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(Cite
as: 135 Ariz. 240, 660 P.2d 491)
Court
of Appeals of Arizona,
Division
2.
Thurza
Johnson GOCLANNEY, Petitioner/Appellee,
and
White
Mountain Apache Tribe, Intervenor/Appellee,
v.
Normand
George DESROCHERS and Nadine Desrochers, Respondents/Appellants.
No.
2 CA-CIV 4412.
Dec.
14, 1982.
Rehearing
Denied Feb. 4, 1983.
Review
Denied March 8, 1983.
Under
statute providing that any "irregularity" in adoption proceeding shall be
deemed cured after one year from date that adoption decree
is entered, lack of jurisdiction in court granting adoption decree
was not "irregularity," and thus natural mother could attack jurisdiction
of Texas court to grant adoption decree. A.R.S. § 8-123.
Under
Texas law, Texas court lacked jurisdiction to enter adoption decree
where natural mother, adoptive mother, custodian, and child were not
domiciliaries of Texas. V.T.C.A., Family Code § 16.01.
Domicile
of illegitimate child is determined by that of his mother.
*240
**491
Ann R. Littrell, Whiteriver, for petitioner/appellee.
Robert C. Brauchli, Whiteriver, and Anthony R. Cohen, Tucson, for
intervenor/appellee.
Gaynes & Rockafellow, P.C. by Leighton H. Rockafellow, Tucson, for
respondents/appellants.
OPINION
HOWARD, Chief Judge.
Petitioner/appellee filed for a writ of habeas corpus in the
superior court. The *241
**492
main and determinative issue is whether Texas had jurisdiction to
grant the adoption by appellant of a child who was
a registered member of the White Mountain Apache Tribe. The
trial court made findings of fact which are binding on
us unless they are clearly erroneous. Olson
v. State,
12 Ariz.App. 105, 467 P.2d 945 (1970).
The findings and the record disclose the following. Appellee Thurza
Johnson Goclanney is the natural mother of Lalita Johanna Johnson.
Both Thurza and Lalita are enrolled members of the White
Mountain Apache Tribe. Thurza was not married when Lalita was
born.
In June 1975, Thurza agreed to place Lalita for temporary
care with The House of Samuel, Inc., a Tucson-based Christian
placement organization. The House of Samuel, in turn, placed Lalita
with appellants. The placement was understood by all to be
only temporary and revocable at any time by Thurza.
In November 1975, Thurza took Lalita from appellants and returned
with her to the reservation. However, two weeks later she
agreed to let appellant have Lalita for one year and
Nadine Desrochers picked up Lalita in Cibecue, Arizona, on the
Fort Apache Indian Reservation in December 1975.
On July 30, 1976, Thurza married Hubert Goclanney, an enrolled
tribal member. They went to Dallas, Texas, the next month.
Although they remained in Texas until February 1977, neither Hubert
nor Thurza registered to vote there or obtained Texas driver's
licenses. They left personal property on the reservation in Arizona
and listed Arizona addresses on their 1976 and 1977 tax
returns as their place of residence.
In the fall of 1976 Thurza asked her sister, Kathleen
DeClay, to care for Lalita. Kathleen, who already had temporary
custody of Thurza's other child, agreed to do so. In
early December 1976, Kathleen requested the tribal court and council
to help her obtain custody of Lalita. The tribal court
entered an order on December 8, 1976, granting temporary custody
to Kathleen DeClay pending a hearing.
On December 10, tribal officials and individual tribal members, including
Kathleen
DeClay, went to Tucson to retrieve Apache children who had
been placed with the House of Samuel. While the tribal
members were there, Donie Green, an employee of the House
of Samuel, called appellants to tell them that tribal judge
Anna Early had entered an order requiring them to return
Lalita to the reservation. Normand Desrochers told Donie Green, "When
I hang up I am gone." The next day, appellants
flew to Texas with Lalita and their younger son.
After arriving in Texas, appellants contacted an attorney in Fort
Worth and made an appointment for Monday, December 13. The
attorney prepared an "Affidavit of Relinquishment of Parental Rights by
Mother" and "Affidavit of Status." Appellants then went to Thurza's
apartment, showed her the documents and told her they were
temporary custody papers. Thurza tried to read the documents but
could not understand them. Appellants drove Thurza to the office
of a notary public, James Horan. Horan never read or
explained the documents to Thurza, although he did ask if
she realized she was "giving up" her child. Thurza signed
the documents believing they were temporary custody papers. Her execution
of the documents was acknowledged by Horan, but was not
witnessed by two witnesses as required by Texas law. Thurza
was not given a copy of the documents.
