534 P.2d 434 | Ariz. Ct. App. | 1975
OPINION
This is an appeal by the Maricopa County Attorney from the action of the juvenile
It appears inferentially from other parts of the minute entry, and from the appellant’s memorandum, that the statute actually relied on by the trial court was § 14— 5104 (Supp.1974), as there is no § 14-4104. Section 14 — 5104 provides as follows:
“A parent or a guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six months, any powers he may have regarding care, custody or property of the minor child or ward, except power to consent to marriage or adoption of the minor.”
Such a power of attorney was executed by the mother of the children in favor of the respondents on September 30, 1974, and was filed by the respondents at the hearing. Apparently the trial court ruled that A.R.S. § 14-5104 repealed A.R.S. § 8-108B because of what it believed to be a conflict between the two statutes. The minute entry order is not that specific, but appellant’s memorandum recites this as the basis for the trial court’s order.
As the respondents (who would be the appellees herein) have made no appearance in this court and filed no responsive memorandum, the rule of confession of error applies if a debatable issue is raised. Cf. In re Maricopa County, Juvenile Action No. J-74449A, 20 Ariz.App. 249, 511 P.2d 693 (1973). In our opinion debatable issues have been raised herein, and the order of the trial court may be reversed on the basis of confession of error alone. Verdex Steel & Const. Co. v. Board of Supervisors, 19 Ariz.App. 547, 509 P.2d 240 (1973). See also Welch v. Superior Court, 21 Ariz.App. 131, 516 P.2d 587 (1974) and cases cited therein.
Nevertheless, we will briefly consider the merits. In our opinion, there is no conflict and in fact no relation between A.R.S. §§ 8-108 and 14-5104. A.R.S. § 8-108 concerns pre-adoption custody and deals with a situation where an uncertified
The order of the juvenile court dated October 1, 1974, quashing the order to show cause previously issued, is reversed; and that court is directed to proceed with the hearing required by A.R.S. § 8-108B.
. A.R.S. § 8-108 provides in part:
“A. A person who is not currently certified as acceptable to adopt but who has custody of a child which the person intends to adopt shall petition the court for an order permitting such person to keep custody of the child pending such certification. Such petition shall be filed no later than five days after such person obtains custody of the child. Upon the filing of such a petition the court shall hold a hearing within ten days thereafter. At the hearing the burden of proof shall be on the petitioner to show that permitting such custody will be in the best interests of the child. The court may permit such custody or it may order that custody be given to some other person or agency as it deems to be in the best interests of the child. If the court permits the person to continue to have custody of the child, the court should cause to be continued the investigation for preadoption certification and report as required by § 8-105.
“B. If no such petition is filed by the person intending to adopt a child, the division, an agency or any other interested person may petition the court for such a hearing. On the filing of such a petition the court shall set the matter for hearing and issue its order to the person having custody of the child to appear before it to show cause why such custody should not be denied. The hearing shall then be held and the court’s order made as provided in subsection A of this section.”