                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                          In re the Marriage of:

             SUSAN M. DOTY-PEREZ, Petitioner/Appellant,

                                    v.

             TONYA L. DOTY-PEREZ, Respondent/Appellee.

                        No. 1 CA-CV 15-0844 FC
                              FILED 12-29-16


          Appeal from the Superior Court in Maricopa County
                         No. FN2015-001747
              The Honorable Suzanne E. Cohen, Judge

                              AFFIRMED


                               COUNSEL

Gregg R. Woodnick PLLC, Phoenix
By Leslie A.W. Satterlee, Markus W. Risinger
Counsel for Petitioner/Appellant

Berkshire Law Office PLLC, Phoenix
By Keith Berkshire, Megan Lankford
Counsel for Respondent/Appellee
                      DOTY-PEREZ v. DOTY-PEREZ
                         Opinion of the Court



                                 OPINION

Judge Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Charles W. Gurtler1 joined.


T H O M P S O N, Judge:

¶1             Appellant, Susan M. Doty-Perez (Susan), seeks reversal of the
family court’s order denying her request to be declared a legal parent of
four children legally adopted by her ex-spouse while they were married, in
light of the United States Supreme Court’s marriage equality decision in
Obergefell v. Hodges, 576 U.S. __, 135 S.Ct. 2584 (2015). For the following
reasons, we affirm the family court’s decision.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Susan and Appellee, Tonya L. Doty-Perez (Tonya), began
living together in October 2010. Tonya adopted a child, who is not a subject
of this appeal, two months later. The parties were legally married in Iowa
in July 2011, but at all relevant times resided in Arizona.

¶3           Subsequent to their marriage, the parties agreed that Tonya
would adopt four special needs children from foster care in May 2012,
January 2013, April 2013, and February 2014, respectively. While the parties
agreed Tonya would be the adoptive parent, they intended to raise the four
children together, as two parents. They would have adopted the children
together but could not because, at the time of the adoptions, Arizona did
not recognize same-sex marriage and legally prohibited same-sex
adoptions.

¶4             At some point, the parties’ relationship began to erode. Susan
alleges that, as their relationship was ending, on April 8, 2014, she asked
Tonya for permission to adopt the children through a second-parent
adoption, but Tonya did not consent. Susan moved out of the marital
residence on April 12, 2014. She did not petition to adopt the children.



1      The Honorable Charles W. Gurtler, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article 6, Section
3 of the Arizona Constitution.


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                       DOTY-PEREZ v. DOTY-PEREZ
                          Opinion of the Court

¶5            On October 7, 2014, the Ninth Circuit declared non-
recognition of same-sex marriage unconstitutional in Latta v. Otter, 771 F.3d
456, 464-65 (9th Cir. 2014). On October 17, 2014, in Majors v. Horne, 14 F.
Supp. 3d 1313, 1315 (D. Ariz. 2014), the U.S. District Court for the District
of Arizona declared Arizona’s ban on same-sex marriage unconstitutional,
and enjoined the state from enforcing its ban. Susan filed a Petition for
Dissolution of Non-Covenant Marriage Without Minor Children and also
requested in loco parentis visitation on April 14, 2015. She later clarified the
latter was a temporary orders request.2 In May 2015, Susan requested to
amend her petition to a “Petition to [sic] Dissolution of Marriage WITH
children and request for joint legal decision making and parenting time.”

¶6             In June 2015, the United States Supreme Court decided
Obergefell. In that case, the Court held the Fourteenth Amendment requires
states to both license same-sex marriages and to recognize same-sex
marriages that were lawfully licensed and performed in another state.
Obergefell, 576 U.S. at __, 135 S.Ct. at 2593-608.

¶7            The following month, Susan filed a “Motion to Find Petitioner
a Parent of Minor Children and Memorandum in Support of Amended
Petition for Dissolution With Children.” After additional briefing and oral
argument, the court issued an order denying Susan’s petition to be declared
a legal parent. In its order, the court found: (1) Susan “has proven by a
preponderance of the evidence that had Arizona allowed same-sex-
marriage and adoption at the time of the adoption of the four (4) children,
the parties would have jointly adopted the children;” (2) after October 17,
2014, Susan could have filed a legal request to adopt the children but did
not do so; and (3) after October 2014 Susan asked Tonya if she could enter
into a step-parent adoption, but Tonya denied that request.

