Hughes v. Elliott

Docket NumberCV-20-697
Decision Date08 December 2021
Citation2021 Ark.App. 486
CourtArkansas Court of Appeals


Appellate Solutions, PLLC, d/b/a Riordan Law Firm, by Deborah Truby Riordan, for appellant.

Cullen & Co., PLLC, by: Tim Cullen, for appellees.


Layman Hughes appeals the May 6, 2020 final order and decree of adoption entered by the Polk County Circuit Court granting the petition for adoption of his four children filed by Jonathan Elliott and Lisa Elliott (husband and wife, the "Elliotts"). Hughes argues that the circuit court clearly erred by (1) granting the petition without proof that the requirements of Ark. Code Ann. § 9-9-212 (Repl 2020) had been met; (2) granting the petition without obtaining Hughes's consent; and (3) finding that the adoption was in the children's best interest. We find merit in Hughes's argument; accordingly, the circuit court's adoption order is reversed and dismissed.

I. Statement of Facts and Procedural History

Hughes and Tatum Veal were married and had four children (KJH, d/o/b July 7, 2008; MAH, DOB February 13, 2010; LLH, DOB March 19 2011; and HJH, DOB January 1, 2015). The family lived in Mena, Arkansas. From 2008 until 2018, Hughes worked on a pipeline in Texas and New Mexico for extended periods; however, he maintained contact with and supported his family.

In March 2017, Veal and Hughes divorced, and the resulting decree provided that they would coparent the children with no provision being made for child support. Veal and Hughes both had histories of illegal drug use, which caused the children to be placed in foster care at times, most recently from March to August 2017. During that period, both Veal and Hughes had supervised visitation with the children through the foster parents and the Arkansas Department of Human Services ("DHS").

In August 2017, with Hughes's consent, Veal regained custody of the children. Hughes subsequently sent Veal several payments to help provide for the children's support during his absence. During this period, Veal met the Elliotts and began leaving the children in their care from time to time. Roxann Elliott expressed to Veal her concern about the children's well-being because Veal allegedly was using drugs again.

Hughes, who was still working out of state, believed that the children were being cared for by Veal with assistance from the support he provided. He was unaware of Veal's alleged drug issues or that she had been leaving the children with the Elliotts; however, when he returned for Christmas in 2017, one of the children expressed concerns to him about the situation.

As a result, Hughes decided to quit his job working on the pipeline to be present for, and obtain custody of, the children. He quit his job in January 2018, moved back to Mena, and sought assistance from DHS for a drug-and-alcohol assessment and inpatient-rehabilitation therapy.

Roxann Elliott began asserting control and threatening that she would take the children away from Veal because of her drug use. On January 13, 2019, Veal took the children to the Elliotts and asked them to keep them for her. Hughes maintained weekly supervised visitation with the children at the time.

On April 19, Hughes was admitted to an inpatient-rehabilitation program in Fort Smith. Hughes told his children that he would be leaving for a month to get his life together for them but that he would be back. That was the last time the Elliotts permitted Hughes to see his children.

During Hughes's month-long inpatient rehabilitation, DHS set a protective-services closure hearing. Additionally, the Elliotts filed to become guardians of the children. The hearings were combined and held on May 14.[1] DHS transported Hughes to the hearing from the rehabilitation facility where he unsuccessfully sought visitation and objected to the guardianship.

At the hearing, the circuit court announced Hughes's ability to continue supervised visitation but also stated that it could take up to a year for him to gain significant visitation with his children by becoming and staying drug-free and receiving counseling and that it would then be up to the children's counselor as to when unsupervised visitation could begin. The resulting order included a plan anticipating Hughes's continued visitation.

