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(Cite as: 2003 WL 1908386 (Ariz.App. Div. 2))

Court of Appeals of Arizona,

Division 2, Department B.


CHEREE L., Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY and Precious W., Appellees.


No. 2 CA-JV 2002-0069.


April 22, 2003.

Mother and Indian nation challenged decision of Superior Court, Pima County, No. 14514800, Suzanna S. Cuneo, Judge Pro Tempore, refusing to set aside order terminating mother's parental rights to Indian child. The Court of Appeals, Espinosa, C.J., held that: (1) mother's conditional voluntary relinquishment of parental rights to child was not a general consent to termination but a voluntary consent to adoption, such that mother was permitted under Indian Child Welfare Act (ICWA) to withdraw consent at any time prior to entry of final decree of adoption, and (2) res judicata would not prevent mother from challenging termination of her parental rights.


Reversed and remanded.

OPINION


ESPINOSA, Chief Judge.


*1 ¶ 1 Appellant Cheree L., joined by the Tohono O'Odham Nation, challenges the juvenile court's order of January 11, 2002, refusing to set aside its order of April 3, 2001, terminating Cheree's parental rights to Precious W., an Indian child. [FN1] For the reasons stated below, we reverse.


FACTS AND PROCEDURAL BACKGROUND


¶ 2 In November 1998, the Arizona Department of Economic Security (ADES) took temporary custody of Precious, born on October 6, 1998, and her half sister, Jaeline, born July 3, 1993. ADES filed a dependency petition shortly thereafter in which it alleged that Cheree had a chronic substance abuse problem and that the children were at risk of being abused and neglected. ADES further alleged that Precious had tested positive for cocaine at birth. The Nation moved to intervene pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 through 1963, and the court granted that motion. It is undisputed that Precious is an Indian child under the Act and that it applies.


¶ 3 After a preliminary protective hearing, the children were placed with Jaeline's paternal grandparents (C. and J.). [FN2] In December, Cheree admitted the allegations of an amended dependency petition. The juvenile court adjudicated Jaeline and Precious dependent and continued their placement with the grandparents, giving ADES the discretion to place Precious with Cheree at the drug treatment facility where she was then residing.


¶ 4 After Cheree completed the drug treatment program and complied with other requirements of the court-approved case plan, Jaeline and Precious were apparently returned to her. But Cheree relapsed, and the children again were removed from her custody. After a permanency planning hearing in August 2000, the court ordered the parties to participate in mediation. At a hearing in November, the parties told the court they were negotiating an agreement whereby the children would again be placed with C. and J., who were willing to adopt both children. In the meantime, ADES filed a motion to terminate Cheree's parental rights on the grounds of mental illness or addiction and length of time in court-ordered, out-of-home care. In its minute entry of the initial severance hearing held in January 2001, the court reported that ADES had made "statements that the mother is prepared to execute ICWA Relinquishments." The minute entry also stated that Cheree's counsel had told the court Cheree was "prepared to proceed on the consent forms." The court continued the severance hearing so the proper documents could be prepared.


¶ 5 At the March 16 severance hearing, ADES amended its motion to terminate Cheree's parental rights to both children to allege the ground for severance as relinquishment or consent to adoption pursuant to § 8-533(B)(7), rather than mental illness or addiction to drugs or alcohol and out-of-home placement. [FN3] At that time, Jaeline's father signed a relinquishment, pursuant to which his parental rights were severed. The court also severed the rights of Precious's father, who did not appear at the hearing, based on his having abandoned the child. Cheree signed a "Consent to Custody, Adoptive Placement and Termination of Parental Rights" (the consent), in which she relinquished her rights, expressly agreeing to C.'s and J.'s adopting Precious and Jaeline. The court then severed Cheree's rights and permitted Cheree's court-appointed counsel to withdraw her representation.


