In Re the Appeal in Pima County Juvenile Action B-10489

727 P.2d 830, 151 Ariz. 335, 1986 Ariz. App. LEXIS 605

• Court: Court of Appeals of Arizona
• Decided: August 11, 1986
• Docket: 2 CA-CIV 5548
• Status: Published

Opinions

CORRECTED OPINION

HATHAWAY, Chief Judge.

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

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

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

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

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

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

FINDINGS OF FACT

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

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

3. This Court, pursuant to authority granted to it under A.R.S. Section 8-105(1) certified petitioner as nonacceptable to adopt.

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

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

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

CONCLUSIONS OF LAW

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

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

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

I. APPOINTMENT OF COUNSEL

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

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

II. FINDINGS AND CONCLUSIONS

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

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

The juvenile court, upon receiving the precertification report, “shall certify the applicant as being acceptable or nonacceptable to adopt children based on the investigation report and recommendations of such report.” A.R.S. § 8-105(1). The investigation report which was filed by the division in this case recommended that appellant be certified as acceptable to adopt children.

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

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

The norm of appellate review of the record is whether it supports the trial court’s ruling. Appellate courts do not reweigh the evidence, but rather only look to determine if there is evidence to sustain the ruling of the judge below. State v. Veatch, 132 Ariz. 394, 646 P.2d 297 (1982); Matter of Appeal in Maricopa County Juvenile Action No. A-25525, 136 Ariz. 528, 667 P.2d 228 (App.1983). We believe the dissent has strayed from this rule of appellate review and has taken a piecemeal approach resulting in dismantling the ruling. The trial court had the opportunity to observe the demeanor of the witnesses and gauge their credibility. Due regard must be given the trial court’s findings of fact. United Bank v. Mesa N. O. Nelson Company, Inc., 121 Ariz. 438, 590 P.2d 1384 (1979). The dissent would substitute its judgment for that of the trial court. We believe the record calls for deference to the factfinder.

The primary issue the court should consider when deciding whether to certify an applicant as suitable to adopt children is the best interest and welfare of any child who might be adopted by that person. The situation is akin to the problem before courts when determining custody or visitation as between natural parents, where the controlling standard is the best interest of the child. Henning v. Henning, 89 Ariz. 330, 362 P.2d 124 (1961); Gowland v. Martin, 21 Ariz.App. 495, 520 P.2d 1172 (1974). A fortiori, this criterion must control when considering adoption inasmuch as custody and visitation determinations are subject to modification upon changing conditions, while single-parent adoptions are final with no subsequent available option of shifting custody between parents. Once an adoption is final, the sole means of reversal is by termination of parental rights — a remedy not lightly undertaken.

As the dissent correctly notes, the judge was concerned over a child’s reaction in the future on learning of appellant’s sexual orientation. Appellant testified that he would seek advice from professionals for guidance to deal with that issue. After the adoption has been completed, however, there is no method by which the court or any state agency could require that such guidance be sought by appellant.

The trial court’s dissatisfaction with the division caseworker’s written report is understandable. While appellant provided a W-2 wage and tax statement from his employer and confirmation of a salary increase during the hearing, the caseworker who conducted the adoptive home study was not aware of appellant’s employment status at the time the study was prepared. His employment began in February 1984 and the home study was completed in May 1984, yet it does not mention his then-current employment status, indicating a somewhat less than thorough investigation.

In her testimony, the caseworker expressed doubts about appellant’s support network. She stated that it would remain a continuing concern even through placement if appellant were certified. The caseworker also testified that she did not have any information about the cause or degree of depression appellant suffered in 1973 and 1974. Appellant testified concerning that period of depression, but the caseworker did not follow up on appellant’s mention of it in his autobiography.

It is apparent after considering all of the caseworker’s reports and testimony that she recommended the certification largely because, although she recognized that appellant had problems that might affect his ability to be a good parent, he, like she, was experienced in counseling and his promise to seek counseling would resolve future problems in the relationship with the adoptive child. We share the trial judge’s concern that seeking counseling per se will not resolve all the potential problems that may occur once a child is placed with appellant. We defer to the trial court.

The amicus brief centers its argument on the self-presumed fact that the trial court based its decision solely on appellant’s sexual orientation. The dissent also maintains that appellant’s bisexuality was the sole reason for the denial of his petition to be certified as acceptable to adopt children. We disagree. As we have stated, we find ample evidence to support the trial court without examining that issue.

However, we believe appellant’s ambivalence in his sexual preference was very appropriately a concern of the court. As we have stated previously, the primary concern of the court, to the exclusion of all else, is the best interest and welfare of any child. Certainly the sexual orientation of one who petitions to be certified as acceptable to adopt a child is a factor to be reviewed and evaluated by the court. Certification of acceptability for adoption should not be lightly undertaken. While a second hearing is required before a child may be adopted, the judge before whom such hearing is held may be expected to place considerable reliance upon the certification hearing.

We note the cases cited by the dissent wherein the sexual orientation of a parent was not a sufficient factor to change custody or alter visitation rights. There are an equal number of cases wherein the courts did change the custody of minor children or alter visitation because of a parent’s sexual activity. See Chaffin v. Frye, 45 Cal. App.3d 39, 119 Cal.Rptr. 22 (1975); S. v. S., 608 S.W.2d 64 (Ky.App.1980); Irish v. Irish, 102 Mich.App. 75, 300 N.W.2d 739 (1980); J.L.P. (H) v. D.J.P., 643 S.W.2d 865 (Mo.App.1982); L. v. D., 630 S.W.2d 240 (Mo.App.1982); N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo.App.1980); In the Matter of J.S. & C., 129 NJ.Super. 486, 324 A.2d 90 (1974); In re Jane B., 85 Misc.2d 515, 380 N.Y.S.2d 848 (1976); Jacobson v. Jacobson, 314 N.W.2d 78 (N.D.1981); Roberts v. Roberts, 22 Ohio App.3d 127, 489 N.E.2d 1067 (1985); M.J.P. v. J.G.P., 640 P.2d 966 (Okla.1982); Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985); Bennett v. O’Rourke, (Tenn.App., filed 11/5/85) [Available on WESTLAW, TN-CS database]; Roe v. Roe, 228 Ya. 722, 324 S.E.2d 691 (1985).

The fact that appellant is bisexual is not unlawful nor, standing alone, does it render him unfit to be a parent. It is homosexual conduct which is proscribed. A.R.S. §§ 13-1411 and 13-1412. Such statutes have been held constitutional. Bowers v. Hardwick,—U.S.-, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986).

Appellant testified that it was possible that he at some future time would have some type of homosexual relationship with another man even with placement of a child in his home. He also testified that he did not believe the possibility of continued homosexual activity would have an adverse affect on a child that he might adopt. It would be anomalous for the state on the one hand to declare homosexual conduct unlawful and on the other create a parent after that proscribed model, in effect approving that standard, inimical to the natural family, as head of a state-created family. The trial court may have been dissatisfied with the showing with reference to appellant’s conduct as distinguished from his homosexual predisposition.

Considering the record in the light most favorable to the trial court’s ruling, we affirm.

Affirmed.

FERNANDEZ, J., concurs.

1 . An agency other than the division may conduct investigations and submit reports. A.R.S. § 8-105(A) and (F). "Agency" may mean a person licensed by DES to place children for adoption, including an attorney or a law firm. A.R.S. § 8-101(2). There is no showing that appointed counsel in this case was such an "agency."