¶8           Susan timely appealed to this court. We have jurisdiction3
under Article 6, Section 9, of the Arizona Constitution and pursuant to

2       As of this appeal, Susan has temporary in loco parentis visitation with
all five children under an order entered by stipulation. The issue of in loco
parentis visitation is not before us in this appeal. The family court entered
an appealable “Order/Judgment Pursuant to Rule 78(B)” only as to the
issues of parentage, legal decision-making, parenting time, and child
support.

3     On appeal, Tonya argues this case is not “ripe” for judicial review,
and thus not justiciable, because there was no joint petition, or denial of a



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                       DOTY-PEREZ v. DOTY-PEREZ
                          Opinion of the Court

Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) (2016) and -2101
(2016).4

                               DISCUSSION

¶9            The parties raise many arguments, some of which are
inconsistent with each other, and the briefs do not join all of the issues. To
assure the parties that we have considered their respective arguments on
appeal, we begin by summarizing the issues. Ultimately, we find one
dispositive issue, see infra ¶ 15, and based on our resolution of that issue,
affirm the family court’s decision.

¶10            Susan argues the family court should have declared her to be
a legal parent of the four children through either of two legal avenues— 1)
by modifying the adoption decrees to declare her a legal parent of the four
children, or 2) in the alternative, by declaring her a de facto parent with full
legal parent status, as in In re Parentage of L.B., 122 P.3d 161 (Wash. 2005).

¶11           As to the issue of modifying the adoption decrees, Susan
claims the family court erred in declining to modify the decrees, under the
existing statutory scheme, because under Obergefell Arizona’s refusal to
recognize the parties’ 2011 marriage was unconstitutional, and but for that
infirmity, Susan and Tonya would have jointly adopted all four children, in
accordance with their intent and pursuant to A.R.S. § 8-103(A) (2016).5 The
statute she cites provides that “[a]ny adult resident of this state, whether
married, unmarried or legally separated, is eligible to qualify to adopt
children. A husband and wife may jointly adopt children.” (Emphasis
added.) A.R.S. § 8-103(A). Susan contends that because § 8-103(A) would
have allowed her to adopt the children with Tonya, but for Arizona’s


petition, for adoption of the four children. We disagree. Here, we are
presented with a legal conflict pertaining to the adoption or legal parentage
of the four subject children; this is a conflict well within our powers to
decide. See, e.g., Winkle v. City of Tucson, 190 Ariz. 413, 417, 949 P.2d 502,
506 (1997) (indicating a case is ripe for review when it presents an actual
conflict).

4     Absent material changes after the relevant date, we cite a statute’s
current version.

5      Susan argues the family court should utilize the “remedy” of a nunc
pro tunc order to retroactively cure the constitutional prohibition. A nunc
pro tunc order is not a remedy and therefore not a viable option in this case.


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                       DOTY-PEREZ v. DOTY-PEREZ
                          Opinion of the Court

unconstitutional refusal to recognize their marriage, the family court
should have ruled that she in effect did jointly adopt the children with
Tonya. As noted, Susan did not file a petition to adopt under § 8-103(A)
after Latta, Majors, or Obergefell. Such an adoption would have required
Tonya’s consent. See A.R.S. § 8-106(A)(1) (2014). Susan contends that, given
Tonya’s refusal to consent, she would have risked sanctions for bringing a
frivolous claim if she had filed an adoption petition.

¶12           As to the issue of de facto parentage, Susan argues the court
may exercise its equitable authority to recognize de facto parentage and
grant her parental status equivalent to that of a legal parent, “even if limited
to cases in which married parties adopt children but the adoption order lists
only one spouse as a parent.” In support of this argument, she asserts that
because A.R.S. § 8-117(A) (2014) states that an adoptive child should be
treated as though the child was born “in lawful wedlock” she is deemed the
presumptive second parent pursuant to A.R.S. § 25-814’s marital
presumption. See A.R.S. § 25-814 (A)(1) (2007).

