1985)); accord Hicks
v. Enlow, 764 S.W.2d 68 (Ky. 1989); Kanvick v.
Reilly, 760 P.2d 743 (Mont. 1988); Mimkon v.
Ford, 332 A.2d 199 (N.J. 1975); Hedrick v. Hed-
rick, 368 S.E.2d 14 (N.C. Ct. App. 1988); see also
In re Marriage of Aragon, 764 P.2d 419 (Colo. Ct.
App. 1988); In re Groleau, 585 N.E.2d 726 (Ind.
Ct. App. 1992); Howell v. Rogers, 551 So. 2d
904 (Miss. 1989); Rigler v. Treen, 660 A.2d 111
(Pa. Super. Ct. 1995). Accordingly, the legisla-
ture could have rationally concluded that grand-
parent visitation previously permitted by a trial
court under A.R.S. section 25-409 could con-
tinue after a stepparent adoption even though
such visitation would terminate after a two-par-
ent adoption.
46
[46] q30 Because the legislature could
have rationally concluded that the distinction
between two-parent and stepparent adoptions
warrants differential treatment regarding grand-
parent visitation, and because that differential
treatment furthers the legitimate state interest of
supporting caring relationships between family
members, A.R.S. section 25-409(F) does not vio-
late the principles of equal protection and is thus
constitutional.
[47] CONCLUSION
[48] q31 We reaffirm our holding in
Graville that A.R.S. section 25-409 is constitu-
tional on its face. We further hold that A.R.S.
section 25-409(F) supersedes the policy consid-
erations of A.R.S. section 8-117(A) and that it
does not unconstitutionally distinguish between
two-parent adoptions and stepparent adoptions.
[49] Accordingly, we affirm.
[50] MICHAEL D. RYAN, Judge
[51] CONCURRING:
[52] SUSAN. A. EHRLICH, Presiding
Judge
[53] JON W. THOMPSON, Judge
Opinion Footnotes
[54] *fn1 Although the Jacksons’ motion
was labeled a “Motion for Reconsideration,” in
substance, it was an affirmative petition for ter-
mination of Tangreen’s visitation rights. Juris-
diction on appeal from the denial of this petition
is thus proper under A.R.S. section 12-2101(C),
47
(E) (1994).
[55] *fn2 Section 25-409(F) reads in part
as follows: All visitation rights granted under
this section automatically terminate if the child
has been adopted or placed for adoption. .. .
This subsection does not apply to the adoption of
the child by the spouse of a natural parent if the
natural parent remarries.
[56] *fn3 In apparent response to Brown-
ing, the Kansas legislature in 1984 amended
its grandparent visitation statute to provide that
adoption of a child by the spouse of a surviving
parent would not defeat the biological grandpar-
ent’s visitation rights. See Sowers v. Tsamolias,
941 P.2d 949, 951 (Kan. 1997).
48
Supreme Court
State of Arizona
402 Arizona State Courts Building
1501 West Washington Street
Phoenix, Arizona 85007-3291
Noel K. Dessaint
Kathleen E. Kemply
Clerk of the Court
Chief Deputy Clerk
May 30, 2001
RE: CHRISTY AND STEVEN JACKSON vs
SANDI TANGREEN
Arizona Supreme Court No. CV-01-0036-PR
Court of Appeals Division One No. 1-CA-CV
99-0542
Yavapi County Superior Court No. DO 94-0203
GREETINGS:
The following action was taken by the Supreme
Court of the State of Arizona on May 23, 2001,
in regard to the above-referenced cause:
ORDERED: Petion for Review - Denied
Record returned to the Court of Appeals, Divi-
sion One, Phoenix, this 30th day of May, 2001.
Noel K Dessaint, Clerk
TO:
49
Kenton D. Jones, Esq., Jones & Rosenberg
Robert L. Fruge, Esq.
West Publishing Company
Lexus-Nexus
Glen D Clark, Clerk, Court of Appeals, Division
One
50
25-409 . Visitation rights of grandparents
and great-grandparents
A. The superior court may grant the grand-
parents of the child reasonable
visitation rights to the child during his minor-
ity on a finding that the
visitation rights would be in the best interests of
the child and any of the
following are true:
1. The marriage of the parents of the child has
been dissolved for at least
three months.
2. A parent of the child has been deceased or
has been missing for at least
three months. For the purposes of this para-
graph, a parent is considered to
be missing if the parent’s location has not
been determined and the parent
has been reported as missing to a law enforce-
ment agency.
