(dissenting).
I agree with the majority upholding Judge Hardy’s authority to conduct the hearing. I agree that the interlocutory order was in error in purporting to sever the parental rights.
There are two minor issues, both of which I would decide favorably to the ap-pellees. In my opinion the majority has so ruled by not answering these issues. These issues are relative to the question of the service of the adoption petition upon the State Department of Public Welfare, A.R.S. § 8-105, and the question relative to the use of the adoptions examiner’s report.
In my opinion our statute (A.R.S. § 8-104) is clear. The statute does not require a finding of parental unfitness as a condition precedent to adoption when the trial judge meets the heavy responsibility in finding that adoption is to the best interest of the child. In my opinion whether a natural parent has always resisted adoption or has once consented and then withdrawn that consent is not a matter of vital significance if at the time of the hearing the natural parent is a fit parent and if, as the majority seem to hold, there can be no adoption unless two findings are made; one, that the natural parent is unfit and, two, that adoption is in the best interest, of the child. The test, in my opinion, is to be determined by the Legislature.
I disagree with the majority wherein it points out that the natural mother’s affidavit in support of her request for a free record on appeal discloses that she is no longer in prison and that this fact is not considered by the majority in this ruling. It appears to me that this disclosure in the record which does not relate to the merits of Judge Hardy’s order is the basis upon which the final ruling of the majority stands.
In my opinion the basic issues should be resolved as follows:
THE BEST INTERESTS OF THE CHILD
The appellant relies heavily upon Wes-terlund v. Croaff, 68 Ariz. 36, 198 P.2d 842 (1948) and upon Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966) in support of her position that the trial court erred in entering an interlocutory order and in finding that it was to the best interest of the minor child that the petition for adoption be granted.
A.R.S. § 8-104 is as follows:
“An order of adoption may be entered without the consent of the parent or legally appointed guardian when, after hearing, the court determines that the interests of the child will be promoted thereby. In such cases, the court shall make written findings of all facts upon which its order is founded.”
Section 1193 of the 1913 Civil Code provided in part as follows :
“The judge * * * if satisfied that the interests of the child will be promoted by the adoption, he must make an order '* * *, An adoption may be decreed without the consent of the parent, * * * where the judge considers that the interests of the child will be promoted thereby.”
The 1913 Code section was considered in the adoption of In Re Clough, 28 Ariz, 204, 236 P. 700 (1925). In Clough the *53Court stated on page 206 of 28 Ariz., page 700 of 236 P.: '
“Many, if not most, of these statutes expressly state that the consent of the parent is not necessary if the best interest of the child requires adoption, and the constitutionality of such laws has always been upheld. * * *
“Under paragraph 1193, R.S.A.1913 (Civ.Code), the consent of the parent is expressly declared not necessary if it appears to the court that the best interests of the child will he promoted thereby. We see no merit in the suggestion that the court has no jurisdiction to grant letters of adoption against the will of the parent, if it is for the best interests of the child that it be done.”
In substance the current law found in Arizona, § 8-104 (adopted in 1952) is the equivalent of the 1913 Code section.
The statutory authorization found in the current laws of Arizona and in the laws of Arizona at the time of the decision in Clough was not present at the time of the decision in Westerlund. I am unable to agree with that portion of the opinion in Luke, infra, wherein the Court on page 329 of 3 Ariz.App., page 178 of 414 P.2d cited Westerlund and stated that “such [parental] consent is a jurisdictional prerequisite to a valid adoption”.
The Arizona Supreme Court since the enactment of A.R.S. § 8-104 has upheld adoptions without parental consent where the trial court has found that the adoption was in the best interest of the child. In Anderson v. Pima County Department of Public Welfare, 77 Ariz. 339, 271 P.2d 834 (1954) the Court so held and distinguished the Westerlund case. In In Re Holman’s Adoption, 80 Ariz. 201, 295 P.2d 372 (1956) the Supreme Court upheld an adoption which was to the best interest of the child even in the face of a finding that the-natural mother and the adopting parents were fit to raise the child.
There is language in Caruso v. Superior Court in and for County of Pima, 100 Ariz. 167, 412 P.2d 463 (1966) which gives support to the appellant’s contention that before a child can be adopted that child must be found to be a dependent child within the meaning of § 15 of the Constitution and within A.R.S. § 8-201. In the more recent case of Krueger the Arizona Supreme Court upheld an adoption wherein it was found that the adoption was for the best interest of the child. In Krueger the majority of the Court upheld the adoption and Caruso was brought to their attention in the dissenting opinion. I observe also that Caruso was another instance wherein it was attempted to sever parental rights in a proceeding independent of an actual adoption proceeding.
The appellant relies on Arizona State Department of Public Welfare v. Barlow, 80 Ariz. 249, 296 P.2d 298 (1956). Barlow was a habeas corpus matter arising out of a juvenile court determination that the children in question were dependent and neglected within the meaning of A.R.S. § 8-201. The Supreme Court carefully pointed out that in the litigation no evidence was presented as to the best interest and welfare of the children.
THE CONCLUSIONS OF THE MAJORITY
I am not aware of the authority to return this matter for a continuation of the hearing which we are now reviewing. If conditions change after the entry of the interlocutory order and prior to the entry of the final decree of adoption justifying a change in the order and a denial of the adoption these could be presented to the trial court. A final decree of adoption does not follow as a matter of right after the entry of an interlocutory order. A.R. S. § 8-107, subsec. B. This rule of law is illustrated by In Re Adoption of Krueger, 7 Ariz.App. 132, 436 P.2d 910 (1968) as affirmed by the Arizona Supreme Court in the case by the same name, 104 Ariz. 26, 448 P.2d 82 (1968) wherein the contest was presented after the interlocutory decree. It is also illustrated by the case of In Re Adoption of Luke, 3 Ariz.App. 327, *54414 P.2d 176 (1966), review denied, wherein it was stated that the interlocutory decree is provisional only and the appeal arose from an order vacating the interlocutory decree, refusing the final decree of adoption which action was affirmed on appeal.
I would vacate so much of the interlocutory order as purports to sever the parental rights. I would then affirm the interlocutory order as so amended.
NOTE: Judge JAMES DUKE CAMERON having requested that he be relieved from consideration of this matter, Judge JOHN A. McGUIRE was called to sit in his stead and participate in the determination of this decision.