In re J. M. S.

327 Or.App. 275

534 P.3d 283

In the MATTER OF the ADOPTION OF J. M. S., a Child.

D. S., Petitioner-Appellant.

A176866

Court of Appeals of Oregon.

Submitted February 10, 2022.

July 26, 2023

Cyril Rivera Neeley filed the brief for appellant.

Before Ortega, Presiding Judge, and Lagesen, Chief Judge, and Powers, Judge.

POWERS, J.

In this adoption proceeding, mother appeals from a judgment dismissing a petition for adoption of her birth daughter, J, by her husband, J's stepfather, who died during the pendency of this action. Mother and stepfather filed a joint petition for stepfather to adopt J, but stepfather died unexpectedly before the adoption was finalized. The trial court dismissed the uncontested petition because of stepfather's death. On appeal, mother assigns error to the trial court's dismissal of the petition and asks that we enter a judgment for a posthumous adoption because the adoption is in J's best interest. As explained below, the trial court erred in dismissing the petition because the dismissal prevented mother from moving for substitution as stepfather's personal representative and continuing the action in that capacity. Accordingly, we reverse and remand.

The uncontested facts are mainly procedural. Mother and stepfather filed an unopposed joint petition for stepfather to adopt J, his stepdaughter and mother's birth daughter.¹ Days after the petition was filed, however, stepfather suddenly died of colon cancer before the trial court acted on the petition. Mother alerted the Department of Human Services (DHS) of the petition for adoption and stepfather's death, and DHS notified the court and deferred any decisions regarding finalization of the adoption to the court. See ORS 109.285(5)(a) (requiring that a petitioner serve copies of the petition for adoption upon the DHS director); ORS 109.276(8)(a)(A) (requiring DHS to "investigate and file for the consideration of the judge before whom the petition for adoption is pending a placement report containing information regarding the status of the child and evidence concerning the suitability of the proposed adoption"). Mother subsequently filed a motion to enter judgment for the adoption of J notwithstanding stepfather's untimely death. In her declaration in support of the motion, mother provided information as to the emotional and financial benefits that granting the adoption would provide to J, a letter from J's therapist, and a letter from stepfather's parents in support of granting the posthumous adoption. Mother also stated that she was "the representative for [stepfather's] estate and he ha[d] no possessions or assets to probate." Mother did not formally make a motion under ORCP 34 for substitution as stepfather's personal representative; however, she submitted a proposed order to the trial court that included an option for the court to appoint mother as stepfather's personal representative. The court denied mother's motion for entry of judgment and implicitly rejected the option to appoint her as a personal representative. Shortly thereafter, the court entered a general judgment of dismissal that concluded: "Based on the fact that [stepfather] passed away on 03/28/2021, the court orders this case dismissed." Mother timely appeals.

On appeal, mother appears to presume that she is a proper party and that the petition continues despite stepfather's death. She urges us to hold that trial courts have the authority to grant posthumous and equitable adoptions because doing so is in the best interests of the child. Despite raising the issue in the proposed order to the trial court, she does not address substitution as a personal representative or whether the petition "survives or continues" under ORCP 34 and proceeds directly to her argument that posthumous and equitable adoptions are in the best interests of the child.

As an initial matter, because mother has not been substituted as the personal representative for stepfather's estate, we consider the question of whether we have jurisdiction to hear mother's appeal. See Varde v. Run! Day Camp for Dogs, LLC , 309 Or App 387, 390, 482 P3d 795 (2021) (noting our independent obligation to consider jurisdictional issues). Stepfather's death occurred before entry of a final order or judgment and before mother's initiation of this appeal. Generally, when a party dies before the entry of a final order and before an appeal is taken, the appellate courts have no jurisdiction of the estate and its personal representative unless a personal representative is substituted as a party and receives notice of the substitution.

Bisbee v. Mallicott , 293 Or 797, 799, 653 P2d 239 (1982) ; see generally Ramirez v. Lembcke , 191 Or App 70, 76, 80 P3d 510 (2003) (explaining that "an action cannot be maintained against a deceased person"); Worthington v. Estate of Milton E. Davis , 250 Or App 755, 764, 282 P3d 895, rev den , 352 Or 565, 291 P.3d 737 (2012) (explaining the differences between a decedent and the personal representative of a decedent's estate). ORCP 34 provides an exception to the general rule; however, mother has not been substituted as the personal representative for stepfather's estate. As explained more thoroughly below, because the answer to the jurisdictional question is intertwined with whether the adoption petition "survives or continues" as provided by ORCP 34, we turn to that issue.

