In re Adoption Baby Boy B.

• Decision Date: 12 April 2012
• Docket Number: No. 11–374.,11–374.
• Parties: In the Matter of the ADOPTION OF BABY BOY B., a minor.
• Court: Arkansas Supreme Court

2012 Ark. 92

394 S.W.3d 837

In the Matter of the ADOPTION OF BABY BOY B., a minor.

No. 11–374.

Supreme Court of Arkansas.

March 1, 2012.

Rehearing Denied April 12, 2012.

Hixson & Daniels, PLLC, Fayetteville, by: Alanna M. Fairrell, for appellant.

H. Keith Morrison, Little Rock, for appellees.

KAREN R. BAKER, Justice.

Appellant J.E.M., biological father of Baby Boy B., appeals from a Faulkner County Circuit Court order that determined that his consent to the adoption of Baby Boy B. was not required pursuant to Arkansas Code Annotated section 9–9–206(a)(2) (Repl.2009). Appellant argues that the circuit court erred by finding that his consent to the adoption was not required, by granting the decree of adoption in favor of appellees G.F.J. and S.L.J., and by finding that Arkansas Code Annotated sections 9–9–206(a)(2) and 9–9–207(a)(11) do not violate the Constitution of the United States. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(3) and (4) (2011), as the issues presented involve federal constitution interpretation and are of significant public interest. We reverse and remand.

Appellant and S.M.B. began dating while both were attending Southeast Missouri State University. In 2009, S.M.B. discovered that she was pregnant, and she and appellant visited Birth Right to get information about the pregnancy. S.M.B. signed up with an adoption agency and told appellant of her plans afterwards. S.M.B. told appellant that she would leave Missouri for the adoption; although appellant inquired where she would be going, she refused to tell him.

Shortly after learning of the adoption plan, appellant contacted an attorney in Missouri in order to find out about his parental rights. He did not ultimately retain that attorney. Appellant then filed with the Missouri Putative Father Registry on March 30, 2010. S.M.B. departed Missouri on or about May 13, 2010, moving to Lubbock, Texas, into housing furnished by Adoption Covenant, a non-profit child-placement agency. While S.M.B. was in Texas, she and appellant communicated by text messages and telephone calls, but she continued to conceal her whereabouts, even when appellant inquired. Appellant repeatedly told S.M.B. that he wanted them to be a family so that they could raise the unborn child together. However, appellant informed S.M.B. that the decision whether to put the baby up for adoption was hers.

Initially, the adoption was to be filed in Texas, and Adoption Covenant had an attorney draft the appropriate documents. In June and July 2010, that attorney sent several sets of documents to appellant so that he could relinquish his parental rights. Appellant refused to sign the documents, and he filed an original petition to establish parentage and an original petition affecting the parent-child relationship in Lubbock, Texas, on July 23, 2010. On July 24, 2010, appellant signed with the Illinois Putative Father Registry. ¹ The attorney working with Adoption Covenant learned about the filing of appellant's petitions in Texas and discussed the filing with S.M.B. Following this discussion, S.M.B. moved to Arkansas in late July or early August 2010. S.M.B. did not inform appellant of her move to Arkansas.

On or about August 3, 2010, appellant filed with the Texas Putative Father Registry. He attempted service on S.M.B. of the petition he had filed in Lubbock, Texas, but was unsuccessful. Appellant then learned that S.M.B. had moved to Arkansas, but was unaware of her specific location. He filed with the Arkansas Putative Father Registry on or about August 17, 2010. S.M.B. signed a relinquishment of parent-child relationship and a consent to guardianship and adoption on September 3, 2010. Baby Boy B. was born on September 4, 2010, in Washington County, Arkansas, and was placed with appellees in Pulaski County, Arkansas, on that same day. Appellant was not informed of the birth, and on September 8, 2010, filed a complaint for paternity and custody of an unborn child in the circuit court of Washington County, Arkansas.

A petition for temporary guardianship of Baby Boy B. was filed on September 8, 2010, in Faulkner County, Arkansas, stating that the putative father had never been married to the biological mother, that he had provided no support, and that his consent was not required pursuant to Arkansas Code Annotated section 9–9–206. The circuit court found that the matters stated in the petition were true and entered an order on September 9, 2010, appointing Grace Adoptions as temporary guardian. Appellees filed a petition for adoption on September 13, 2010, and appellant filed a complaint in intervention on or about October 19, 2010. On October 26, 2010, appellant filed a motion to transfer and consolidate the Washington County proceeding with the Faulkner County adoption case. The motion was granted, and in Faulkner County Circuit Court, there was a guardianship case and a separate adoption case.

On November 16, 2010, a hearing was held to determine whether appellant's consent was required pursuant to Arkansas Code Annotated section 9–9–206. At the conclusion of the hearing, the circuit court determined that appellant's consent was not required. A decree granting the adoption of Baby Boy B. to appellees was entered on January 5, 2011. Appellant filed two separate appeals, one as to the guardianship and one as to the adoption. The instant case is a timely appeal from the decree of adoption.

We review issues of statutory construction de novo, as it is for this court to decide what a statute means. DaimlerChrysler Corp. v. Smelser, 375 Ark. 216, 289 S.W.3d 466 (2008). In this regard, we are not bound by the circuit court's decision; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id. However, when it is the circuit court's application of a statute to the facts before it, our standard of review is clearly erroneous. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93. A finding is clearly erroneous when, despite evidence to support it, we are left on the evidence with the firm conviction that a mistake has been committed. Morningstar v. Bush, 2011 Ark. 350, 383 S.W.3d 840.

Appellant argues that the circuit court erred in finding that pursuant to Arkansas Code Annotated section 9–9–206(a)(2) his consent to the adoption was not required because he failed to develop a significant custodial, personal, or financial relationship with Baby Boy B. He seeks reversal of the judgment, vacation of the decree of adoption in favor of appellees, and remand to the circuit court to allow him to proceed on his complaint for custody. The circuit court found appellant's testimony credible regarding his efforts to form the relationship section 9–9–206 requires, stating “I do think [appellant] did everything he [could] to protect his rights.” However, the court determined that the holding in X.T. v. M.M., 2010 Ark. App. 556, 377 S.W.3d 442, required strict compliance with section 9–9–206(a)(2), and appellant did not prove that he had developed a significant custodial, personal, or financial relationship with Baby Boy B. before the petition for adoption was filed. Resolution of this issue requires this court to interpret section 9–9–206(a)(2).

Section 9–9–206(a)(2) reads 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 physical custody of the minor at the time the petition is filed, he has a written order granting him legal custody of the minor at the time the petition for adoption is filed, a court has adjudicated him to be the legal father prior to the time the petition for adoption is filed, or he proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed[.]

The basic rule of statutory construction is to give effect to the intent of the legislature. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005). In construing intent, we look to the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). “Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts.” Matter of Adoption of Parsons, 302 Ark. 427, 431–32, 791 S.W.2d 681, 683 (1990). We confirmed our position of giving careful protection to a natural parent's rights in In re Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986):

[T]he power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that ‘the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation.... Every intendment should have been in favor of the claim of the mother under the evidence, and if the statute was open to construction and interpretation it should be construed in support of the right of the natural parent.’

Id. at 62–63, 702 S.W.2d at 13–14 (citing Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953) (quoting In re Cordy, 169 Cal. 150, 146 P. 532 (Cal.App.1914)).

We have also recognized that changes made by amendments may...