Lagios v. Goldman, CV–14–63

• Decision Date: 20 May 2015
• Docket Number: No. CV–14–63,CV–14–63
• Parties: Thomas L. Lagios Appellant v. Kenneth Mitchell Goldman and Deanne Fields Goldman, Appellees
• Court: Arkansas Court of Appeals

2015 Ark. App. 329

463 S.W.3d 726

Thomas L. Lagios Appellant

v.Kenneth Mitchell Goldman and Deanne Fields Goldman, Appellees

No. CV–14–63

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered MAY 20, 2015

Depper Law Firm, Inc., El Dorado, by: Robert L. Depper, Jr., for appellant.

Burbank Dodson & Barker, PLLC, El Dorado, by: Jack W. Barker, for appellees.

Opinion

DAVID M. GLOVER, Judge

This is the second time this case has been before us.¹ Thomas Lagios appeals from the September 17, 2013 adoption decree, in which the trial court ruled that Lagios was not a fit and proper person² to have custody of his infant daughter, M.L.H., and granted the adoption petition filed by appellees, Deanne and Mitch Goldman. Lagios raises four points of appeal in challenging the adoption decree: (1) the trial court never acquired jurisdiction of the case because the Goldmans never strictly or substantially complied with the adoption statutes; (2) the trial court abused its discretion when it allowed the adoption without Lagios's consent; 3) the trial court abused its discretion when it sua sponte reopened the case to allow the Goldmans to present evidence from social worker Deborah Rago regarding the home study conducted by her when it previously was not allowed into evidence because Rago did not appear for the hearing and Lagios was unable to cross-examine her; and (4) the facts do not support the trial court's determination that it was in M.L.H.'s best interest for the Goldmans to be allowed to adopt her. We affirm.

Facts

M.L.H. was born on February 14, 2012, to Crystal Angela Morgan, a twenty-nine-year-old single person. At the time of the birth, Crystal was cohabitating with Lonnie Henson, a man in his sixties. He was present for M.L.H.'s birth and signed the birth certificate as the father. Crystal died unexpectedly on March 12, 2012, when M.L.H. was only a month old. Henson attempted to care for M.L.H. on his own, but for various reasons, including the fact that he was in poor health, he asked appellee Deanne Goldman, whom he knew from frequenting her store, for help with the baby. Deanne continued to help Henson with the baby from the end of March 2012 until the end of May 2012, when Henson asked her to adopt M.L.H. because he could not care for M.L.H. However, with discussion by Henson of a possible medical-malpractice lawsuit being filed on M.L.H.'s behalf, Deanne became M.L.H.'s guardian until such a lawsuit was completed, petitioning for and receiving guardianship of M.L.H.'s person and estate on June 1, 2012, in the Probate Division of the Columbia County Circuit Court.

On June 20, 2012, appellant Lagios, a sixty-one-year-old friend of Henson's, filed a petition to establish paternity/custody in the Domestic Relations Division of the Union County Circuit Court, asserting that he might be M.L.H.'s father. As confirmed by his own testimony, Lagios had also had sexual relations with Crystal during the period of time she conceived M.L.H.

The Goldmans jointly filed a petition for adoption on September 6, 2012. Lagios responded on September 18, 2012, contesting the adoption and requesting that the petition be denied and dismissed.

On January 14, 2013, the Union County Circuit Court entered an order declaring Lagios to be M.L.H.'s biological father. It then transferred the custody portion of the pending Union County case to Columbia County to be joined with the pending adoption case.

The adoption hearing was held on June 28, 2013. At the hearing, the Goldmans attempted to introduce a home study on their home performed by Deborah Rago; Lagios objected to its introduction because Rago was not present to be cross-examined and the home study contained hearsay. Though the trial court did not allow the home study to be introduced into evidence, it did allow the Goldmans to proffer the home study. At the close of the evidence, the trial court requested post-trial briefs from the parties; after receiving the briefs, the trial court, sua sponte, entered an order on August 9, 2013, reopening the record. Lagios opposed this order in a motion to reconsider; Lagios also filed a motion for visitation, asserting that all attempts to visit M.L.H. had been denied by Deanne.

