JOHN A. McGUIRE, Judge of Superior Court.
The dates and names are not set forth in this opinion and have been deleted from any direct quotations from the record. We will refer to the child as the child; to the natural parents as the father and mother; to the adopting parents as the adopting parents or as may be appropriate as the adopting father and the adopting mother.
The father and mother were husband and wife and had been for an appropriate time before the birth of the child. The mother is a member of a respectable working family and she was employed before her marriage. It was not until after her marriage that she had trouble with the law. The father was not a model; he worked little and drank too much. The mother’s first problem with the law was her arrest and plea of guilty in another state as an accessory to a forgery, she having passed the check which her husband forged.
She wrote several insufficient checks in Phoenix and two checks so written were held by the authorities in Tucson. Within days after the birth of the child she was arrested in Phoenix in connection with the checks. The father was a relative of the adopting mother and the child was given to the persons who later petitioned as the adopting parents and who cared for the child. On pleas of guilty the mother was sent to the Arizona State Prison for two. consecutive terms of one to five years each.
[49]*49The adopting parents, with the consent of the mother, became the child’s legal guardians. At the time she consented to the guardianship the mother stated she would not consent to an adoption. The record discloses she never consented to an adoption but has resisted it from the start.
The petition for appointment of guardian under which the adopting parents obtained the legal custody of the child recites :
“That the natural parents of said minor child have asked petitioners herein to take the minor child into their home and to raise and support said minor until such time as said parents are re-united as husband and wife and are able to provide a fit and proper home for said minor child; that predicated on the foregoing situation, the parents of said minor child did on or about the * * * leave said child with petitioners.” (Emphasis supplied)
The father died. The child received approximately $90 a month from the Veterans’ Administration and from Social Security which the adopting parents as guardians placed in a savings account for the child.
The adopting parents had the care of the child for approximately a year and a half before they filed their petition for adoption. It was after the filing of the petition and prior to the hearing that the father died. At the time of the petition and at the time of the hearing, the mother was in Arizona State Prison. She attended the hearing and with the aid of counsel from the Legal Aid Society contested the adoption. Her brother and his wife came to Phoenix to testify and to offer their aid as well as the aid of her parents. Nothing adverse to the family is found in the record. The mother received the promise of reemployment with her former employer upon her release from confinement. The brother testified that he had made arrangements to pay the outstanding checks in Tucson and that the county attorney had agreed to dismiss any charges arising therefrom.
At the time of the hearing the mother was 26 years of age. The adopting parents were well-established people approximately 20 years older than the mother and of a different religion. Their 6 children range in age from 24 to 13 years. The 3 youngest still live at home. The evidence disclosed that the adopting parents were fully qualified in all respects to be the parents of the child although the mother urges that they were too old.
In the findings of fact prepared by the trial judge there is no finding that the mother was an unfit person. There are but two findings of fact that are derogatory to the mother. They are
“5. That on * * * the natural mother was arrested in Maricopa County, Arizona, on one or more charges of having passed bogus checks or checks drawn on accounts of insufficient funds; that she subsequently pleaded guilty to two counts and was sentenced to serve consecutive terms of one to five years each.
“6. That the natural mother is presently a prisoner in the Arizona State Prison and will not be eligible for parole before * * *_>>
The date given is approximately fifteen months from the date of hearing; however it does appear from an affidavit made by the natural mother in connection with the taking of her appeal and which was copied into the abstract of( record that in fact she was released from prison less than three months from the hearing date and immediately returned to her former home area and went back to work at her old job. This last matter cannot however be considered on the question of whether error was committed.
The trial court however did expressly find “that the best interest of the child will [50]*50be promoted by permitting the petitioners to adopt him”. The interlocutory order purported to sever the parental rights of the mother to the child and this is urged as error.
Through legal aid another attorney perfected and presented the appeal. Appeals may be taken from interlocutory orders, as well as from final orders of adoption. A. R. S. § 8-110.
An attack is made upon the jurisdiction of the trial court by appellant upon various grounds, of which only one need be discussed in this opinion. The regular juvenile judge of Maricopa County transferred this matter to Judge Hardy for hearing. Rule XVI (a) (2) of the Uniform Rules of Practice, as amended February, 1967, 17 A.R.S., provides that in Maricopa County the juvenile court division is “ * * * charged with Juvenile and Adoption matters and habeas corpus proceedings involving juveniles”. We construe this to provide a general rule of practice for the hearing of these cases and not as precluding the judge of the juvenile court in Maricopa County from transferring an adoption case to another judge.
This Court must then proceed to the real and vital question in this case, which is what must appear and what findings must be made before a child is adopted over the objection of the natural mother.
Arizona has a number of judicial decisions involving cases where the natural mother of the child has consented to the adoption and later has endeavored to retract the consent (e.g., In Re Adoption of Krueger, 104 Ariz. 26, 448 P.2d 82 (1968); In Re Holman’s Adoption, 80 Ariz. 201, 295 P.2d 372 (1956).) These cases are however not in point in the present case where the mother has fought from the start. In Lee v. Thomas, 297 Ky. 858, 181 S.W.2d 457, 460 (1944), it was held: '
"But no opinion of ány court so far as we are aware approves the right in anyone to take away from natural parents the custody of their children solely upon the ground that the adopting parent is better prepared to provide superior advantages to the child which the natural parent for any cause might be unable to provide.”