¶13          Susan additionally maintains that the family court’s failure to
grant her legal parent status violates the Fourteenth Amendment’s due
process and equal protection guarantees by denying the children the
psychological benefits of a parental relationship with her and subjecting
them to inequitable treatment because they were adopted into a family with
same-sex parents prior to marriage equality in Arizona.

¶14            In response to the first argument, Tonya argues that Obergefell
has not been held to retroactively create adoptions in situations, like this,
where only one party to a same-sex marriage was allowed to adopt a child.
She additionally argues that because A.R.S. § 8-103(A) does not require
married couples to adopt jointly, but only permits them to do so, absent a
joint request, the court is bound to grant parentage only to an individual
who actually petitions for adoption, and not also to his or her spouse. As
to Susan’s second argument, Tonya posits that Arizona does not recognize
de facto parentage under either A.R.S. §§ 25-401(4) (defining a legal parent),
-814, or 8-117(A).

¶15         We agree with Tonya that Arizona does not recognize de facto
parentage. We find the dispositive issue is whether, as a matter of law, if
          6



6      There is no Arizona statute recognizing the equitable de facto parent
doctrine. Furthermore, the doctrine is not ordinarily recognized as
supporting an argument for gaining parental status equivalent to that of a



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                       DOTY-PEREZ v. DOTY-PEREZ
                          Opinion of the Court

a married person adopts a child, that person’s spouse is also deemed or
presumed to be a legal parent, with all the legal rights and obligations
attached to that status, merely because the couple intended to adopt
together. We think not.

¶16            Pure questions of law, including those involving
constitutional provisions, are reviewed de novo. Hall v. Lalli, 194 Ariz. 54,
57, ¶ 5, 977 P.2d 776, 779 (1999); Cave Creek Unified Sch. Dist. v. Ducey, 231
Ariz. 342, 347, ¶ 8, 295 P.3d 440, 445 (App. 2013). We recognize that under
Obergefell, Arizona must credit the parties’ marriage as having taken place
in 2011, prior to Tonya’s adoption of the four children. See Obergefell, 576
U.S. at __, 135 S.Ct. at 2607-08 (stating a state must give full faith and credit
to marriages lawfully licensed in other states). However, we do not read
Obergefell to support Susan’s paramount contention that the right of same-
sex couples to marry and have their marriages recognized under the
Fourteenth Amendment of the U.S. Constitution requires that states
retroactively modify adoptions by individuals in same-sex marriages who
would have jointly adopted, if they had been allowed to. See id. at 2601

legal parent, as Susan argues for here. See, e.g., Miller v. California, 355 F.3d
1172, 1176 (9th Cir. 2004) (“A de facto parent has an interest in the care of
the child that is entitled to legal protection; however, de facto parents are
not equated with biological parents.”); Olvera v. Cty. of Sacramento, 932 F.
Supp. 2d 1123, 1141 (E.D. Cal. 2013) (recognizing the limited rights de facto
parent status provides and that such rights “are not equated with the rights
of parents”) (internal quotation and citation omitted); E.N.O. v. L.M.M., 711
N.E.2d 886, 891 (Mass. 1999) (“A child may be a member of a nontraditional
family in which he is parented by a legal parent and a de facto parent.”).

       Moreover, the only Arizona Court of Appeals opinion discussing the
doctrine, Egan v. Fridlund-Horne, 221 Ariz. 229, 237, ¶ 27, 211 P.3d 1213, 1221
(App. 2009), “sharply disagree[d]” with In re Parentage of L.B., which Susan
contends is her strongest authority for applying the equitable theory in this
case. Even though the petitioner in Egan did not expressly seek visitation
under the doctrine, Egan expressed vigorous disagreement with the
Washington Supreme Court’s conclusion that “if a person can establish
standing as a de facto parent, then that person has a fundamental liberty
interest in the care, custody, and control of the child, to the same extent as
the legal parent.” Id. (citing In re Parentage of L.B., 122 P.3d at 178, ¶ 45)
(holding that Washington’s “common law recognizes the status of de facto
parents and places them in parity with biological and adoptive parents”).
Washington’s common law logic holds no weight in this state.