*2 ¶ 6 On March 27, ADES lodged with the court "Findings of Fact, Conclusions of Law and Order" (severance order) in which it stated, inter alia, that Cheree had "relinquished her parental rights" to Precious and Jaeline "by executing in open court on March 16, 2001, a Consent to Place a Child for Adoption" and that the consent complied with ICWA. The severance order further stated that termination of Cheree's parental rights was in the children's best interests; that by signing the consent, Cheree had relinquished her parental rights; and that "such constitutes cause for termination of her parental rights pursuant [to] A.R.S. § 8-533(B)[7]." ADES also filed a notice that it had lodged the proposed severance order with the court, stating that opposing counsel had five days to object to the order. No objection was filed, and the juvenile court signed the severance order on April 3, 2001.


¶ 7 Sometime thereafter, although it is not clear from the record precisely when, C. and J. decided they no longer wished to adopt Precious. In a minute entry dated August 27, 2001, the court noted that Precious was free to be adopted and ordered ADES to return her to her former foster home. On September 19, the Nation filed a "Motion to Determine the Validity of the Mother's Relinquishment and Consent to Adoption of her Daughter, Precious [W.]." The Nation asked the court to determine whether the consent supported "moving forward with the adoption of Precious ... by persons other than" C. and J., stating that "[t]he mother's willingness to execute the March 16, 2001 consent was premised on the fact that [C. and J.] were to adopt Precious." The Nation suggested that the changed circumstances that C. and J. no longer wished to adopt Precious "clouded" pursuing an adoption proceeding and that "due process requires that the mother be notified of the substantial change in circumstances." The Nation urged that the court decide "whether this case should proceed to adoption on the basis of the ... consent or whether the mother should be given the opportunity to either voluntarily place Precious for adoption ... or proceed to an involuntary severance proceeding." In addition, the Nation argued, termination of Cheree's rights could not be based on § 8- 533(B)(7), which allows a court to sever parents' rights when the parents have "relinquished their rights ... to an agency or have consented to the adoption." The Nation also maintained that no other adoption could proceed based on Cheree's expressly conditioned consent.


¶ 8 In its opposition to the Nation's motion, ADES asserted that the Nation lacked standing to raise the issues and that its arguments were not supported by the applicable law. ADES insisted that Cheree had relinquished her rights to Precious and that the court had accepted that relinquishment, noting Cheree had been represented by legal counsel at the time she signed the consent and arguing she could not now challenge the severance order. Cheree joined in the Nation's motion. Precious's counsel filed a report in which she aligned herself with ADES, joining in its opposition to the Nation's motion, but did not appear in this appeal.


*3 ¶ 9 On January 11, 2002, the juvenile court denied the motion. The court reviewed the history of the case and identified the two issues that were before it: whether the Nation had standing to bring its motion and whether the court's order terminating Cheree's parental rights to Precious was valid under state and federal law. After rejecting ADES's argument that the Nation lacked standing to bring the motion, the court addressed the validity of the "relinquishment documents" and the finality of the order terminating Cheree's rights to Precious, first questioning the accuracy of the transcript of the severance hearing to the extent it conflicted with the court's recollection of what it had advised Cheree at the time she signed the consent. [FN4] The court stated that certain lines in the transcript "should reflect the same language that is contained in the relinquishment documents which is the verbatim language from 25 USC § 1913(c)."


¶ 10 The court then found it had entered a final order in April 2001 and that no party had objected to its form before it was signed. The court added:

While the ultimate plan agreed to by all of the parties, and approved by the Court, was that Precious would be adopted by [C. and J.], that was never presented as a possible reason that the mother could later set aside the severance order. Had that been the mother's intent, she should have only executed consents to adopt that could have served as the basis for an adoption pursuant to A.R.S. § 8-106 and never agreed to the termination of her parental rights pursuant to A.R.S. § 8-533(B)[7]. Due to the fact that she did, the final severance order dated April 3, 2001 remains a valid final order under state law.

