Grandparent Visitation Rights After Adoption

Arizona's Adoption Statute and A.R.S. Section 25-409(F): We begin our analysis with two principles in mind. First, adoption is a statutorily created concept, one that was unknown at common law. In re Estate of Ryan, 187 Ariz. 311, 312, 928 P.2d 735, 736 (App. 1996); Pima County Juv. Action No. B-7087, 118 Ariz. 437, 438, 577 P.2d 723, 724 (App. 1977), aff'd, 118 Ariz. 428, 577 P.2d 714 (1978). Second, because adoption is "a statutory creation entirely subject to legislation," it is within the legislature's power to "define and regulate adoption." Estate of Ryan, 187 Ariz. at 312, 928 P.2d at 736. Section 8-117 defines the legal relationship between parents and child upon the entry of an order of adoption. After adoption, the relationship between the adopted child and the new parents is the same "as though the child were born to the adoptive parent in lawful wedlock." A.R.S. 8-117(A). Therefore, the adopted child can inherit property from the child's new parents, and the new parents can inherit property from the adopted child. Id. The relationship between the adopted child and the persons who were his parents before the decree of adoption is severed, and all "legal consequences of the relationship cease to exist, including the right of inheritance." Id. at (B). Under A.R.S. section 25-409(F), visitation granted to grandparents or great-grandparents "automatically terminates if the child has been adopted or placed for adoption." But, the legislature included a specific exception for "the adoption of the child by the spouse of a natural parent if the natural parent remarries. When enacted in 1983, the grandparent visitation statute was codified at A.R.S. section 25-337.01 and subsection (D) provided: "all visitation rights granted under this section automatically terminate if the child has been adopted or placed for adoption. . . ." 1983 Ariz. Sess. Laws, ch. 109, 1. This subsection was challenged in In re Marriage of Herreras, 159 Ariz. 511, 768 P.2d 673 (App. 1989), after a grandmother's visitation was automatically terminated following the adoption of her grandchildren by their father's new wife. In affirming, this court found that the legislature had clearly provided for termination of grandparent visitation upon adoption, concluding that "public policy requires recognition that an adoption decree creates a set of new relationships with the adoptive parents and that old ties must be broken." Id. at 512, 768 P.2d at 674 (citing Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (Kan. 1974)). In apparent response to Browning, the Kansas legislature in 1984 amended its grandparent visitation statute to provide that adoption of a child by the spouse of a surviving parent would not defeat the biological grandparent's visitation rights. See Sowers v. Tsamolias, 262 Kan. 717, 941 P.2d 949, 951 (Kan. 1997). In 1992, the legislature amended A.R.S. section 25- 337.01(D) to add the last sentence, exempting from the provisions of that subsection cases in which the child is adopted by the spouse of the natural parent. 1992 Ariz. Sess. Laws, ch. 139, 1. We presume that in so doing, the legislature was aware of our prior interpretation of A.R.S. section 25-337.01(D). See, e.g., Wareing v. Falk, 182 Ariz. 495, 500, 897 P.2d 1381, 1386 (App. 1995) (noting that it is well settled that the legislature is presumed to know existing law when it enacts a statute). We also presume that this amendment was intended to specifically address our interpretation and, in effect, legislatively overrule it. See McCandless v. United S. Assurance Co., 191 Ariz. 167, 174, 953 P.2d 911, 918 (App. 1997) (stating that when the legislature amends an existing statute, the court presumes the legislature intended some change in existing law). Because it is within the legislature's power to define the status of children vis-a-vis their biological and adoptive families, see Estate of Ryan, 187 Ariz. at 313, 928 P.2d at 737, we conclude that the last sentence of A.R.S. section 25-409(F) supersedes the policy expressed in A.R.S. section 8-117(A) as it relates to grandparent visitation when a stepparent adopts the child of the natural parent.