D. S.

                                      275

      Submitted February 10, 2022, reversed and remanded July 26, 2023


             In the Matter of the Adoption of J. M. S.,
                             a Child.
                               D. S.,
                      Petitioner-Appellant.
                  Jackson County Circuit Court
                      21AP00348; A176866
                                  

    Mother appeals from a judgment dismissing a petition for adoption of her
birth daughter by her husband, child’s stepfather, who died unexpectedly before
the adoption was finalized. The trial court dismissed the uncontested petition
because of stepfather’s death. Mother assigns error to the trial court’s dismissal
of the petition and urges entry of a judgment for posthumous adoption because
the adoption is in child’s best interest. Held: ORCP 34 applies to adoption petitions, and accordingly, when a petitioner dies, the court shall, on motion, allow
the action to be continued by the party’s personal representative or successors in
interest. 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.
    Reversed and remanded.



    Benjamin M. Bloom, Judge.
    Cyril Rivera Neeley filed the brief for appellant.
  Before Ortega, Presiding Judge, and Lagesen, Chief
Judge, and Powers, Judge.
    POWERS, J.
    Reversed and remanded.
276                                                                       D. S.

           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

    1
      Although mother joined the petition, it is not clear that she was a proper
party to the petition. See ORS 109.041(2) (“When a person has been or shall be
adopted in this state by a stepparent, this section shall leave unchanged the
relationship, rights and obligations between such adopted person and … natural parent of the adopted person, who is the spouse of the person who adopted
the person ….”). We need not address that issue, however, because mother could
be substituted as stepfather’s personal representative as explained more fully
below.
Cite as 

 (2023)                             277

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, 

, 

(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.
278                                                           D. S.

Bisbee v. Mallicott, 

, 

 (1982); see
generally Ramirez v. Lembcke, 

, 

 (2003) (explaining that “an action cannot be maintained
against a deceased person”); Worthington v. Estate of Milton
E. Davis, 

, 

, rev den, 

 (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
Cite as 

 (2023)                                                  279

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, 

, 

 (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, 

, 

, 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
    2
      ORS 30.075(1) provides:
         “Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured
    person, and the personal representatives of the decedent may maintain an
    action against the wrongdoer, if the decedent might have maintained an
    action, had the decedent lived, against the wrongdoer for an injury done by
    the same act or omission. The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by
    the personal representatives under this section, or within three years by the
    personal representatives if not commenced prior to death.”
    3
      ORS 115.305 provides:
         “All causes of action or suit, by one person against another, survive to the
    personal representative of the former and against the personal representative of the latter.”
    4
      In Drucker, we cited authority from other jurisdictions in support of our
conclusion that the death of a spouse abates divorce proceedings in which no
decree has been entered. 

 (“By the weight of authority in most
jurisdictions, upon the death of one of the parties divorce proceedings are abated
if no decree has been entered.”). Then, in the absence of any Oregon statute or
case to the contrary, we again looked to useful authority from other jurisdictions
in support of our conclusion that the court did not retain jurisdiction to award
attorney fees after the spouse’s death, i.e., the proceeding to award attorneys’ fees
280                                                                       D. S.

considered cases from other jurisdictions when determining
whether the right to alimony survives the death of a party.
Shields v. Bosch, Executor, 

, 

(1950) (citing Lemp v. Lemp, 62 Nev 91, 

 (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, 

, 

(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 proceedings to vacate
adoptions upon the death of the adoptive parent, or some

abated. Id. at 90 (“We are not unaware that the cases cited are from other states
and based on other statutes. However, we do not find language in the Oregon
statutes or cases which suggest that a court, in a situation such as we have here,
may retain jurisdiction after abatement.”).
Cite as 

 (2023)                                                     281

combination thereof.5 On the other hand, other jurisdictions
have concluded that a prospective adoptive parent’s death
does not abate the adoption proceeding and that the adoption proceeding may be continued such that the court has an
opportunity to evaluate the petition and grant the adoption
if the court finds that doing so is in the best interest of the
child. See, e.g., In re W. R. ex rel S. W., 412 NJ Super 275,
277, 

 (2009) (applying NJ Stat Ann § 9:3-
50(b) (1994) and concluding that an adoption can be granted
nunc pro tunc, effective the date of the filing of the complaint
for adoption, when the adoptive parent has died prior to the
final adoption hearing); Haw Rev Stat Ann § 578-11 (1976).6
Ultimately, we conclude that the examples from the latter
jurisdictions are more persuasive because they allow an
opportunity for the court to reach the question of what is in
the child’s best interest.
         Although we acknowledge that adoption is “purely a
creation of statute,” W. E. F. v. C. L. M., 

