Martin v. Martin

• Decision Date: 02 May 1994
• Docket Number: No. 93-935,93-935
• Citation: 875 S.W.2d 819,316 Ark. 765
• Parties: Rachael MARTIN, Appellant, v. Greg MARTIN and Alice Martin, Appellees.
• Court: Arkansas Supreme Court

Page 819

875 S.W.2d 819

316 Ark. 765

Rachael MARTIN, Appellant, v. Greg MARTIN and Alice Martin, Appellees.

No. 93-935.

Supreme Court of Arkansas.

May 2, 1994.

Martha P. Gilpatrick, Jonesboro, for appellant.

Richard Rhodes, Osceola, for appellees.

GLAZE, Justice.

In this adoption case, Rachael, the natural mother, and the adoptive parents, Rachael's brother and sister-in-law, appeared with an attorney before the probate judge on December 10, 1991, to present a petition for adoption. The judge, however, refused to approve the petition and enter an interlocutory decree because Rachael had executed her consent to adoption only that day (December 10th). By law, Ark.Code Ann. § 9-9-209(b)(1) (Repl.1993), Rachael had ten days within which she could withdraw her consent, and no order of adoption could be entered prior to the withdrawal period. Ark.Code Ann. § 9-9-212(a) (Repl.1993). The judge explained this statutory withdrawal period to Rachael in open court. ¹ Afterwards, the adoptive parents filed their petition for adoption on December 13, 1991, and on December 23, 1991--thirteen days after Rachael executed her consent--the probate judge signed and entered the interlocutory adoption decree.

Rachael did not perfect an appeal from the trial judge's decree or motion for a new trial under ARCP Rule 59. However, eighty-seven days after entry of the adoption decree, she filed her petition to set it aside. While she alleged that the adoptive parents obtained her consent through fraud and duress, the judge found no fraud and refused to set aside her consent and the adoption decree.

Significantly, as we address more fully below, Rachael chose not to challenge on appeal the lower court's ruling that no fraud or duress occurred. Instead, she argues the adoptive parents failed to comply strictly with the provisions of three adoption statutes, Ark.Code Ann. §§ 9-9-209, 9-9-212(a) and 9-9-214 (Repl.1993), and the court erred in refusing to set aside the interlocutory decrees for such noncompliance. In sum, Rachael contends her consent was not properly or timely executed and a hearing on the adoption petition was not timely held.

The adoptive parents, on the other hand, rejoin by pointing out that the statutory provisions were complied with either by strict or substantial compliance. They emphasize, too, the trial judge's findings that Rachael had been fully apprised in open court that she had ten days to withdraw the consent, that the decree was entered thirteen days after she executed her consent, and that she waited nearly three months from when she signed the consent before filing her petition to set aside the adoption decree.

Rachael's arguments ignore the settled rule that consent to adoption can be withdrawn after an interlocutory order only upon a showing of fraud, duress, or intimidation. Pierce v. Pierce, 279 Ark. 62, 648 S.W.2d 487 (1983); McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983); see also Ark.Code Ann. § 9-9-209(a) (Repl.1993). As previously mentioned, Rachael does not argue that her consent was obtained by fraud and duress.

It is suggested that the rule in Pierce and McCluskey presupposes a consent executed in strict compliance with the provisions of § 9-9-209(a) and other adoption provisions. Rachael cites four cases in support of her argument. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992); In the Matter of the Adoption of Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990); Dale v. Franklin, 22 Ark.App. 98, 733 S.W.2d 747 (1987); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark.App.1980). These cases, however, are factually different from the situation before us now since those cases involved persons who were not shown to have executed a consent, had timely withdrawn the consent or the person successfully showed the probate court had entered its interlocutory adoption decree before the ten-day withdrawal period had expired. The holdings in those cases are consistent with Ark.Code Ann. § 9-9-206 (Repl.1993) which requires a written consent before an adoption can be granted and with § 9-9-212(a) which further provides that no orders of adoption, interlocutory or final, may be entered prior to the ten-day period of withdrawal. In this same vein, this court has held that the jurisdiction of the probate court to order an adoption depends upon the consent of the person legally authorized to represent the minor. Swaffar, 309 Ark. 73, 827 S.W.2d 140. Here, unlike the cases cited by Rachael, the record supports the trial judge's ruling that Rachael's consent was given. And, while Rachael argues otherwise, the record also reflects that the trial court entered its adoption decree thirteen days after she executed her consent--three days after the ten-day withdrawal period had expired. In signing the consent, Rachael also verified she knew she had only ten days to revoke her consent. Clearly, the trial court had Rachael's written consent and jurisdiction of the case when it entered its adoption decree.