The juvenile court next found that the consent satisfied the requirements of ICWA, concluding that its severance order, entered pursuant to the consent, was consistent with the applicable provisions of ICWA and that there was no basis for setting it aside because there was no evidence of fraud, duress, or undue influence.


DISCUSSION


¶ 11 Cheree and the Nation challenge on a number of grounds the juvenile court's refusal to set aside the severance order or to permit Cheree to consent to a different adoption. They claim the court erred by permitting Cheree's counsel to withdraw before the proceedings had been completed; denying her the right to revoke the consent; terminating her parental rights "without adhering to the requirements of 25 U.S.C. § 1912(e) and (f)"; and incorrectly applying 25 U.S.C. § 1913(a). Cheree argues that any ambiguity in applying ICWA must be resolved in her favor; that, under Arizona law, "a consent to adopt cannot be bifurcated to create an unconditional relinquishment of parental rights"; and, finally, that the juvenile court violated her "fundamental rights to the care, custody and control of her child." The Nation additionally claims Cheree did not consent to the unconditional termination of her parental rights; the court "overlooked the significance of [Cheree's] revocation of [the] consent"; the inaccuracy of the transcript provides sufficient ground to revoke the consent; and a juvenile court may not be a witness, which it was here on the alleged inconsistency between the transcript and what the court was certain it had told Cheree.


*4 ¶ 12 We agree with Cheree and the Nation that the juvenile court erred. As discussed below, Cheree did not unconditionally relinquish her parental rights to Precious; rather, she expressly relinquished those rights to C. and J., agreeing that her rights could be terminated so they could adopt the child. Given the clear and express terms of the consent and the applicable provision of ICWA, we conclude the juvenile court essentially terminated Cheree's rights prematurely. Once C. and J. no longer wished to adopt Precious, to the apparent surprise of all parties, what was an error in the process that would have resolved itself had that adoption taken place rendered the severance order no longer enforceable when the adoption failed.


Conditional Relinquishment of Parental Rights


[1] ¶ 13 Paragraph V of the consent states that Cheree agreed Precious "shall be placed for adoption with [C.] and [J.]," that C. and J. "shall have legal and physical custody" of her, and that Cheree "relinquish[ed her] parental rights to ... Precious." By its express terms, the consent unequivocally provided that Cheree agreed to the adoption of Precious only by C. and J. To the extent the juvenile court concluded otherwise, suggesting the consent was, in effect, a general relinquishment, we find little support for that finding in the record before us. See In re Maricopa County Juvenile Action No. JS-501568, 177 Ariz. 571, 869 P.2d 1224 (App.1994) (appellate court will uphold juvenile court order so long as findings of fact upon which it is based are not clearly erroneous).


¶ 14 Throughout the severance hearing, the juvenile court explained the consent to Jaeline's father and to Cheree, confirming that the parents were relinquishing their rights by consenting to the adoption. Thus, although this matter began as a dependency proceeding and became an involuntary severance action, it was essentially converted into a conditional, voluntary severance proceeding, as we think is contemplated by § 8-533(B)(7). The latter part of the subsection provides that a parent's rights may be severed if the "parents have relinquished their rights to a child to an agency or have consented to the adoption." § 8-533(B)(7); see also A.R.S. § 8-106 (establishing procedures for consents to adoption). Cheree did not relinquish her rights to an agency nor did she otherwise consent to the adoption of Precious as provided by A.R.S. § 8-107(D)(1) and the first part of § 8-533(B)(7). Cheree expressly consented to the adoption of Precious by specified individuals.


