A court-approved adoption while a biological parent is appealing his loss of parental rights is illegal and void, the state Court of Appeals ruled Thursday.
In a somewhat split ruling, the majority of the three-judge panel said a Mohave County Superior Court judge was wrong in allowing the foster parents, identified only as Jimmy S. and Tracie H., to adopt the two children without the issue of the father's parental rights finally resolved. The appellate judges reversed the adoption order.
In a separate concurring opinion, Judge Patricia Norris said she believes the trial judge could proceed with the adoption while the rights of the biological parent were still at issue on appeal. But she concurred with the decision to void the adoption, saying once the father gained back his rights then the adoption had to be dissolved.
Court records show the biological father, identified as Roberto F., was stripped of her parental rights in 2011. But while he was appealing, the Department of Child Safety, acting on behalf of the foster parents, sought court permission for them to adopt the children. The adoption was granted, with the biological father provided no notice of the petition or the hearing as he no longer had parental rights.
Last year, however, the appellate court overturned the order terminating the father's rights. But the judge rejected his motion to set aside the adoption.
Appellate Judge Kenton Jones said the court rules are clear. He said juvenile judges cannot act on other new matters involving children while there is an appeal pending in a related case. In this case, he said, the adoption was a new issue, divesting the juvenile court — and any juvenile judges — from moving forward with the adoption.
Jones also pointed out that by allowing the adoption, the juvenile court “completely severed ... all the legal rights, privileges, duties, obligations and other legal consequences of the relationship.” In doing so, Jones said, the juvenile judge “effectively terminated his parental rights a second time, and did so without his knowledge or consent.”
And what that did, Jones said, is prevented the father from actually getting the relief the appellate court had granted him: his parental rights.
Jones said the ruling stems from a basic issue.
“Parents have a protected, fundamental liberty interest in the care, custody and management of their child,” he wrote. “Although this interest is not without limits, the interest does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state.”