Adoption of K.F.H., In re

• Decision Date: 11 January 1993
• Docket Number: No. 92-183,92-183
• Parties: In re ADOPTION OF K.F.H. and K.F.H.
• Court: Arkansas Supreme Court

Page 343

844 S.W.2d 343

311 Ark. 416

In re ADOPTION OF K.F.H. and K.F.H.

No. 92-183.

Supreme Court of Arkansas.

Jan. 11, 1993.

Lisa J. Vogler, Birmingham, MI, Todd Williams, Jonesboro, for appellant.

Kathleen C. Boyle, Lansing, MI, Robert S. Shafer, Little Rock, for appellee.

BROWN, Justice.

This case involves the adoption of two children, K.F.H. and K.F.H., without the consent of their natural mother, the appellant. The probate judge granted the adoption and terminated the parental rights of the appellant. The appellant raises three points on appeal. The points raised are without merit, and we affirm the judgment of the probate judge.

There are two appellees, the natural father and his wife, the adoptive mother. The natural father, who lives in Jonesboro, hired a Michigan lawyer to locate a surrogate mother to bear him a child. He was then put in contact with the appellant. On February 17, 1986, the appellant contracted with the natural father to be artificially inseminated with his sperm and to bear him a child whom he and his wife, would subsequently adopt. In June of 1986, the appellant became pregnant but miscarried. Afterwards, she was artificially inseminated numerous times in December 1986 and January 1987 with the appellee's sperm and became pregnant again in January of 1987, this time with twins.

During the pregnancy, the appellant decided that she wanted to keep the children she was carrying and filed a complaint in Michigan on August 19, 1987, to void the surrogate parenting contract as contrary to public policy. The appellees then filed a complaint, also in Michigan, asserting that one of the appellees was the natural father of the children and praying for their adoption by the other appellee in accordance with the agreement. Twins, K.F.H. and K.F.H., were born to the appellant on September 4, 1987, in Michigan.

On April 21, 1988, an order was entered by the Michigan circuit court voiding the surrogate parenting contract on public policy grounds. A second order was entered, also on April 21, 1988, stating that the natural father would have legal and physical custody of the twins, that the appellant would be permitted visitation, that the appellant must pay $28.00 per week for child support which the court abated in light of her anticipated visitation expenses, and that the appellees must send the appellant periodic reports on the children.

The appellant moved from Michigan to Ohio sometime in April of 1990. On September 18, 1990, jurisdiction of this matter was transferred from the Michigan circuit court to the Craighead County Chancery Court. On November 1, 1990, the appellees filed a petition in the Craighead County Probate Court for the wife of the natural father to adopt the twins. In that petition, they contended that one of the appellees was the biological father and that the appellant's consent was not required because she had failed, without justifiable cause, to communicate with the children for at least a year. On July 19, 1991, the probate judge granted the petition for adoption and found that the appellant's consent was not required due to failure to communicate with her children as alleged. He further found that it was in the children's best interest that the natural father's wife adopt them.

I. CHOICE OF LAW

Under Arkansas law, parental consent is not required of the non-custodial parent if that parent fails significantly and without justifiable cause to communicate with the child for a period of at least one year. Ark.Code Ann. § 9-9-207(a)(2) (1987).

The appellant first contends that because this case originated in Michigan that state's laws applied up to the point when jurisdiction of the case was transferred to Arkansas on September 18, 1990. Michigan statutory law provided at the time that the consent of a non-custodial parent could be waived if the non-custodial parent had failed or neglected to provide regular and substantial support for a period of two years, or had the ability to but failed to regularly or substantially communicate with the child for a period of two years. According to the appellant, Arkansas's one-year requirement could only apply for the period accruing after the case was transferred to this state on September 18, 1990.

The focal point for this issue is the date when the adoption petition was filed--November 1, 1990. By that date, the Craighead County Probate Court clearly had jurisdiction of the cause. We have held that the one-year period after which a parent may lose the right to consent must accrue before filing the adoption petition and that the filing of the petition is the cutoff date. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). We have further held that the one-year requirement applies to any one-year period between date of birth and date the petition for adoption was filed and is not limited to the year immediately preceding the filing of the adoption petition. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). And we have applied the one-year period against a nonresident parent who failed to support his child significantly for a year and thereby lost the right to consent. Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981).

Here, we are presented with a novel circumstance in that jurisdiction of the case was transferred to Arkansas shortly before the adoption petition was filed. The probate judge, however, was presented with no clear and cogent reason not to apply Arkansas law to this cause other than the fact that the case had only been in Arkansas for a month and a half. It is elementary that the laws of the forum state typically are applied to its cases and controversies. We hold that there was no error in the application of Arkansas law to circumstances occurring prior to the transfer of jurisdiction.

The appellant contends for the first time on appeal that her due process rights were violated because of lack of notice that she stood to lose her parental rights by the retrospective application of Arkansas law to a time when the Michigan circuit court still had jurisdiction. It does not appear, though, that the appellant raised this constitutional argument before the probate judge. Merely arguing that Arkansas law should not apply until after the court obtained jurisdiction, as the appellant did before the probate judge, did not alert the judge to the constitutional arguments now presented. This court will not consider any argument raised for the first time on appeal, even a constitutional argument. Arkansas County v. Burris, 308 Ark. 490, 825 S.W.2d 590 (1992).

II. WAIVER OF CONSENT

For her second point, the appellant urges that she did not fail to communicate with her children for a year, and even if this court concludes that she did, this lapse was justifiable under § 9-9-207(a)(2).

Statutes for the adoption of children are strictly construed and applied. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). We have placed a heavy burden of proof on one wishing to adopt a child without the consent of a parent and that burden is by clear and convincing evidence. In the Matter of the Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986); Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979). The question we must now answer on appeal is whether the probate judge's finding of lack of parental contact without justification was clearly erroneous. See Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).

The record reveals that the appellant's last visit with her children was on March 20, 1989, and no contact was had with them until she mailed birthday cards on September 27, 1990. That represents a period of a year and one-half when there was no communication between the appellant and the twins. The appellant insists that a letter she wrote dated March 8, 1990, to Ms. Evelyn Green, the appointed friend of the Michigan court, requesting visitation of the children, and a progress report sent from the appellees to her concerning the children made in April 1990 qualify as communication with the children. The argument though is specious. Communication with Ms. Green or the appellees did not constitute communication with the children. The fact of the matter is there was no contact with the children for more than a year.

We are left then with the pivotal...