¶ 15 ADES points out that, at the beginning of the severance hearing, before the court began discussing the consent in more than just general terms, counsel for ADES stated, "I want it to be made very, very clear to the parents, that this will terminate their parental rights. So that if for any reason an adoption is unable to go forward with the current placement, nevertheless, this is a termination of parental rights." But that statement was not only contrary to the express terms of the written consent, it was inconsistent with the court's subsequent statements at the severance hearing when, in response to the foregoing statement by ADES's counsel, the court stated, "And just so I get this correct, ... we're dealing with an adoption by [C. and J.], correct?" Throughout the hearing, the court referred to the consent several times and asked Cheree whether she approved the specific adoption plan for Precious. That the court referred to the consent as a relinquishment in its minute entries and during the hearing did not thereby change the nature of the document from a specific consent to adoption to a general relinquishment, a relinquishment to an agency, or a consent to the adoption of Precious by anyone other than C. and J.


*5 ¶ 16 Nor did the parties' agreement at the severance hearing to amend ADES's motion to terminate Cheree's parental rights to allege severance based on § 8-533(B)(7), rather than mental illness or substance addiction and length of time in out-of-home care, establish that Cheree had unconditionally relinquished her parental rights. Subsection (B)(7), worded in the disjunctive, provides that a parent's rights may be severed if that parent has "relinquished [his or her] rights to a child to an agency or consented to the adoption." As we previously stated, not only the title of the consent but its substance make clear that Cheree's relinquishment of her rights to Precious was based on her consent to C. and J.'s adoption of the child as provided in the second part of § 8-533(B)(7).


¶ 17 Having found that Cheree consented to the severance of her rights conditioned on the adoption of Precious by specific individuals and that she did not relinquish her rights generally, we turn to the question of whether she could withdraw that consent when C. and J. chose not to adopt Precious, even though her parental rights had already been terminated. To answer this question, we examine de novo the meaning and application of the relevant provision of ICWA, 25 U.S.C. § 1913(c). See Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, ¶ 7, 7 P.3d 960, ¶ 7 (App.2000) (appellate court reviews de novo "the interpretation and application of a statute"). In order to determine the meaning of the statute, we look first to its language, ascribing "plain meaning to its terms unless they are ambiguous." In re John M., 201 Ariz. 424, ¶ 9, 36 P.3d 772, ¶ 9 (App.2001).


Indian Child Welfare Act


¶ 18 Section 1913(c) of the Act pertains to the voluntary termination of parental rights to an Indian child and states as follows:

In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.

Our Rule 82(J), Ariz. R.P. Juv. Ct., 17B A.R.S., essentially mirrors this statute. Thus, the statute and the rule contemplate that a parent's rights may be voluntarily terminated by the parent's (1) voluntary relinquishment of his or her rights, generally, or (2) by the parent's consent to the adoption of the child by a specific individual or individuals.


¶ 19 The consent here tracks the language of the statute, providing, "I further understand that I may withdraw this consent at any time before entry of a final decree of termination or adoption of ... Precious." But it is missing the language "as the case may be." The transcript of the severance hearing is, as the juvenile court and the parties have noted, somewhat inconsistent with the language of the statute and the consent; the court insisted the transcript is inaccurate because certain words the court had used were omitted. The transcript shows the judge stated to Cheree, "You understand, too, that under the Indian Child Welfare Act you can withdraw this consent at any time before the entry or the final decree of adoption." The court stated in its minute entry that the words "termination or" should have been inserted in this sentence, presumably before the word "adoption." We need not resolve this discrepancy, however, because the validity of the consent and the severance order rests upon whether the requirements of the statute have been satisfied, not whether certain words might have been omitted at the severance hearing. [FN5]


