Adoption of Hensley, Matter of, CA

• Decision Date: 05 November 1980
• Docket Number: No. CA,CA
• Citation: Adoption of Hensley, Matter of, 607 S.W.2d 80, 270 Ark. 1004 (Ark. App. 1980)
• Parties: In the Matter of the Adoption of Thomas David HENSLEY, Lori Ann Hensley, and Carmen Dawn Hensley, Minors. Porter and Alene HENSLEY, Appellants, v. Jack WIST and Catherine Wist, Appellees. 80-258.
• Court: Arkansas Court of Appeals

Page 80

607 S.W.2d 80

270 Ark. 1004

In the Matter of the Adoption of Thomas David HENSLEY, Lori Ann Hensley, and Carmen Dawn Hensley, Minors Porter and Alene HENSLEY, Appellants, v. Jack WIST and Catherine Wist, Appellees.

No. CA 80-258.

Court of Appeals of Arkansas.

Nov. 5, 1980.

Sam Ed Gibson, P.A., Benton, for appellants.

Hall, Tucker, Lovell, Alsobrook & Moudy, Benton, for appellees.

PENIX, Judge.

Three children were born to Catherine and Arthur Hensley. The Hensleys divorced in 1976. Catherine was awarded custody of Thomas, Lori Ann and Carmen. Catherine married Jack Wist in 1977. On November 3, 1978, Arthur Hensley, the natural father of the three children, was killed. The paternal grandparents, Porter and Alene Hensley, petitioned the Chancery Court for visitation pursuant to Ark.Stat.Ann. § 57-135 on November 8, 1979. No summons was issued and no other pleadings were filed.

On February 14, 1980, Jack Wist petitioned the Probate Court to adopt Catherine's three children. The Probate Court, over the objection of the Wists' attorney, permitted the grandparents' attorney to participate during the adoption hearing to the extent of cross-examination. The Court granted the adoption March 6, 1980. The grandparents' attorney asked the Chancellor (the same person as the Probate Judge) to rule on their November 8, 1979 petition for visitation. Catherine Wist's (natural mother) motion for dismissal of the petition was granted by the Chancery Court. On March 21, 1980, the grandparents petitioned the Probate Court to set aside the adoption order. Jack Wist responded the grandparents were not parties to the adoption action, had not timely applied to intervene under Rule 24 of the Arkansas Rules of Civil Procedure and that the petition was not timely filed under Rule 59 of the Arkansas Rules of Civil Procedure and moved to strike the petition. The Probate Court dismissed the grandparents' petition. The grandparents have appealed the dismissal of the petition for visitation in Chancery and also the denial of the petition to set aside the Adoption Decree in Probate. The appeals have been consolidated.

We first turn to the issue of whether the Trial Court correctly dismissed the petition to set aside the adoption order. Ark.Stat.Ann. § 56-216 states:

Appeal and validation of adoption decree. - (a) An appeal from any final order or decree rendered under this Act may be taken in the manner and time provided for appeal from a judgment in a civil action. (b) Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued the decree cannot be questioned by any person including the petitioner, ...

This statute which is couched in negative language gives rise to a corollary. For one year following the adoption decree, the adoption may be challenged by any person with an interest. Determining whether a party has an interest which allows this challenge is a more difficult question.

The instant case is factually distinguished from Cotton v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961). In that case, the plaintiff was the paternal grandfather of two boys, aged 12 and 14 who had lived with the plaintiff and his wife for most of their lives. In October of 1959, an order of final adoption was entered which gave the two boys to the defendants, the Hamblins. At trial, the Probate Court had dismissed the petition of the paternal grandparents which challenged or sought to annul the adoption decree. In reversing the Probate Court, the Supreme Court said:

Of course, a rank outsider or mere stranger could not maintain a petition to annul an order of adoption but in the case at hand for the petition alleged that the little boys were living with petitioner who had the care and custody of the child many years before they were taken away. Thus the petitioner occupied some sort of semi loco parentis relationship to the children and are not entire strangers. A grandmother was held entitled to resist an adoption proceeding in Fries v. Phillips (189 Ark. 712, 74 S.W.2d 961). (Cite Omitted). Cotton, supra, at 111-112, 350 S.W.2d 612.

Here, the appellants never had custody of the children. There is no evidence of a "loco parentis" relationship. While the children have been spending at least one week-end per month with their grandparents, this falls short of placing them in a loco parentis relationship. Absent this interest, the appellants have no legal interest in the adoption which would permit them to challenge the adoption decree. The Probate Court properly denied their petition to set aside the adoption decree.

Turning to the appeal from Chancery regarding the dismissal of the petition for visitation, we find error and must reverse. The chancellor should have held a hearing to determine if visitation rights should be granted in this case. Whether...