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                       DOTY-PEREZ v. DOTY-PEREZ
                          Opinion of the Court

(explaining that marriage is a historical basis for “an expanding list of
governmental rights, benefits, and responsibilities,” including “adoption
rights,” but not addressing the issue of same-sex adoptions, neither
retroactively nor prospectively). In the absence of a constitutional mandate
under Obergefell to retroactively modify adoption decrees, we turn to what
is permissible under Arizona law.

¶17           In Arizona, adoption is a creature of statute. Matter of Estate
of Ryan, 187 Ariz. 311, 312, 928 P.2d 735, 736 (App. 1996) (stating that
adoption is a statutorily created concept, unknown at common law and
within the legislature’s power to “define and regulate”) (internal quotation
and citations omitted); Anguis v. Superior Court In and For Maricopa Cty., 6
Ariz. App. 68, 72, 429 P.2d 702, 706 (App. 1967) (noting that adoption “exists
as a creature of statute which must be strictly construed”). We review
issues of statutory construction and interpretation de novo. See Barry v.
Alberty, 173 Ariz. 387, 389, 843 P.2d 1279, 1281 (App. 1992) (citations
omitted).

¶18             The court’s primary goal in interpreting a statute is to give
effect to legislative intent, focusing on the plain language as the indicator of
that intent. If a statute’s language is unambiguous and the meaning does
not create an impossibility or absurdity, “courts must observe the natural
import of the language used and are not free to extend the meaning though
the result may be harsh, unjust or mistaken policy.” Members of Bd. of Educ.
of Pearce Union High School Dist. v. Leslie, 112 Ariz. 463, 465, 543 P.2d 775,
778 (1975) (citation omitted).          Applying those rules of statutory
construction, we hold that Susan is not entitled to parental status or full
legal parental rights under any of the relevant statutory provisions.

¶19           In the case of adoption, in contrast to biological parentage,
there is no presumption, either under A.R.S. § 25-8147 or any other related



7      This statute confers a paternal presumption of parentage to the
husband of a woman who gives birth to a child, if the two were married “at
any time in the ten months immediately preceding the birth [of the child]
or the child is born within ten months after the marriage is terminated . . .
.” A.R.S. § 25-814(A)(1). McLaughlin v. Jones (McLaughlin), 240 Ariz. 488, 382
P.3d 118 (App. 2016), which involved a child born to a mother in a same-
sex marriage and invoked this marital presumption on behalf of the non-
birthing spouse, does not apply in this case involving adopted children.
Tonya adopted the children and this case involves no issue as to the



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                      DOTY-PEREZ v. DOTY-PEREZ
                         Opinion of the Court

Arizona statute, granting legal parental rights or obligations to a non-
adoptive spouse merely because of her marriage to a person who has
adopted a child. To be vested with such rights and to be so beholden, an
individual, either separately, or, if married, jointly with another individual,
must formally adopt the child. See A.R.S. § 25-401(4) (2013) (defining a legal
parent as “a biological or adoptive parent . . .”). To be sure, in light of
Obergefell, A.R.S. § 8-103’s language that “[a] husband and wife may jointly
adopt,” see supra ¶ 11, must be interpreted to also mean that “a wife and
wife” or “husband and husband” may jointly adopt. However, the
adoption statute’s use of the permissive “may” indicates there is no
presumption of parentage for a non-adoptive spouse.8 To apply such a
presumption would be to ignore an adoptive parent’s spouse’s individual
agency to decide whether to directly and deliberately assume the role of a
legal parent by taking the steps necessary to establish a legal relationship
with the adopted child.

¶20           Nor does A.R.S. § 8-117(A) support a different conclusion. A
proper reading of the statute’s “in lawful wedlock” language is not
susceptible to the determination for which Susan argues when the statute
is examined in its entirety. Susan essentially contends that we should read
the “in lawful wedlock” language to deem every adoption by one married
parent a two-parent adoption based solely on the parties’ intent to adopt
together.9   However, “[e]very provision of a statute must be read in

biological parents of these four children, whose rights necessarily would
have been waived or severed prior to the adoptions.

