A Kingman couple is fighting to keep the children they adopted in 2012.
"It's a hot mess," says Tracie Hirz, the children's foster mother.
See also: -Arizona Legislature Would Prefer You Not Be Gay if You Want to Adopt a Kid
Hirz and her husband, Jimmy Gray Schimke, legally adopted two siblings in 2012, after caring for the children since 2009.
New Times is withholding the children's names to protect their identities.
The children's biological father was incarcerated in California when the older child, a daughter, was born, records show. She is now 9 years old. He and the children's biological mother raised their daughter for the first years of her life, but they separated when the biological mother was six months pregnant with a second child. That boy, now 5, was born exposed to methamphetamine, records show.
As a result, the Arizona's Department of Economic Security took custody of the children, and they were both immediately placed in foster care in Hirz and Schimke's home. The couple has raised both children since.
The children's biological father was on parole in California--and thus unable to travel to Arizona, he says in court documents--for much of that time since the foster care placement.
He could not be reached for comment.
But the Department of Economic Security sought to reunify the children and their parents. When the children's father finally made it back to Arizona, he was given weeky visitation rights. Hirz says she made it clear in person and in the courtroom that she was willing to keep the lines of communication with him open, allowing him to be in the children's lives. But Hirz and her husband wanted to legally adopt the children. So in 2010, they petitioned the court to sever the parental rights of both biological parents.
During the 2011 Mohave County court proceedings, the court determined that the children's biological mother had accepted the allegations against her when she failed to show up on the second day of trial.
The biological father, on the other hand, came to court and fought against having his parental rights severed. After five days of trial, his rights were also terminated, with the court finding that the children had been out of his care for more than 15 months, a legal minimum, and that he had abandoned them. Court records note that Hirz and Schimke had parented the girl child for more than two years, and that they had "served as the only parental figures" in the life of the boy.
The court's decision cleared the way for the Hirz and Schimke to adopt the children, which they did in 2012. They legally changed the children's names, court records show, and the order of adoption bestows on Hirz and Schimke "all the legal rights, privileges, duties, obligations, and other legal consequences of the natural relationship of child and parent."
But the children's biological father appealed the court's ruling that severed his parental rights. He argued that Hirz and Schimke didn't have the right to intervene in the case as they did, and that they'd brought up the idea that he'd abandoned his children late on the fourth day of a five-day trial, preventing him from properly preparing a defense.
In 2013, an appellate court agreed with him, overturning the lower court's decision to terminate his rights. "The evidence was insufficient to support termination," the court ruled.
"In any severance proceeding, the material issue facing the court is whether a parent has the ability to properly parent his/her child; it is irrelevant whether a child has a stronger attachment to their foster parents, whether foster parents are more 'nurturing,' or whether foster parents might be more capable or better parents than a natural parent," the ruling says.
The court agreed with the biological father on the issues he'd raised in the appeal, and found that he was taking steps to be able to parent his children. He had rented a home in Arizona, found a job, maintained sobriety for over a year, and was contributing financially when he could, the court found. "The record does not support the trial court's finding that the Father lacked the capacity to properly and effectively parent the Children in the near future," the decision says.
Hirz and her husband petitioned for emergency guardianship of the children, won it, and were able to keep the children in their home.
But now, all parties are stuck in a kind of legal limbo. The children's biological father has his parental rights back--meaning the children's adoption is at least temporarily overturned. Hirz and Schimke, who have now raised the children for over five years, are back to being foster parents. It's unclear whether the biological father will continue to get legal visits, and whether his rights may be terminated again in the future, allowing the foster parents to readopt the children.
Either way, Hirz is concerned about the length of time additional proceedings will take.
Both sides have sought clarification on what the appellate court's decision really means, and both are moving forward with preparing for continued litigation. No new hearings have been scheduled at this time.
No matter what happens, Hirz is worried about the effect this all has on the children. "These children need a home," she says.
Got a tip? Send it to: Ashley Cusick.
Follow Valley Fever on Twitter at @ValleyFeverPHX. Follow Ashley Cusick on Twitter at @AshleyBCusick.
