Petition for Writ of Certiorari — Jackson v. Tangreen

Supreme Court brief2001

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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Citations of Published and Unpublished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-

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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

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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.

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