,

 (2009), and that Oregon lacks the same express
statutory authority that grounds the approach of the jurisdictions that allow adoption proceedings to continue despite
the death of a prospective adoptive parent, we conclude that
an adoption petition “survives or continues” under ORCP 34.
That conclusion effectuates what we have recognized as
the “primary purpose” of an adoption proceeding: “the

    5
      See, e.g., Ariz Rev Stat Ann § 8-119 (1970); In re Adoption of A. R., 241 Ariz
356, 358, 

 (Ariz Ct App 2016) (interpreting Ariz Rev Stat
Ann § 8-119 (1970), as not allowing posthumous adoption); Jahnke v. Jahnke, 

 (Iowa 1994) (analogizing between the personal nature of adoption
and marriage dissolution and concluding that a proceeding to vacate an adoption
abates upon the death of an adoptive parent); Johnson by Johnson v. Wilbourn,

 (Tenn Ct App 1989) (concluding that adoption statute does
not permit the survival of an adoption proceeding after the death of the prospective parent or authorize a posthumous order approving an adoption); Korbin v.
Ginsberg, 232 So 2d 417, 418 (Fla Dist Ct App 1970) (“It is a personal relationship
created between one capable of adopting and one capable of being adopted, and
it necessarily requires that both the adopting parent and the adopted child be
living at the time such relationship comes into being by judicial decree.”).
    6
      Haw Rev Stat Ann § 578-11 (1976) provides:
    “Notwithstanding the death of a petitioner or the petitioners during the pendency of the petition, the court, if it finds that the best interests of the individual to be adopted will be served thereby, and, in the case of a surviving
    petitioner, that such petitioner so desires, may enter a decree of adoption as
    prayed for in the petition, effective as of the date of the filing of the petition.”
282                                                                          D. S.

protection and promotion of a child’s best interest.” F. v. C.,

, 

, cert den, 

(1976) (internal quotation marks omitted). That is, an adoption proceeding that continues despite the petitioner’s death
allows for another party to move for substitution as a personal representative and continue the petition in that capacity, ultimately allowing the court the opportunity to determine if adoption is in the child’s best interest. Although the
text of ORS 109.350(1), which outlines when a judgment of
adoption is proper, refers to the petitioner in the present
tense, which necessarily assumes that the petitioner is alive
at the time of adoption, there is nothing in the text or context of the statutory framework that affirmatively prohibits
posthumous adoption.7 See also ORS 109.268(1) (“The rule
that statutes in derogation of common law are to be strictly
construed does not apply to the adoption laws of this state.”).
Accordingly, we conclude that an adoption proceeding survives or continues despite the death of a petitioner seeking
to adopt because doing so effectuates the primary purpose
of an adoption proceeding: the protection and promotion of
the child’s best interest.
          Therefore, we proceed from an understanding that a
petition for adoption survives or continues despite the death
or disability of the party petitioning for adoption. As applicable here, when a party who petitioned to adopt a child died
before that petition has been resolved, the relevant provisions of ORCP 34 apply. That is, as provided by ORCP 34 G,
the court shall allow “any party, or … the successors in
interest or representatives of the deceased party or the
party with a disability” to move for substitution and then,
consistent with ORCP 34 B, “on motion, allow the action to
be continued … [b]y such party’s personal representative
… at any time within one year after such party’s death.”

   7
     ORS 109.350(1) provides:
        “If, upon a petition for adoption or readoption duly presented and consented to, the court is satisfied as to the identity and relations of the persons,
   that the petitioner is of sufficient ability to bring up the child and furnish
   suitable nurture and education, having reference to the degree and condition
   of the parents, and that it is fit and proper that such adoption or readoption
   be effected, a judgment shall be made setting forth the facts, and ordering
   that from the date of the judgment the child, to all legal intents and purposes, is the child of the petitioner.”
Cite as 

 (2023)                             283

         Having resolved that ORCP 34 applies to adoption proceedings, we return to the jurisdictional question.
In considering that question, we examine two informative
cases: Bisbee and Castro v. Ogburn, 

, 

 (1996). As noted above, Bisbee explained the general
rule that when a party dies before the entry of a final order
and before an appeal is taken, an appellate court does not
have jurisdiction over the estate and its personal representative unless a personal representative is substituted as a
party and receives notice of the substitution. See Bisbee, 

. In Castro, however, we explained that an appellate court has jurisdiction to review whether the trial court
erred in denying a party the opportunity to substitute a personal representative and subsequently dismissing a case for
failure to timely substitute a personal representative.
         In Castro, the plaintiff brought a suit against the
defendant, Ogburn, who died shortly after the action was
commenced. 

. A personal representative
for Ogburn was appointed, but not substituted in the suit.

. Nevertheless, the personal representative participated in the suit, which proceeded to trial. 