*6 [2] ¶ 20 As the statute makes clear, part of the operative language of § 1913(c) for determining when the parent of an Indian child may withdraw a consent to adoption or a relinquishment is "as the case may be." That language suggests a parent's rights may be terminated by one of two means: a termination order or an order of adoption. Thus, if the parent has signed a general relinquishment, giving up the parent's rights to an agency and freeing the child generally for adoption, the parent may withdraw the relinquishment at any time before a termination order is entered. But, if the parent has signed a consent to the adoption of a child by a specific person or persons, the parent may withdraw that consent at any time before the adoption. "[A]s the case may be" must refer to these two potential events, each with an attendant deadline for withdrawal. "[T]o read the statute [otherwise] ... would render the language 'as the case may be' entirely superfluous. Such a reading would run afoul of one of the basic rules of statutory construction: no language of a statute should be treated as surplusage or rendered nugatory." In re Kiogima, 189 Mich.App. 6, 472 N.W.2d 13, 16 (1991). Because Cheree signed a consent to adoption that provided for the adoption of her child by specified individuals, rather than releasing Precious to ADES so it could find a yet- undetermined adoptive home or generally relinquishing her rights, she could withdraw the consent at any time "prior to the entry of a final decree of ... adoption." 25 U.S.C. § 1913(c).


¶ 21 In denying the Nation's and Cheree's motion, the juvenile court relied to a large extent on the decision by the Alaska Supreme Court in In re J.R.S., 690 P.2d 10 (Alaska 1984), for the proposition that, under ICWA, a parent may not withdraw a voluntary relinquishment of his or her parental rights after a termination order has been entered. ADES relies on that case as well. But J.R.S. is distinguishable. Unlike here, the mother in that case did not relinquish her rights to particular individuals who planned to adopt her children. She signed a general relinquishment, releasing them generally and unconditionally for adoption. The mother apparently had asked the court to place her children with relatives, but nothing in the case suggests that that was a condition of the mother's relinquishment of her rights or that the relatives were even mentioned in the document. The Alaska Supreme Court held that when the placement the mother had suggested failed, she could not rely on the disjunctive provision of the statute as allowing her to change her mind because an adoption order had not been entered. She had generally relinquished her rights, and pursuant to that unconditional relinquishment, her parental rights had been terminated.


¶ 22 Similarly, in B.R.T. v. Executive Director of the Social Service Board, 391 N.W.2d 594 (N.D.1986), which ADES also cites, the court found that, because the mother had consented generally to termination of her parental rights, under ICWA, her right to withdraw the consent to termination had expired when the order terminating her parental rights became final, even though a decree of adoption had not been entered. See also Kiogima (right of Indian child's mother to withdraw general consent to termination of her parental rights expired with order terminating rights, entered at time she signed relinquishment giving up children to adoption agency, rather than with entry of later adoption order, based on ICWA's provision that consent to termination may be withdrawn at any time prior to entry of final decree of termination or adoption, "as the case may be"). But in In re Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187 (App.1981), we found the juvenile court had erred by severing an Indian mother's rights because she had revoked her general relinquishment before the severance hearing and finalization of adoption. We noted that, when an Indian child is involved, "adoption agencies and prospective adoptive parents must be held to assume the risk that a parent such as appellant might change her mind before the adoption is finalized." Id. at 207, 635 P.2d at 192.


*7 ¶ 23 Rather than support the juvenile court's decision and ADES's arguments, J.R.S., as well as Kiogima and Pima County No. S-903, supports our conclusion that, in this case, Cheree could withdraw her consent at any time before the entry of an order of adoption of Precious by C. and J. We find the following portion of the Alaska court's decision particularly instructive:

Section 1913(c) applies to two kinds of proceedings: to voluntary proceedings for termination of parental rights and to voluntary proceedings for the adoptive placement of Indian children. The consent it refers to may be one of two kinds: a consent to termination of parental rights or a consent to adoptive placement. A consent to termination may be withdrawn at any time before a final decree of termination is entered; a consent to adoption at any time before a final decree of adoption. If Congress had intended consents to termination to be revocable at any time before entry of a final decree of adoption, the words "as the case may be" would not appear in the statute.

J.R.S., 690 P.2d at 13-14. Here, "as the case may be" is a voluntary consent to the adoption of Precious by C. and J.