Following that hearing, the Elliotts enrolled the children in counseling with Pat Howard. Although they knew that the circuit court's order permitted supervised visitation, the Elliotts began to block Hughes's attempts to see or communicate with the children, including engaging in the false pretense that a no-contact order had been entered against Hughes. On Father's Day, Hughes went to the church the Elliotts attended, at which time the Elliotts had the pastor and a deputy sheriff ask Hughes to leave under threat of arrest. On July 7, Hughes took a birthday card to the Elliotts' house for KJH's tenth birthday and left it on their front porch at the door. The following week, Hughes went to Howard's office to discuss his options for visitation despite the obstacles from the Elliotts. The children happened to be at Howard's office, and the Elliotts called the police, alleging that a no-contact order against Hughes was in place. They told Howard that visitation was not allowed and threatened Hughes to never return to their house or they would have him arrested.

During this time, Hughes followed the circuit court's directives to reinstate visitation with his children and to work toward gaining custody. He underwent drug-and-alcohol rehabilitation programs; submitted to and consistently passed weekly drug tests; and started working regularly with a counselor. He attempted to meet with the Elliotts at Howard's office, but they threatened to have him arrested for being there. His drug screens were sent to Howard, evidencing that he continued to be drug-free. He set up a four-bedroom home in preparation for gaining visitation with, and eventually custody of, his children.

Howard, as gatekeeper for access to the children, did not convey to Hughes any conditions on his ability to see them other than the circuit court's order, and she stated that she wanted him to work on his relationship with the Elliotts-which was not a condition of the order. Howard acknowledged that Hughes had complied with the circuit court's requirements for visitation and that visitation with Hughes would have been appropriate, but she denied his requests because she felt like he was rude to her and the Elliotts. Hughes unsuccessfully sought assistance in setting up visitation through Howard from his counselor, Darlena Peikert, his attorney, Orvin Foster, and DHS

During this time, the Elliotts moved the children to property they owned on Highway 270, sixteen miles from town. The property is so remote that there is no cell or land-line phone service, and the nearest neighbor is a half mile away. The Elliotts testified that they took the children there so that neither Hughes nor other family members could drive by and see the children.

On August 7, 2018, Hughes's attorney filed in the guardianship case a motion for visitation[2] to compel the Elliotts to allow him the visitation that the circuit court had ordered in May. A hearing was set for August 27. Also on August 7, Hughes went to Texas under the assumption that he was going to enter a plea agreement for probation on a pending possession-of-marijuana charge, a Class A misdemeanor in Arkansas, but a felony in Texas. When he arrived in Texas, he was taken into custody and incarcerated until June 26, 2019. As a result, he missed the August 27 visitation hearing and had no means of communication with his children during his incarceration because the Elliotts continued to hide them away out of town and moved from location to location. During his incarceration, Hughes underwent spiritual counseling, was baptized, and completed several programs for the betterment of his spiritual and emotional well-being.

On June 14, 2019, two weeks prior to Hughes's release, the Elliotts filed for adoption of Hughes's children, but he was neither informed of nor served with the adoption petition. Hughes was released from jail on June 26, and returned to Mena on July 3, having completed halfway-house and initial parole obligations in Texas. When he returned to Mena, he met with his parole officer and then with his attorney to inquire about resuming visitation. His attorney told him that he did not believe that an adoption petition had been filed. On July 25, Hughes went to see Howard regarding resuming visitation, and Hughes and his attorney continued to try, to no avail.

Hughes reenrolled in counseling and never failed a drug screen. Within thirty days of his return, he obtained employment with Patty McCandless at her recreational ranch. Although the job was not intended to be long term, it helped him to have the flexibility to obtain his GED and complete the twelve-week substance test required by the parole office. Once Hughes's employment was established, he sent the Elliotts sixty-dollar support payments in August, September, and October 2019 when he was making only eight dollars an hour. All of the payments were rejected by the Elliotts.

The circuit court acknowledged Hughes's efforts at attempting to see his children at the March 2, 2020 adoption hearing:

I think I get the gist of the testimony has been, even up to this point in time, that Mr. Hughes has made some diligent efforts to try to get contact with his kids, and I don't think that we need to keep going over and over and over that.

To the contrary, Veal, who...

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