Escobedo v. Nickita

• Decision Date: 09 March 2006
• Docket Number: No. 05-315.,05-315.
• Citation: 231 S.W.3d 601
• Parties: Rusty Wayne ESCOBEDO, Appellant, v. Mark NICKITA and Jennifer Nickita, Appellees.
• Court: Arkansas Supreme Court

231 S.W.3d 601

Rusty Wayne ESCOBEDO, Appellant, v. Mark NICKITA and Jennifer Nickita, Appellees.

No. 05-315.

Supreme Court of Arkansas.

March 9, 2006.

Jim D. Johnson, P.A., by: Jim D. Johnson, for appellant.

Jack and Holly Martin, Attorneys, by: Jack L. Martin, Springdale, for appellees Mark and Jennifer Nickita.

Mike Beebe, Att'y Gen., by: Asheton M. Carter, Ass't Att'y Gen., Little Rock, for appellee, State of Arkansas.

JIM GUNTER, Justice.

This appeal arises from the circuit court's order in an adoption case, granting the petition for adoption and finding that neither notice to nor consent from appellant, the putative father, Rusty Escobedo, was required. The circuit court's order also dismissed as moot Mr. Escobedo's petition for paternity, which had been consolidated with the adoption matter. Mr. Escobedo files this appeal, claiming that the circuit court erred in granting the adoption without notice or consent, and asks us to reverse the circuit court's order, dismiss the petition for adoption, and remand the case for further hearings on his petition for paternity and custody. We affirm.

Appellant, Mr. Escobedo, and the child's mother, Misty Ford, had a brief romantic relationship which resulted in an unprotected sexual encounter in March of 2004. Appellant did not see or talk with Ms. Ford after this encounter, and did not know that the encounter had resulted in Ms. Ford's pregnancy. Ms. Ford was also romantically involved with another man, Billy Ray Gibbins, at the time. On December 3, 2004, Ms. Ford gave birth to a baby girl. Two weeks before the birth, on November 19, 2004, appellees, Mark and Jennifer Nickita, filed a petition for adoption of Ms. Ford's unborn child, alleging that the father was unknown.

On the day of the baby's birth, Ms. Ford relinquished her parental rights and consented to the adoption of the baby by appellees. DNA testing excluded Mr. Gibbins as the father. The parties dispute whether appellant had sufficient information to be able to contact Ms. Ford prior to the birth, but agree that he did not contact her during the pregnancy and was not aware that she was pregnant. Appellant first learned that his sexual encounter with Ms. Ford had resulted in a pregnancy and the birth of a child in December of 2004. On December 14, 2004, appellant was served with a summons, petition for adoption, notice of hearing, and notice of deposition. He was deposed by appellees' attorney on December 16, 2004. At the deposition, a DNA test was administered. On December 20, 2004, appellant appeared at the adoption hearing without an attorney and immediately requested the results of the paternity test. When asked by the circuit court, appellees' attorney admitted that the paternity test indicated that appellant was the biological father.

On December 30, 2004, appellant filed (1) a response to the petition for adoption, requesting the court to dismiss the petition, and (2) a petition to establish paternity, asking the court to determine that he was the biological father of the baby and to grant primary custody of the baby to him. On January 3, 2005, appellant filed his information with the putative-father registry. On January 13, 2005, he filed an amended response to the petition for adoption, attaching the registry filing and a copy of the paternity test showing the probability of parentage of 99.99%. He amended his response, adding a claim that the adoption statutes violated his right to due process. In light of appellant's constitutional challenge to Arkansas statutes, the circuit court granted the State's motion to intervene on February 23, 2005.¹ On March 2, 2005, the circuit court entered an order granting the adoption and dismissing the petition for paternity as moot. Appellant filed this appeal. At this point, the baby was almost three months old.

I. Ark.Code Ann. § 9-9-206(a)(2)

Appellant's first point on appeal is that the circuit court erred in finding that his consent to the baby's adoption is not required. He contends that his consent is required pursuant to Ark.Code Ann. § 9-9-206(a)(2)(Repl.2002), because he has "otherwise legitimated" the child. Our task is twofold: to interpret the meaning of "otherwise legitimated" and to determine whether appellant has "otherwise legitimated" the child in this case.