In the subsequent hearing held on August 30, 2013, the trial court denied Lagios's motion to reconsider reopening the record; it stated that while Ms. Rago had indicated she would be present for the adoption hearing, she was out of town that day, and the issue was so grave and of such importance that it would constitute an injustice not to allow the record to be completed. It also delayed Lagios's visitation request, stating that it would be making a decision shortly regarding the adoption, at which time it would take up the issue of visitation, if necessary. The trial court then heard the testimony of Ms. Rago and accepted into evidence the home study she had performed. The court informed the parties in a letter opinion dated September 4, 2013, that it was its intention to enter a decree granting the Goldmans' request to adopt M.L.H.; a subsequent order was filed on September 17, 2013. Lagios filed a timely notice of appeal on October 15, 2013.

Compliance with Adoption Statutes & Sua Sponte Reopening of Case

Lagios argues that the trial court never acquired jurisdiction of this case because the Goldmans never strictly or substantially complied with the adoption statutes. In a separate point on appeal, Lagios also contends that the trial court abused its discretion by sua sponte reopening the adoption hearing after both parties had rested their cases (to allow Deborah Rago's testimony and the introduction of the home study she prepared for the Goldmans). These two arguments are best addressed together.

Adoptions are “special proceedings” because they were unknown to the common law and are governed totally by statute. In re: Adoption of Baby Boy Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997). Rule 81(a) of the Arkansas Rules of Civil Procedure provides that those rules shall apply to all civil proceedings “except in those instances where a statute which creates a right, remedy, or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.” Jurisdiction of the probate court to order an adoption depends on strict statutory compliance—all jurisdictional requirements must be in the record. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). However, case law has also held that substantial compliance is sufficient. Martin v. Martin, 316 Ark. 765, 875 S.W.2d 819 (1994) ; Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001) (holding that a petition for adoption is valid where there is substantial compliance with the statutory requirements); Arkansas Dep't of Human Sews. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992) (citing Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927) ).

Before addressing what Lagios contends are deficiencies that deprived the trial court of jurisdiction to enter the adoption, we must first address Lagios's argument that the trial court erred in sua sponte reopening the case. Arkansas Code Annotated section 9–9–214(b) (Repl.2009) provides, “The court may continue the hearing from time to time to permit further observation, investigation, or consideration of any facts or circumstances affecting the granting of the [adoption] petition.” Lagios argues that reopening of a case is simply not authorized by this statute. He is incorrect. In Reid v. Frazee, supra, our court held that this particular subsection did in fact authorize subsequent hearings (“Appellant's argument ignores Ark.Code Ann. § 9–9–214(b).”). Additionally, in that case, our court further held:

Even absent statutory authority, the probate judge had inherent authority to hold the subsequent hearing. In Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980), the chancellor vacated a judgment and granted a new hearing when it came to the court's attention that it had possibly overlooked certain defenses. The court reasoned:

It is a well settled principle that courts have control over their judgments during the term at which they are made, and, for sufficient cause, may, either upon application or upon their own motion, modify or set them aside. This power is inherent and plenary and exists without reference to any statute. It exists so that courts may review and correct any mistakes, errors or indiscretions which might have been committed....

Appellants argue that the court should not have vacated the judgment and taken additional evidence because appellees should have adequately developed the issues at the first trial ... While we agree that the chancellor was not required to set the judgment aside and grant a new hearing, that in no way implies that the chancellor should be prohibited from doing so. Id. at 271–72, 599 S.W.2d at 745.

72 Ark. App. 474, 479, 41 S.W.3d 397, 400. We find no error in the trial court's decision to sua sponte reopen the case for Ms. Rago's testimony (and Lagios's cross-examination of that testimony) and the introduction of the home study she had prepared on behalf of the Goldmans.

Lagios asserts deficiencies in the adoption petition filed by the Goldmans. Arkansas Code Annotated section 9–9–210 (Supp.2013) sets forth the requirements for a petition for adoption:

(a) A petition for adoption signed and verified by the petitioner, shall be filed with the clerk of the court, and state:

(1) The date and place of birth of the individual to be adopted, if known;

(2) The name to be used for the individual to be adopted;

(3) The date the petitioner:

(A) Acquired custody of the minor and of placement of the minor and the name of the person placing the minor; and a statement as to how the petitioner acquired custody of the minor; or

(B) Was selected to adopt the minor by the child placement agency licensed by the Child Welfare Agency Review Board;

(4) The full name, age, place, and duration of residence of the petitioner;

(5) The

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