¶ 24 ADES additionally relies on a more recent Washington decision, In re M.D., 110 Wash.App. 524, 42 P.3d 424 (2002), to support its position that Cheree could not revoke her consent after the court severed her parental rights. In that case, the mother and the Washington social services agency challenged the trial court's order granting an Indian tribe's motion to vacate a prior court order allowing the mother to revoke her consent to the relinquishment of her parental rights. The mother sought to revoke the consent almost two years after the court had severed her parental rights. Throughout the opinion, the appellate court referred to the document the mother had signed as a consent that included both a relinquishment and a consent to adoption, making it appear that the case is similar to the one before us. At the time the mother executed the document, the parties contemplated that a relative would be adopting the child.


¶ 25 But, again, the mother in M.D. consented to the release of the child for adoption by agreeing to the child's placement with the agency for that purpose and relinquished her rights; her consent was not conditioned on the child's adoption by a specific person. The relevant provision of her consent stated:

I hereby consent to termination of my parental rights and request the Court to enter an order permanently terminating all of my parental rights to the child. I further consent to the child's adoption and also authorize the Department of Social and Health Services to consent, on my behalf, to the child's adoption.

Id. at 435. The appellate court ultimately concluded that, based on the circumstances and the language in the consent, the mother's rights could properly be terminated before the adoption, thus barring her from later revoking the consent. But the court found the consent potentially misleading on the mother's revocation rights and concluded that, if she had been misled, the mother could rescind the agreement on the ground of mutual mistake. Consequently, the court remanded the case for a determination of whether the mother had believed she could revoke the consent at any time before the child was adopted and whether she would have agreed to the severance had she known she could not revoke her consent after the termination order became final.


*8 [3] ¶ 26 The Washington Court of Appeals acknowledged that § 1913(c) establishes two kinds of proceedings for voluntary termination of parental rights, pointing to the same language we quoted above from J.R.S. But the court concluded that, if a parent executes a release of a child for adoption, it is not in the best interests of the child to permit the mother to revoke that release until the time an adoption order is entered because the process could take far too long, depriving the child of stability and finality. Perhaps such a result makes sense when a parent has released a child for adoption generally rather than to a specific individual or individuals. Such a consent falls in the category of the first kind of proceeding described in § 1913(c): a voluntary termination rather than a voluntary adoption. But a consent that specifies the adoptive parents, such as the one Cheree signed, falls into the second category of proceedings for termination under § 1913(c), and because a parent may withdraw a consent at any time before an adoption order is entered, no termination of parental rights can occur unless and until the adoption itself takes place. [FN6] Ultimately, that was the conclusion the court reached in M.D., and one of the bases for its determination that "as the case may be" for determining when the mother could revoke her consent, was before the entry of a termination order, not an order of adoption.


Res Judicata


¶ 27 Finally, we reject ADES's contention that, because Cheree did not appeal from the severance order, it became final, and the doctrine of res judicata barred her from challenging it. We review this legal question de novo. Better Homes Constr., Inc. v. Goldwater, 203 Ariz. 295, 53 P.3d 1139 (App.2002).


[4] ¶ 28 In Better Homes, Division One of this court stated:

Res judicata bars a later suit based on the same cause of action and will preclude a claim when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privies was, or might have been, determined in the former action.

203 Ariz. at ¶ 13, 49 P.3d at ¶ 13; see also Restatement (Second) of Judgments § 13 (1982) (rules of res judicata apply when final judgment is rendered). Thus, the doctrine precludes a party from collaterally attacking a final judgment in a second action. Gilbert v. Board of Med. Examiners, 155 Ariz. 169, 745 P.2d 617 (App.1987). This is true for voidable judgments, as distinguished from judgments that are void. Nesbitt v. Nesbitt, 1 Ariz.App. 293, 402 P.2d 228 (1965); see also Collins v. Sandy City Bd. of Adjustment, 52 P.3d 1267, ¶ 18 (Utah 2002) (" 'A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected by a direct review and not by bringing another action upon the same cause.' "), quoting Federated Dep'tStores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 109 (1981); National Inv. Co. v. Estate of Bronner, 146 Ariz. 138, 704 P.2d 268 (App.1985) (rejecting argument that void judgment was res judicata because no motion filed to set it aside within six months and concluding judgment was subject to attack after expiration of six-month period).