.
On the morning of trial, more than a year after Ogburn’s
death, the personal representative moved to dismiss the
case because the plaintiff had not timely moved to substitute the personal representative as a party. 

. The
trial court allowed the plaintiff to brief the issue, and the
plaintiff filed a memorandum and a motion to allow her to
amend the complaint to name the personal representative
as a party and to allege his timely substitution. 

 The trial
court apparently did not rule on the plaintiff’s motion to
amend the complaint; instead, the court granted the personal representative’s motion to dismiss for failure to timely
substitute a personal representative and dismissed the case
with prejudice. 

 The plaintiff appealed, and we reversed.
         On appeal, the personal representative relied on
Bisbee to argue that this court lacked jurisdiction to hear
the appeal because Ogburn had died and the personal representative had not been substituted within a year of Ogburn’s
death. 

 We rejected that jurisdictional argument, reasoning that, since the period for timely substitution had passed,
there would be no procedure for the plaintiff to challenge
284                                                     D. S.

the trial court’s ruling—which denied the plaintiff the
opportunity to amend her complaint to substitute the personal representative for Ogburn—if this court lacked jurisdiction to consider that ruling. 

. In so concluding,
we relied on Mendez v. Walker, 

, 

(1975), as an example of an appellate court having jurisdiction “to decide whether the trial court had erred in denying
the plaintiff’s motion to substitute the personal representative of the defendant’s estate as defendant.” Castro, 

. On that basis, we concluded that we had jurisdiction to decide the issue of whether the trial court erred
in dismissing the action on the basis that the plaintiff had
not substituted Ogburn’s personal representative despite
that personal representative’s voluntary appearance in the
action. 

 We further concluded that Ogburn’s personal representative “had made himself the party defendant and, by
doing so, has waived the limitation on the time within which
he could be substituted as the defendant and has waived any
claim that the court lacks jurisdiction over him.” 

 at 129-
30. Finally, we reversed and remanded for the parties and
the trial court to decide who should be named as Ogburn’s
personal representative. 

.
         This case presents a similar situation to Castro.
Although it appears at first blush that, consistent with
Bisbee, we do not have jurisdiction to hear mother’s appeal
because she has not been substituted as stepfather’s personal representative, this case is more akin to Castro, in
which the trial court’s ruling deprived mother of the opportunity to move for substitution. Given that the period for
timely substitution has passed, if we lack jurisdiction to
consider whether the trial court erred when it dismissed
the case and therein effectively denied mother the opportunity to move for substitution as a personal representative for stepfather, then mother will have no procedure to
challenge the trial court’s judgment. That is the very result
we rejected in Castro. 

 (“[T]here would be no procedure for plaintiff to challenge that ruling if this court
lacked jurisdiction to consider it.”). Moreover, such a situation would place mother into a catch-22 by requiring that
mother be substituted as stepfather’s personal representative in order to appeal the very judgment that denied her
Cite as 

 (2023)                              285

the opportunity to move for substitution, i.e., that prevented
her from being substituted as stepfather’s personal representative. To avoid that situation, and consistently with our
analysis in Castro, we conclude that we have jurisdiction at
least to consider if the trial court erred in dismissing the
case and therein denying mother the opportunity to move
for substitution. Cf. Trotts and Trotts, 

, 717
n 2, 

 (2000) (explaining that, in a divorce action,
the trial court effectively denied the personal representatives’ motion for substitution pursuant to ORCP 34 when
it entered a judgment dismissing the dissolution action
without ruling on that motion for substitution and that that
denial was appealable).
          In summary, ORCP 34 applies to adoption petitions.
When a petitioner dies, pursuant to ORCP 34, the court shall,
on motion, allow the action to be continued by the party’s
personal representative or successors in interest. That is, the
adoption petition does not automatically abate. Because the
trial court dismissed the petition, thereby depriving mother
of the opportunity to be substituted as personal representative of stepfather’s estate, the trial court erred. Accordingly,
we reverse and remand to allow mother the opportunity to
move for substitution as allowed by ORCP 34.
         On remand, the trial court will be able to determine whether mother (or any other party consistent with
ORCP 34) can be substituted as stepfather’s personal representative, and the trial court—assuming that the party is
granted substitution—will be able to reach the merits of the
petition to evaluate whether the proposed adoption meets
the requirements set out in ORS 109.350. That is, the trial
court will be able to effectuate what we have recognized and
reaffirm as the primary purpose of an adoption proceeding:
the protection and promotion of the child’s best interest. The
prospective adoption, in our view, is about the bond that J
and stepfather had and about the potential for J to be recognized in the eyes of the law as part of stepfather’s family,
which lasts beyond his untimely death.
        Reversed and remanded.