ORCP 34 governs whether an action abates upon the death of a party or whether a deceased party's personal representative may continue the action. It provides, in part:

"A Nonabatement of action by death, disability, or transfer. No action shall abate by the death or disability of a party, or by the transfer of any interest therein, if the claim survives or continues.

"B Death of a party; continued proceedings. In case of the death of a party, the court shall, on motion, allow the action to be continued:

"B(1) By such party's personal representative or successors in interest at any time within one year after such party's death[.]

"* * * * *

"G Procedure. The motion for substitution may be made by any party, or by the successors in interest or representatives of the deceased party or the party with a disability, or the successors in interest of the transferor and shall be served on the parties as provided in Rule 9 and upon persons not parties in the manner provided in Rule 7 for the service of a summons."

(Boldface omitted.)

As the text of ORCP 34 provides, an action does not abate upon the death of a party "if the claim survives or continues." Importantly, ORCP 34 A relates only to the procedural question of abatement and incorporates relevant substantive law to determine if the claim survives or continues. See Council on Court Procedures, Staff Comment to Rule 34, reprinted in Frederic R. Merrill, Oregon Rules of Civil Procedure: A Handbook 72 (1981) ("The words, ‘if the claim survives or continues,’ were added to the first sentence of section 34 A. to make clear that this rule relates only to the procedural question of abatement of the action."). Thus, we look to the "relevant substantive law" to determine if a cause of action survives or continues despite the death of a party. See, e.g. , Nationstar Mortgage, LLC v. Hinkle , 321 Or App 300, 307, 516 P3d 718 (2022) (so stating).

Under some circumstances, the legislature has directly addressed the possibility of the death of a party within the statutory framework. See, e.g. , ORS 30.075(1) ;² ORS 115.305.³ In the absence of a statute or case law addressing whether a claim or action survives or continues, we have looked to persuasive authority from other jurisdictions when it is useful to our analysis to do so. See, e.g. , Drucker v. Drucker , 7 Or App 85, 86, 488 P2d 1377, rev den (1971) (considering the weight of authority from other jurisdictions in determining whether the court retained jurisdiction to award attorney fees after the death of one spouse abated divorce proceedings).⁴ Similarly, the Supreme Court has considered cases from other jurisdictions when determining whether the right to alimony survives the death of a party. Shields v. Bosch, Executor , 190 Or 155, 158-59, 224 P2d 560 (1950) (citing Lemp v. Lemp , 62 Nev 91, 141 P2d 212 (1943), for the proposition that "the right to alimony is strictly a personal right as distinguished from a property right, and a cause of suit therefor does not survive to the personal representatives of a deceased person; death terminates the right" and citing Mignot v. Mignot , 187 Or 142, 147, 210 P2d 111 (1949), for the proposition that some alimony awards may be property rights that do not abate upon a party's death).

The statutory framework governing adoption petitions yields no textual or contextual clues as to the legislature's intent on whether a petition for adoption survives or continues despite the death or disability of a party petitioning to adopt a child. See generally ORS 109.266 - 109.410. The legislature has, however, made clear that the statutory framework focuses on the child, and in particular, the child's best interests. See ORS 109.350(1). We also are not aware of any other statutes or Oregon case law that either allows or precludes the adoption petition's survival or continuation as provided by ORCP 34. We thus proceed to examine persuasive authority from other jurisdictions because we find it useful to our determination of whether an action for adoption survives or continues when a party petitioning to adopt the child has died.

A number of other jurisdictions have addressed the related questions of whether an adoption proceeding continues or survives despite the death of a prospective adoptive parent or adoptee, whether posthumous adoptions are permissible, and whether proceedings to vacate adoptions abate upon the death of an adoptive parent. On the one hand, some jurisdictions either prohibit posthumous adoption outright, abate adoption proceedings upon the death of a prospective parent or adoptee, abate...