Our standard of review is de novo, as it is for this court to decide what a statute means. In re Adoption of SCD, 358 Ark. 51, 186 S.W.3d 225 (2004). We are not bound by the decision of the circuit court, but unless it is shown that the circuit court's interpretation was wrong, we will accept its interpretation on appeal. Id. We turn now to the statute in issue.

Ark.Code Ann. § 9-9-206 (Repl.2002)² governs persons who are required to consent to the adoption and states in relevant part as follows:

(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:

. . . .

(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has custody of the minor at the time the petition is filed, or he has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought[.]

Id. (emphasis added).

Notice of the filing of an adoption petition must be given to any person whose consent to the adoption is required, but who has not consented. Ark.Code Ann. § 9-9-212 (Repl.2002). In addition, Ark. Code Ann. § 9-9-224 requires that, "[w]hen information concerning the child is contained in the putative father registry at the time of the filing of the petition for adoption, notice of the adoption proceedings shall be served on the registrant. . . ." Id. (emphasis added). At the time the petition for adoption was filed, two weeks before the baby was born, appellant would not have been entitled to notice under either of these statutes. Appellant does not argue otherwise.

Appellees argue that because appellant was not entitled to notice, he was not required to consent. They argue that if he had not been given notice, he would not have been aware of the child's birth, he would never have taken any acts to legitimate the child, and the court could have entered the order for adoption immediately after the hearing. They claim that it would be a bizarre result for us to find that appellant's consent was necessary due to actions he took after a hearing of which he was not required to be notified.

We disagree. While we agree that the statutes did not require that notice be provided to appellant at the time the petition in this case was filed, appellant was notified of the hearing, and he attended. It is not relevant for purposes of Ark.Code Ann. § 9-9-206(a)(2) how he became aware of the birth of his child. What matters is whether he has "otherwise legitimated the minor[.]" Id. If he has, his consent is statutorily required for adoption; if he has not, it is not.

We had the opportunity to interpret what is meant by the language "has otherwise legitimated the minor" in In re Adoption of SCD, 358 Ark. 51, 186 S.W.3d 225 (2004). In that case, the putative father, TF, registered with the Arkansas Putative Father Registry before the child was born. See Ark.Code Ann. § 20-18-702 (Repl. 2005). Upon the baby's birth, the mother immediately put the child up for adoption. The petition for adoption was filed the day after the birth. TF received notice of the petition for adoption and filed a response and a petition for determination of paternity, seeking custody if he were determined after testing to be the child's biological father. After admitting the results of a paternity test that showed a 99.99% probability that TF was the father and declaring TF to be the baby's father in the paternity hearing, the court denied the adoption petition, finding that TF had legitimated the baby in accordance with Ark.Code Ann. § 9-9-206(a)(2), and that his consent was required for adoption.

We affirmed, holding that TF legitimated the child by registering with the putative-father registry, petitioning for a determination of paternity, and taking significant steps to prepare for having the baby with him in the event he was awarded custody. Id. at 56, 186 S.W.3d at 227. We quoted the following Black's Law Dictionary definition of "legitimate": "to make lawful; to confer legitimacy; e.g., to place a child born before marriage on the legal footing of those born in lawful wedlock." Id. at 56, 186 S.W.3d at 227 (quoting Black's Law Dictionary 901 (6th ed.1990)). We then quoted Ark.Code Ann. § 9-10-108(b) (Repl.2002), which states that the "registration of the father with his consent in the putative father registry . . . shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut such in a proceeding for paternity establishment." Finally, we stated that the fact that TF did not file his paternity petition until a few days after the petition for adoption was filed did not preclude a finding that he "otherwise legitimated" the baby. Id. at 56 186 S.W.3d at 227. We noted that there was no explicit time period set forth in Ark.Code Ann. § 9-9-206(a)(2) in which the father must have accomplished the legitimation. Id.

Turning to this case, appellant argues that the following actions legitimated the baby: (1) submission to DNA testing on December 16, 2004; (2) appearance at the December 20, 2004, hearing to contest the adoption, request custody, and request an opportunity to raise the baby; (3) timely filing a response to the adoption on December 30, 2004; (4) filing a petition to establish paternity on December 30, 2004; and (5) establishment of paternity at the December 20, 2004, hearing when the results of the DNA test were admitted in court and the appellees' attorney stated that appellant was the...