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JOHN A. McGUIRE, Judge of Superior Court.
The dates and names are not set forth in this opinion and have been deleted from any direct quotations from the record. We will refer to the child as the child; to the natural parents as the father and mother; to the adopting parents as the adopting parents or as may be appropriate as the adopting father and the adopting mother.
The father and mother were husband and wife and had been for an appropriate time before the birth of the child. The mother is a member of a respectable working family and she was employed before her marriage. It was not until after her marriage that she had trouble with the law. The father was not a model; he worked little and drank too much. The mother’s first problem with the law was her arrest and plea of guilty in another state as an accessory to a forgery, she having passed the check which her husband forged.
She wrote several insufficient checks in Phoenix and two checks so written were held by the authorities in Tucson. Within days after the birth of the child she was arrested in Phoenix in connection with the checks. The father was a relative of the adopting mother and the child was given to the persons who later petitioned as the adopting parents and who cared for the child. On pleas of guilty the mother was sent to the Arizona State Prison for two. consecutive terms of one to five years each.
[49]*49The adopting parents, with the consent of the mother, became the child’s legal guardians. At the time she consented to the guardianship the mother stated she would not consent to an adoption. The record discloses she never consented to an adoption but has resisted it from the start.
The petition for appointment of guardian under which the adopting parents obtained the legal custody of the child recites :
“That the natural parents of said minor child have asked petitioners herein to take the minor child into their home and to raise and support said minor until such time as said parents are re-united as husband and wife and are able to provide a fit and proper home for said minor child; that predicated on the foregoing situation, the parents of said minor child did on or about the * * * leave said child with petitioners.” (Emphasis supplied)
The father died. The child received approximately $90 a month from the Veterans’ Administration and from Social Security which the adopting parents as guardians placed in a savings account for the child.
The adopting parents had the care of the child for approximately a year and a half before they filed their petition for adoption. It was after the filing of the petition and prior to the hearing that the father died. At the time of the petition and at the time of the hearing, the mother was in Arizona State Prison. She attended the hearing and with the aid of counsel from the Legal Aid Society contested the adoption. Her brother and his wife came to Phoenix to testify and to offer their aid as well as the aid of her parents. Nothing adverse to the family is found in the record. The mother received the promise of reemployment with her former employer upon her release from confinement. The brother testified that he had made arrangements to pay the outstanding checks in Tucson and that the county attorney had agreed to dismiss any charges arising therefrom.
At the time of the hearing the mother was 26 years of age. The adopting parents were well-established people approximately 20 years older than the mother and of a different religion. Their 6 children range in age from 24 to 13 years. The 3 youngest still live at home. The evidence disclosed that the adopting parents were fully qualified in all respects to be the parents of the child although the mother urges that they were too old.
In the findings of fact prepared by the trial judge there is no finding that the mother was an unfit person. There are but two findings of fact that are derogatory to the mother. They are
“5. That on * * * the natural mother was arrested in Maricopa County, Arizona, on one or more charges of having passed bogus checks or checks drawn on accounts of insufficient funds; that she subsequently pleaded guilty to two counts and was sentenced to serve consecutive terms of one to five years each.
“6. That the natural mother is presently a prisoner in the Arizona State Prison and will not be eligible for parole before * * *_>>
The date given is approximately fifteen months from the date of hearing; however it does appear from an affidavit made by the natural mother in connection with the taking of her appeal and which was copied into the abstract of( record that in fact she was released from prison less than three months from the hearing date and immediately returned to her former home area and went back to work at her old job. This last matter cannot however be considered on the question of whether error was committed.
The trial court however did expressly find “that the best interest of the child will [50]*50be promoted by permitting the petitioners to adopt him”. The interlocutory order purported to sever the parental rights of the mother to the child and this is urged as error.
Through legal aid another attorney perfected and presented the appeal. Appeals may be taken from interlocutory orders, as well as from final orders of adoption. A. R. S. § 8-110.
An attack is made upon the jurisdiction of the trial court by appellant upon various grounds, of which only one need be discussed in this opinion. The regular juvenile judge of Maricopa County transferred this matter to Judge Hardy for hearing. Rule XVI (a) (2) of the Uniform Rules of Practice, as amended February, 1967, 17 A.R.S., provides that in Maricopa County the juvenile court division is “ * * * charged with Juvenile and Adoption matters and habeas corpus proceedings involving juveniles”. We construe this to provide a general rule of practice for the hearing of these cases and not as precluding the judge of the juvenile court in Maricopa County from transferring an adoption case to another judge.
This Court must then proceed to the real and vital question in this case, which is what must appear and what findings must be made before a child is adopted over the objection of the natural mother.