*9 [5] ¶ 29 Given our resolution of the issues above, we characterize the severance order as either premature because Cheree had the right to withdraw her consent until the order of adoption was entered or the severance order was voidable because it was contingent upon the adoption of Precious by C. and J., which never took place and apparently never will. In any event, even assuming that the order was voidable and that voidable orders may be given preclusive effect in general, it should not be given that effect here.


¶ 30 First, Cheree did not attack the order in a subsequent, collateral proceeding. Rather, after the anticipated contingency of C. and J.'s adoption of Precious did not take place, the Nation and then Cheree brought the matter to the juvenile court's attention in the same action in a motion that was, for all practical purposes, a motion for relief from the judgment, analogous to a motion pursuant to Rule 60(c), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. See In re Victor P., 190 Ariz. 354, 947 P.2d 928 (App.1997) (applying Rule 60(c) standards in determining propriety of order denying leave to file delayed appeal).


[6] ¶ 31 Second, the severance order should not be given preclusive effect under the circumstances of this case. In Smith v. CIGNA HealthPlan of Arizona, 203 Ariz. 173, ¶ 21, 52 P.3d 205, ¶ 21 (App.2002), quoting Tipler v. E.I. du Pont de Nemors & Co., 443 F.2d 125, 128 (6th Cir.1971), we noted that the doctrine of res judicata is not rigidly applied, but is " 'qualified or rejected when [its] application would contravene an overriding public policy or result in manifest injustice.' " Moreover, the doctrine was intended to be used as a shield, not a sword. Thornton v. Williams, 89 Ill.App.3d 544, 45 Ill.Dec. 24, 412 N.E.2d 157 (1980). Section 73 of the Restatement (Second) of Judgments (1982) provides:

[A] judgment may be set aside or modified if:

(1) The judgment was subject to modification by its own terms or by applicable law, and events have occurred subsequent to the judgment that warrant modification of the contemplated kind; or

(2) There has been such a substantial change in the circumstances that giving continued effect to the judgment is unjust.

Comment a of this section states that its purpose "is to change the obligation created by the judgment in response to post-judgment events that substantially alter the intended balance of benefit and burden resulting from the judgment." Arizona has adopted other provisions of the Restatement (Second) of Judgments, and we adopt this subsection as well. See Hibbs v. Calcot, Ltd., 166 Ariz. 210, 801 P.2d 445 (App.1990) (adopting Restatement (Second) of Judgments § 83(4)).


¶ 32 Although the severance order did not state it was "subject to modification," when we consider theorder in the context in which it was entered and in light of the terms of the consent on which it is based, the order at least implicitly anticipated that C. and J. would be adopting Precious. It essentially contained a condition subsequent that did not occur, implicating § 73 of the Restatement in its enforcement. See City of Tucson v. Arizona Corp. Comm'n, 1 Ariz.App. 110, 399 P.2d 913 (1965) (Corporation Commission order may require compliance with provisions of applicable statute as condition subsequent to its order granting certificate of convenience and necessity). In any event, C.'s and J.'s changing their minds, after the severance order was entered and apparently after the time for appealing from the judgment had expired, constituted a "substantial change in the circumstances." [FN7] Restatement § 73(2); see Mulkins v. Board of Supervisors, 330 N.W.2d 258 (Iowa 1983) (vacating trial court order requiring defendant to rebuild bridge on grounds of newly discovered evidence and changed circumstance that defendants had vacated roadway on which bridge was to be built). It would indeed be unjust to enforce the severance order for the reasons stated above, including, primarily, the fact that ICWA permitted Cheree to withdraw her consent until the time the adoption order was entered, a right that the severance order effectively eviscerated.