The day after the documents were signed, appellants, Lalita and
the younger son flew back to Tucson. They then returned
to Fort Worth eleven days later, leaving
their home and some of their children in Tucson. On
January 17, 1977, appellants filed a joint petition in Texas
seeking to terminate Thurza's parental rights and to adopt Lalita.
Thurza was never notified of the proceedings and did not
participate in them. She and her husband returned to the
Apache reservation in February 1977.
During their stay in Fort Worth, appellants leased a small
one-bedroom apartment for themselves, their children and Lalita. Only their
youngest child attended school *242
**493
there. Although Normand Desrochers was unemployed during the entire stay
in Fort Worth, appellants never attempted to rent or sell
their Tucson home nor did they disconnect the utilities there.
They kept open their Tucson bank account and continued to
receive mail at their Tucson address. They also listed Tucson
as their legal residence when they filed their 1976 income
tax return in February 1977.
On March 1, 1977, the Texas court entered orders that
terminated Thurza's parental rights and made appellants adoptive parents of
Lalita. Appellants returned to Arizona a few days after the
Texas adoption orders were entered.
Thurza filed a petition for a writ of habeas corpus
and the tribe was allowed to intervene. Both parties requested,
inter alia, that the custody proceeding be transferred to the
tribal court pursuant to 25 U.S.C. Indian Child Welfare Act,
§ 1911(a),
(b) and (c). After hearing the evidence the trial court
found that the Texas court had no jurisdiction to terminate
parental rights
and grant an adoption and it transferred the proceedings to
the tribal court.
A.R.S. § 8-123 provides:
"After
one year from the date the adoption decree is entered,
any irregularity in the proceeding shall be deemed cured and
the validity of the decree shall not thereafter be subject
to attack on any such ground in any collateral or
direct proceeding."
Since the habeas corpus was filed more than one year
after the date of the decree, appellants contend appellees cannot
attack the decree. We do not agree. We need not
decide whether Texas' curative statute, which provides for a two-year
period, is the statute to be applied rather than Arizona's
because it is clear that Arizona's statute applies to an
"irregularity." The lack of jurisdiction here was not an "irregularity."
The Texas jurisdictional requirement
in adoption cases are found in § 16.01 of the Texas Family
Code Ann. which states: "Any child residing
in this State at the time the petition requesting adoption is filed may
be adopted." (Emphasis added)
Must a minor child be a legal resident or domiciliary
of Texas? That is the crucial issue here. Appellants argue
that § 16.01
requires only the presence of the child in Texas or
temporary residence at the most. Appellees argue that the statutes
require that the child be domiciled in Texas.
Some courts, including Arizona, have taken the position that the
residence within the state or county required of an adoptee
or adoptive parent as the case may be, in order
to effect an adoption, means legal residence or domicile. In
Re Adoption of Rials,
220 La. 484, 56 So.2d 844 (1952); In
Re Webb's Adoption,
65 Ariz. 176, 177 P.2d 222 (1947); Brown
v. Hall,
385 Ill. 260, 52 N.E.2d 781 (1944); Johnson
v. Smith,
94 Ind.App. 619, 180 N.E. 188 (1932); Foster
v. Waterman,
124 Mass. 592 (1878). The Restatement of Conflicts (Second) § 78
is in accord with the foregoing cases:
"A
state has power to exercise judicial jurisdiction to grant an
adoption if
(a)
it is the state of domicile of either the adopted
child or the adoptive parent, and
(b)
the adoptive parent and either the adoptive child or the
person having legal custody of the child are subject to
its personal jurisdiction."
Also in agreement with the foregoing cases and the Restatement
view is Goodrich & Scoles, Conflict of Laws, 4th Ed.
§ 146
where the authors state that if the parties are not
all domiciled in the same state an adoption can probably
be accomplished at the domicile of either the adopting parent
or the adoptive child by a court having the child
or, if a minor, its legal custodian before it. We
conclude that Texas requires that the child be domiciled in
Texas.
Lalita's
domicile might, depending on several factors, be determined either by
the domicile of appellant, of Lalita's mother Thurza,
[FN1] or Lalita's
aunt, Kathleen DeClay. *243
**494
It is not necessary, however, to decide which of these persons determined
Lalita's domicile because none of them were, according to the findings
of fact and conclusions of law made by the trial court, domiciliaries
of Texas.
FN1.
The domicile of an illegitimate child is determined by that
of his mother. In
Re Estate of Moore,
68 Wash. 792, 415 P.2d 653 (1966); 25 Am.Jur.2d, Domicile
§ 69.
Affirmed.
HATHAWAY and BIRDSALL, JJ., concur.
135 Ariz. 240, 660 P.2d 491
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