3. The child was born out of wedlock.
B. The superior court may grant the great-
grandparents of the child
reasonable visitation rights on a finding that
the great-grandparents would
be entitled to such rights under subsection A if
the great-grandparents were
51
grandparents of the child.
C.In determining the child’s best interests the
court shall consider all
relevant factors, including:
1. The historical relationship, if any, between
the child and the person
seeking visitation.
2. The motivation of the requesting party in
seeking visitation.
3. The motivation of the person denying visita-
tion.
4. The quantity of visitation time requested
and the potential adverse
impact that visitation will have on the child’s
customary activities.
S. If one or both of the child’s parents are
dead, the benefit in
maintaining an extended family relationship.
D. If logistically possible and appropriate the
court shall order visitation
by a grandparent or great-grandparent to occur
when the child is residing or
spending time with the parent through
whom the grandparent or
great-grandparent claims a right of access to
the child. Ifa parent is
52
unable to have the child reside or spend time
with that parent, the court
shall order visitation by a grandparent or
great-grandparent to occur when
that parent would have had that opportunity.
E.A grandparent or great-grandparent seeking
to obtain visitation rights
under this section shall petition for these
rights in the same action in
which the parents had their marriage dissolved
or by a separate action in
the county where the child resides if no action
for dissolution has been
filed or the court entering the decree of
dissolution no longer has
jurisdiction.
F. All visitation rights granted under this sec-
tion automatically terminate
if the child has been adopted or placed for
adoption. If the child is
removed from an adoptive placement, the
court may reinstate the visitation
rights. This subsection does not apply to the
adoption of the child by the
spouse of a natural parent if the natural parent
remarries.
53
ARS § 8-117. Rights under adoption order
A. On entry of the decree of adoption, the rela-
tionship of parent and child and all the legal
rights, privileges, duties, obligations and other
legal consequences of the natural relationship
of child and parent thereafter exist between
the adopted child and the adoptive parent as
though the child were born to the adoptive
parent in lawful wedlock. The adopted child is
entitled to inherit real and personal property
from and through the adoptive parent and
the adoptive parent is entitled to inherit real
and personal property from and through the
adopted child the same as though the child
were born to the adoptive parent in lawful wed-
lock.
B. 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. This
subsection does not apply to communication
rights established pursuant to section 8-116.01.
C. If the adoption is by the spouse of the child’s
parent, the relationship of the child to that
parent remains unchanged by the decree of
adoption.
54
IN THE SUPERIOR COURT OF THE STATE OF ARI-
ZONA IN AND FOR THE COUNTY OF YAVAPI
In re the Marriage of
CHRISTY ANN JACKSON, Petitioner
and
ROBERT RAY THON, Respondent
DO 94-0203
Before: THE HONORABLE HOWARD D. HINSON,
JUNIOR
REPORTER’S TRANSCRIPT OF PROCEEDINGS
PETITION FOR CONTINUATION OF GRANDPAR-
ENT’S VISITATION RIGHTS
Prescott, Arizona
July 17, 1998
10:00 o’clock a. m.
PREPARED BY:
M. Lisa Edgar, R.P.R., C.P.,
Court Reporter
PREPARED FOR:
Mr. Kenton Jones, Esq.
Attorney at Law
Record on Appeal
35
Excerpt starting on page 17 of the transcript.
Examination of Cristy Jackson, Petitioner and
Mother.
EXAMINATION CONTINUED
By Mr. Jones
Q. You had concern. Can you tell the Court
what the concerns were about visitation going on
this summer?
A. Their safety.
Q. How is that?
A. Well, last time they went there was winter
time an she [Respondent] pulled them on sleds
behind her vehicle. My kids are never are on
snow and she tied the rope to the sled to the
van and pulled the kids. They don’t know how to
play in snow. If they go flying off they don’t know
what is going to happen to them.
Q We're talking about what ages of the
children?
A They were four and five at that time.
Q Have you had other concerns, anything
other than being pulled upon a sled behind the
car?
56
A They were so attached to me they were
afraid to leave my shadow because that was the
first time they have had to go with her. They had
never gone with her. She jumped into their life
last year. That was it.
Q So when -- when we hear testimony
about long attachments and lengthy periods of
visiting with the children, that wasn’t true until
the order was entered by Judge Brutinel?