8     The parties have cited no authority, and we are unaware of any,
where a presumption of paternity has been applied to the husband of a
woman who adopts a child by herself.

9       We reject Susan’s request that we consider this case, and particularly
A.R.S. § 8-117(A), in the context of Sheets v. Mead, 238 Ariz. 55, 356 P.3d 341
(App. 2015). Sheets did not directly analyze section 8-117(A), but analyzed
it so as to give meaning to the family court’s ability to award visitation to a
nonparent under A.R.S. § 25-409(C)(2), if visitation is deemed in the best
interest of the child and the child was “born out of wedlock and the child’s
legal parents are not married to each other at the time the petition is filed.”
A.R.S. § 25-409(C)(2); see Sheets, 238 Ariz. at 56-58, ¶¶ 1, 12-17, 356 P.3d at
342-344. The ultimate conclusion in Sheets was that the court was without
authority to award in loco parentis visitation with an adopted child to a
nonparent, under A.R.S. § 25-409, without the consent of the unmarried



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                       DOTY-PEREZ v. DOTY-PEREZ
                          Opinion of the Court

conjunction with the other provisions, giving meaning, if possible, ‘to each
word, clause or sentence, considered in the light of the entire act itself and
the purpose for which it was enacted into law.’” State v. Jones, 196 Ariz. 306,
307, ¶ 7, 995 P.2d 742, 743 (App. 1999) (quoting Frye v. South Phoenix
Volunteer Fire Co., 71 Ariz. 163, 168, 224 P.2d 651, 654 (1950)). In its entirety,
A.R.S. § 8-117(A) provides:

       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 natural
       relationship of child and parent thereafter exists between the
       adopted child and the adoptive parent as though the child were
       born 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 wedlock.

(Emphasis added.)

¶21           Section 8-117(A)’s language is clear that the “rights,
privileges, duties . . .” created by an adoption decree exist between the
adopted child and the adoptive parent, as if the child had been born to the
adoptive parent. Under the statute the “in lawful wedlock” status is only
attached to the child through the decree of adoption. The statute thus
arranges the adopted child’s status relative only to an adoptive parent or
parents. It does not also implicitly create an adoption of the child by a
spouse who has not actually adopted the child. If the legislature intended
A.R.S. § 8-117(A) to have the effect that Susan argues for, it would have
worded the statute to say “between the adopted child and the adoptive
parent and his or her spouse.”



adoptive parent, because A.R.S. § 8-117(A) changed the status of an
adoptive child to that of a child “born in wedlock.” Sheets, 238 Ariz. at 56,
¶ 1, 356 P.3d at 342. Thus, as Susan concedes, Sheets is distinguishable from
this case as it examined the issue of in loco parentis visitation rights of a
nonparent, which as noted supra note 2, is not before this court. Even if
Sheets pertained to the issue of parental status, it would not support a
change of Susan’s parental status as a result of her being married to Tonya,
as Susan argues; Susan would still legally be a nonparent as to the four
children.


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                      DOTY-PEREZ v. DOTY-PEREZ
                         Opinion of the Court

¶22           Additionally, the clear interpretation of A.R.S. § 25-401(4)’s
definition of a legal parent, see supra ¶ 19, is that, except in the case of
biology, the only legal mechanism that may establish legal parenting status
and attach the associated rights and obligations is an order of adoption.

¶23            Thus, we cannot order legal parent status for Susan, despite
the fact that the parties intended to adopt the children together, but did not
only because it was legally impermissible at the time, and Tonya later
refused to consent to Susan petitioning for adoption of the four children,
prior to their divorce and after same-sex adoptions were legal in Arizona.
We are without authority to confer legal parent status to Susan when she
never actually petitioned the court to acquire that status while she was still
married to Tonya. While we empathize with Susan because our holding
leaves her without parental rights and obligations for four children she
loves, provided and cared for, the relevant statutes do not support a
contrary conclusion.

                              CONCLUSION

¶24          For the reasons stated above, we affirm the court’s order
denying Susan’s request to be declared a legal parent of the four children
legally adopted by her ex-wife during their marriage.




                           AMY M. WOOD • Clerk of the Court
                           FILED:    JT


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