Arizona has a number of judicial decisions involving cases where the natural mother of the child has consented to the adoption and later has endeavored to retract the consent (e.g., In Re Adoption of Krueger, 104 Ariz. 26, 448 P.2d 82 (1968); In Re Holman’s Adoption, 80 Ariz. 201, 295 P.2d 372 (1956).) These cases are however not in point in the present case where the mother has fought from the start. In Lee v. Thomas, 297 Ky. 858, 181 S.W.2d 457, 460 (1944), it was held: '
"But no opinion of ány court so far as we are aware approves the right in anyone to take away from natural parents the custody of their children solely upon the ground that the adopting parent is better prepared to provide superior advantages to the child which the natural parent for any cause might be unable to provide.”
That court then went on to hold that a consent once executed could not be arbitrarily rescinded which is in accordance with the Arizona rule.
No Arizona case can be found in which an adoption has been granted over the objection of the natural parent, who had never consented, without a finding of unfitness. The nearest to such a■ case is In Re Clough, 28 Ariz. 204, 236 P. 700 (1925), in which it was held that the evidence was sufficient to show that the best interests of the child would be served by its adoption; however the matter of unfitness was not discussed, nor were the specific findings mentioned in the opinion.
In the case of In Re Clark, 38 Ariz. 481, 486, 1 P.2d 112 (1931), the court quoted 1 Cal.Jur. 436, § 19, as follows'
“The parents are the natural guardians and cannot be deprived of their right to the care, custody, society and services of their children, except by a proceeding to which they are made parties, and in which it is shown that they are unfit or unwilling or unable to perform their parental duties. Every intendment should be in favor of the claim of the parent upon the evidence, and where the statute is open to construction and interpretation, it should be construed in support of the right of the natural parent.”
In Caruso v. Superior Court In and For County of Pima, 100 Ariz. 167, 173, 412 P.2d 463, 467 (1966), the court said in reference to juvenile court proceedings:.
“We will recogniz'e petitioner’s right to his child until his unfitness' clearly appears or until it is shown by clear and convincing evidence that the child is de[51]*51pendent, neglected, incorrigible, or delinquent.”
Even in custody matters it has been held that there must be a showing of parental unfitness or neglect before custody may be given to another. Clifford v. Woodford, 83 Ariz. 257, 320 P.2d 452 (1957). This is true even though the custody can be changed back to the parent in proceedings subsequently brought if such appears for the welfare of the children. Adoption on the other hand is final; the parents’ rights are not merely suspended but completely destroyed; and the rights of the child in the parent are likewise destroyed; hence a stronger showing should he required against the parent than for deprivation of custody.
“Although there are some decisions which apparently grant or deny the adoption solely on the ground of the child’s welfare, it must be noticed that in every case where a parent’s protest to the adoption is unavailing, the parent has been guilty of conduct which would make it undesirable for such parent to have the care and custody of the child, and the welfare of the child to be promoted consisted in something more than mere pecuniary advantage.” 2 C.J.S. Adoption of Children § 21, p. 384 (1936).
“Generally speaking, adoption statutes will be strictly construed in favor of the rights of the natural parents in controversies involving termination of the relation of parent and child, especially in those cases where it is claimed that owing to misconduct his consent to the adoption is not required. Every intendment should be made in such a case in favor of the parent’s claim, and where the statute is open to construction and interpretation, it should be construed in support of the parent’s natural rights.” 2 Am.Jur.2d, Adoption, § 7, p. 866 (1962).
The adopting parents, in their capacity as guardians, already had custody of the child and -the mother could not interfere with such custody without a court order. This is true even though adoption proceedings had never been filed or had been dismissed. There was, therefore, no reason why the question of the adoption of this child could not be delayed until the mother had been released from prison and given an opportunity to show by her life whether her child should be forever taken from her. Check offenses of the type involved herein do not prove per se that a mother is unfit and should never be allowed the custody of her child.
The trial judge should either have dismissed the petition without prejudice to its refiling after the mother’s release or continued the matter to await that contingency.
A parent, who has never consented to the adoption, may not, over his objection be deprived of his child by having it adopted to another, unless his neglect or unfitness if clearly made to appear.
This construction of the law is in accord with the duty and policy of the law to protect the parent-child relationship and is supported by the authorities above cited. The Supreme Court of the United States in Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1924), said in invalidating an act requiring all children to attend the public schools:
“The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Grave questions of constitutionality would arise were it to be held that a child could be adopted away from his natural parents who had never consented, and over their obj ection, without any showing of neglect or unfitness.
The interlocutory decree purported to sever the appellant’s parental rights. Such 'rights may be severed only by the final order of adoption. A.R.S. § 8-108, subsec. [52]*52A. Anguis v. Superior Court, 6 Ariz.App. 68, 429 P.2d 702 (1967).
A completely new hearing is not necessary as the case can be remanded with instructions to reopen the original hearing and take such additional testimony as may be offered by either of the parties as to all material matters. The mother must show the circumstances of her life following release from prison.
That portion of the interlocutory decree purporting to sever the parental rights of the mother is stricken and the case is remanded to the Superior Court of Maricopa County for further proceedings in accordance with this opinion.
DONOFRIO, C. J., concurs.