A That she got -- I didn’t understand.
Q I believe her testimony earlier was there
was a long history of a relationship with the
children and bonding and visitation.
A No.
Q That’s not true?
A She came down one time with her son
when her son got them three weeks one time
out of their if and my daughter was six months
old when | left her father, real father, and she
wasn’t around.
Q So the first time there was any of this
sort of visitation or lengthy period of visitation
was last year?
- A Last year was the first time they actually
had to go out of Bagdad with her.
57
Q They were four and five years old?
A Yes.
Picking up the transcript on page 50 with
the court’s concluding remarks
THE COURT: Okay. I spoke to Judge Bru-
tinel about this matter last night before I went
home. As I drove home | coincidentally was con-
templating exactly what Mr. Fruge [Respondent’s
Trial Attorney] just commented upon and what
you brought up; do you add to these children’s
lives with a husband and father, of course, who
does support and participate everyday and in
every way that fathers parent children? Do you
add to those children’s lives in that way with his
extended family and his parents and aunts and
uncles.
In doing so, do you then have to detract
from the children’s lives by taking an erasure
and removing someone who is willing to drive the
thousands of miles from far away to come down
here and spend time with them and invest that,
and has invested a continued effort in dealing
with you?
But I’m not so sure you were very charitable
to her. I’m not trying to criticize her. You don’t
like her husband or her son, your ex-husband.
You couldn’t stay married to him, and even she
concedes that he turned out to be much less as
a father and provider. It is difficult for her to
58
deal with and not easy for her to let her into her
life and children’s lives. Those things are under-
standable. No one, myself included, can criticize
her for those difficulties that you have to strug-
gle with.
But, again, you get back to the concept does
this addition that you’re adding to these kids’
lives mean the subtraction of somebody else that
takes a lot of trouble and effort and time to be
part of their lives and have them learn to know
her and where she lives and be someone that
they have as a resource in their lives?
These children have finite periods of time
and there is only X amount of time time that they
can spend with her and that only leaves Y time
for everybody else, and that’s valid. But at the
same time do you add the benefit of your new
husband and their new father and at the same
time subtract someone else that really cares
about them and has been the only one to come
forward and take that effort.
We don’t have a bunch of other grandpar-
ents standing up saying, “I want Guideline visi-
tation too.” She has been the only one that has
done that, taken the effort and time to do that.
My answer from my position is no, you
don’t subtract an asset in these children’s lives
because you have added other assets to the chil-
dren’s lives, but at the same time when we get
to the point in the case, if we do, that I have
to decide whether Guideline visitation as if you
were a parent is appropriate after the adoption,
if the adoption takes place, I’m not sure I would
iaieamemeeiieimanisaiiiiaimasibaiiiaiiall
39
come to the same conclusion.
I’m not so sure Judge Brutinel would either
because I think he was trying to say, I believe he
was trying to say basically if the father doesn’t
visit for if he will visit when you make it easy for
him then I will give you what he had, but I don’t
know that it is appropriate to give you what he
would have or would enjoy in the future under
the new circumstances of these children’s lives,
and | think that it is appropriate for Judge Bru-
tinel to consider.
I would assert that you should think about
that in the context of the adoption proceeding. |
think Judge Brutinel will consider, if he grants
this adoption, does it mean I’m deducting some-
thing from these children’s lives because that
is implicitly in the best interests of your chil-
dren, and in making that decision does it meant
they no longer interact with their paternal grand-
mother and those kinds of things?
The dad; I don’t think any of us have any
concern about that. If he is not willing and able
to be a force and factor in these children’s lives
and take the time, trouble and effort so they
know him and interact with him, that’s his busi-
ness and he is the adult.
But by the same token, I don’t think it’s
harmful if you make it easy for him and he
comes around the kids; “This is my dad.” He is
the one who decided they were better off with
Mr. Jackson and he is the one that really doesn’t
ever do anything except when it was easy.
They’re going to know that, even at four and
60
five. They'll have that concept every year until
the time they grow up. They’re going to know
who cared for them, who cared enough to do
something and who offered to do things and as
far as justification not being around when they
needed him.
So, given all of that, you two are very, very
nice and very decent people, and I think that you
are coming at this from a parental angle and that
parental angle is what is best for them. I don’t
know. There is somebody up there in another
state that really cares about them enough to
spend the time, trouble and effort to do what’s in
their best interests.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.