Disposition


*10 ¶ 33 We conclude that the juvenile court terminated Cheree's rights prematurely and should have done so only as part of a decree of adoption. At the very least, once it became clear that C. and J. would not be adopting Precious, the court should have permitted Cheree to withdraw the consent and granted the Nation's and Cheree's request to set aside the severance order. Having reached this conclusion, we need not address the other issues the parties have raised. The juvenile court's order of January 11, 2002, denying the Nation's motion, in which Cheree had joined, is reversed; the severance order is vacated; and this matter is remanded to the juvenile court for further proceedings.

PELANDER, P.J. and DRUKE, J. (Retired), concurring.

FN1. Appellant sought special action relief from the juvenile court's order, but this court declined to accept jurisdiction of the petition, noting that the order was appealable as a "special order made after judgment," A.R.S. § 12-2101(C); a "final order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment," A.R.S. § 12-2101(D); or simply a final order of the juvenile court, as contemplated by A.R.S. § 8-235 and Rule 88, Ariz. R.P. Juv. Ct., 17B A.R.S. This court specified, however, that Cheree could seek leave to file a delayed appeal pursuant to Rule 93(B), Ariz. R.P. Juv. Ct., which she did and which was granted. The Arizona Department of Economic Security (ADES) challenged that order by special action; we accepted jurisdiction but denied relief. Arizona Dep't of Econ. Sec. v. Campoy, Nos. 2 CA-SA 2002-0104, 2 CA-JV 2002-0069 (consolidated) (decision order filed Oct. 31, 2002).

FN2. We note that, although the order refers to the "grandmother," throughout these proceedings, both the paternal grandmother and the grandfather have been referred to as the prospective adoptive parents.

FN3. At the time of these proceedings, the subsection pertaining to out-of-home placement was A.R.S. § 8-533(B)(6). It has since been renumbered as § 8-533(B)(8). 2002 Ariz. Sess. Laws, ch. 173, § 84. Because the applicable sections of the current version are not substantially different, we refer to the current version in this opinion. Section 8-533(B)(7) is now the relinquishment provision.

FN4. The transcript shows on page 11 that, in addressing Jaeline's father generally about his relinquishment, the juvenile court had stated, "That's the big difference between this document and the State's document, that you do have the right at any time before the final termination order of adoption to ... withdraw your consent." And, on page 16, when addressing Cheree, the court had stated, "You understand, too, that under the Indian Child Welfare Act you can withdraw this consent at any time before the entry or the final decree of adoption, and, thereafter, you will not be able to withdraw, unless the consent was obtained by fraud, duress or undue influence." At the January hearing, the court said it "strongly believes that on page 11, line 15, the word 'of' which is before the word 'adoption' should be the word 'or' and that the phrase 'termination or' should have been in line 19 on page 16" after the words "decree of" and before the word "adoption."

FN5. And, as discussed below, to the extent the omitted words suggested to Cheree that she could withdraw the consent at any time before C. and J. adopted Precious, that interpretation was correct based on the language of the consent and ICWA. But the omitted words were, at best, superfluous and, at worst, misleading because they were inapplicable given that Cheree had not relinquished her rights generally or to an agency.

FN6. Our reasoning is consistent with ICWA's definition of "adoptive placement" as "the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." 25 U.S.C. § 1903(1)(iv). Thus, a parent's rights are terminated once a final order of adoption is entered, barring the parent's right to revoke a consent to adoption.

FN7. It appears that ADES served a copy of the proposed final severance order on counsel for all parties on March 26, ten days after the March 16 severance hearing. That order does not refer to Cheree's having relinquished her parental rights to Precious specifically to C. and J., although it does refer generally to the consent. No one objected to the form of order, but it is undisputed that, at that time, Cheree was no longer represented by counsel. Moreover, we question whether counsel or Cheree would have had reason to object to the order or appeal from it when it was signed because all parties at that time clearly contemplated that C. and J. would be adopting Precious.


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