Rachael complains that the adoption statutes provide that she was entitled to a new hearing after the December 10 hearing and after the adoptive parents filed their adoption petition on December 13. See §§ 9-9-212 and 9-9-214(c). She also argues her consent failed to contain the name and address of the probate clerk whom Rachael should file with when withdrawing her consent. See § 9-9-209(b)(1) and (2). Regarding Rachael's complaint that a second hearing should have been held, the probate court certainly had authority to excuse the parties' appearance under § 9-9-214. And as to any omission of the clerk's name and address from the consent, Rachael obviously suffered no prejudice in this respect since she never attempted to withdraw her consent until long after the ten-day withdrawal period had expired. In any event, Rachael's complaints do not involve jurisdictional matters like that involving the execution of Rachael's consent as discussed above. ²

Rachael's argument seems to suggest that any noncompliance with the adoption code, however slight, would prohibit a probate court's entry of an adoption decree. Such suggestion by its very nature would extend Arkansas's settled rule so as to permit an adoption order to be set aside for a reason other than fraud, duress, or intimidation. Certainly, no statute is cited to support this idea and our case law, particularly this court's decision in Pierce, disabuses us of any such notion. There, the natural parent's argument to set aside the interlocutory decree was based solely upon her contention that Ark.Stat.Ann. § 56-213 (Supp.1981) [now Ark.Code Ann. § 9-9-213 (Repl.1993) ] had not been complied with since the child had not lived in the adoptive parents' home for six months. This court rejected the natural mother's request to revoke her consent for this statutory noncompliance, stating her consent could only be withdrawn upon showing that fraud, duress, or intimidation had been practiced. ³

In the present case, we hold the record supports the trial judge's findings that Rachael's ten-day period for withdrawing her consent had been explained to and afforded her before the adoption decree was entered. Furthermore, as was the situation in Pierce, the failure, if any, of strict compliance with the provisions argued by Rachael here are simply insufficient grounds to set aside the trial court's decree.

Arkansas adoption statutes ensure adoption decrees obtained under the law possess that necessary and required finality so that an adoptive parent is not freed of the parental obligations he or she has willingly undertaken. See Pham v. Truong, 291 Ark. 442, 725 S.W.2d 569 (1987). This finality and stability to be given adoption decrees is further reflected by Ark.Code Ann. § 9-9-216(a) (Repl.1993), which provides that, after one year, an adoption decree cannot even be questioned for (1) fraud, (2) misrepresentation, (3) failure to give any required notice, or (4) lack of jurisdiction of the parties or of the subject matter. ⁴ The commentary to the Uniform Revised Adoption Act sets out the importance and reasoning in keeping adoption orders intact by providing that "[t]he policy of stability in a family relationship, particularly when a young minor is involved, outweighs the possible loss to a person whose rights are cut off through fraud and ignorance." See Unif.Adoption Act § 15, 9 U.L.A. 62 (1988), which is comparable to § 9-9-216 of the Arkansas Adoption Act.

In conclusion, we note that the adoptive parents now have had custody of the infant involved here for two years and four months. No fraud or duress was employed in obtaining Rachael's consent or custody of her child. To the contrary, Rachael was fully informed by the probate judge that she had only ten days within which she could withdraw her consent. For whatever reason, she waited nearly three months to withdraw it. To set side the trial court's decree on the grounds Rachael asserts would seriously undermine the stability and finality lawfully intended for adoption decrees once signed and entered. For the reasons discussed, we affirm the probate judge's decision.

DUDLEY, NEWBERN and BROWN, JJ., dissent.

DUDLEY, Justice, dissenting.

A probate court granted an interlocutory decree of adoption. Eighty-seven days later the biological mother moved to set aside the decree. The probate court denied the motion. The biological mother appeals. The court of appeals certified the case to this court. The majority opinion affirms the ruling of the probate court. I would reverse.

In October 1991, about a month before her child was due, Rachael Martin, nineteen years old and single, asked her brother, Greg Martin, and his wife, Alice, if they wished to adopt her child when it was born. Greg and Alice responded affirmatively. Soon afterwards, the three, along with Rachael's mother, discussed the matter with an attorney. The baby was born on November 25, 1991, and appellees Greg and Alice Martin...