Mayberry v. Flowers

• Court: Arkansas Supreme Court
• Writing for the Court: Donald L. Corbin
• Citation: Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (Ark. 2002)
• Decision Date: 31 January 2002
• Docket Number: No. 00-1460.,00-1460.
• Parties: Kevin MAYBERRY v. Dorothy FLOWERS and Michael Flowers.

65 S.W.3d 418

347 Ark. 476

Kevin MAYBERRY v. Dorothy FLOWERS and Michael Flowers.

No. 00-1460.

Supreme Court of Arkansas.

January 31, 2002.

Tripcony Law Firm, P.A., by: James L. Tripcony and Scott A. Scholl, Little Rock, for appellant.

Gordon, Caruth & Virden, P.L.C., by: Ben Hinkle Caruth, Morrilton, for appellee Dorothy Flowers.

James Scott Adams, Morrilton, for intervenor Michael Flowers.

DONALD L. CORBIN, Justice.

This case raises the question of what notice must be given to a natural parent before the parent's right to his or her child may be terminated through adoption. Appellant Kevin Mayberry appeals the judgment of the Conway County Probate Court setting aside his adoption of James Walter Flowers, the minor child of Appellee Michael Flowers and the late Renee Flowers Mayberry. This case was certified to us from the Arkansas Court of Appeals as presenting an issue of significant public interest. Our jurisdiction is thus pursuant to Ark. Sup.Ct. R. 1-2(b)(4). The sole issue on appeal is whether Michael received notice of the pending adoption, in compliance with the requirements of due process. We conclude that he did not, and we affirm the probate court's ruling.

The record reflects that James was born on August 28, 1991, to Renee and Michael Flowers. Renee and Michael divorced on October 9, 1992, and Renee was awarded custody of James. Approximately one year later, Renee married Kevin Mayberry. Renee brought two children to the marriage, John and James, and three children were subsequently born to the Mayberrys. Kevin and Renee filed a joint petition to adopt James on June 14, 1996. In the petition, Renee gave her consent for James's adoption. The petition alleged that Michael's consent was not necessary because he had failed, without justifiable cause, to communicate with James and to contribute to James's support. Despite those allegations, the probate court appointed an attorney ad litem for Michael. In a report filed with the probate court, the attorney ad litem stated that on August 14, 1996, she had mailed a copy of the adoption petition by certified mail to Michael at his last known address. The letter was returned unclaimed. Thereafter, a warning order was published in the Petit Jean County Headlight on February 19, and 26, 1997. Michael made no appearance in the matter, and on June 16, 1997, the probate court granted a temporary order of adoption.

Only months after the adoption order was entered, Kevin and Renee separated. Renee filed for divorce on November 10, 1997. She also filed a motion to dismiss the adoption proceeding. While the divorce was pending, Renee was granted temporary custody of the five children, including James. She also applied for and was granted an order of protection from Kevin.

At some point in February 1998, Renee telephoned Michael and told him that Kevin was trying to adopt James, and that Michael needed to be at the courthouse for a hearing on February 13, 1998. On the date of the hearing, Michael arrived at the courthouse just as Renee was leaving. Renee informed him that Kevin had not shown up for the hearing and that the judge had dismissed the adoption. Michael asked Renee if he needed to do anything or fill out any paperwork to prevent the adoption. Renee assured him that the matter was finished.

Two months later, on April 28, 1998, Renee died. Following her death, Michael contacted Kevin and told him that he would be coming to get James, but that he would allow James to stay with Kevin until the 1998 school year was finished. That summer, Michael took custody of James. Since that time, James has lived with either Michael or Michael's mother, Appellee Dorothy Flowers.

On December 14, 1998, ten months after the adoption was dismissed and eight months after Renee died, Kevin filed a petition for writ of habeas corpus in the Conway County Chancery Court seeking custody of James. Kevin claimed that he was the adoptive father of James by virtue of the order entered on June 16, 1997. He asserted that the June 16 order was a final order that declared James to be the child of Kevin and Renee. He argued that the order dismissing the adoption was void, because it was entered more than ninety days after the decree that it purported to dismiss, in violation of Ark. R. Civ. P. 60(b). The chancery court denied Kevin's petition.

Kevin appealed to the court of appeals, which reversed the chancery court and upheld the adoption. See Mayberry v. Flowers, 69 Ark.App. 307, 12 S.W.3d 652 (2000). The court of appeals concluded that the June 16, 1997 decree, though styled "Temporary Order of Adoption," was actually a final order because it contemplated no further action by the probate court. Thus, the court of appeals held that the probate court's dismissal of the adoption petition, which was entered more than ninety days after the final decree, was void because the probate court lost jurisdiction to do so under Rule 60(b).

On April 17, 2000, approximately one month after the court of appeals's ruling, Michael filed a petition to set aside the adoption. In his petition, Michael asserted that he had not received notice prior to the order of adoption. He alleged that Renee had committed a fraud upon him and upon the probate court because she had knowledge of Michael's correct address at the time of the adoption. He further alleged that since the entry of the adoption decree, Kevin had not taken custody of James, and that the child had remained in Michael's custody for the previous two years. Michael asked that the adoption be declared void.

A hearing was held on May 15, 2000, after which the probate court issued an order setting aside the adoption on the grounds of fraud and a lack of notice to Michael. Relying on this court's decision in McKinney v. Ivey, 287 Ark. 300, 698 S.W.2d 506 (1985), the probate court found that the service of process did not meet the requirements set forth in Ark. R. Civ. P. 4(e). The court found that the warning order published in the local newspaper did not constitute valid service, because it was not accompanied by an affidavit stating that a diligent inquiry had been made and that the defendant's whereabouts were unknown. See Rule 4(f). Indeed, the court found that there was clear and convincing evidence showing that Kevin and Renee had practiced fraud upon Michael and the probate court by intentionally failing to serve notice on Michael, even though they knew his correct address and whereabouts. The court found further that, contrary to the assertions in the adoption petition, at no time had Michael abandoned the child, such that he would not have been entitled to notice prior to the adoption.

For reversal, Kevin argues that Michael's petition to set aside the adoption was untimely under Ark.Code Ann. § 9-9-216(b) (Repl.1998), because it was not brought within one year from the date of the adoption decree. Although he does not argue that the warning order published in the local newspaper complied with the notice and service requirements in Rule 4 and Ark.Code Ann. § 9-9-212(f) (Repl.1998), he contends that Michael had actual notice of the adoption within one year from the date of the decree. Thus, Kevin asserts that once the one-year period expired, Michael was barred from challenging the adoption on any ground, including fraud and lack of notice.

We review probate proceedings de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001); Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to determine what a statute means. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000). Thus, we are not bound by the trial court's construction; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. We begin our analysis of this appeal by viewing the relevant statutes.

Section 9-9-212 provides in pertinent part:

(a) Before any hearing on a petition, the period in which the relinquishment may be withdrawn under § 9-9-220 or in which consent may be withdrawn under § 9-9-209, whichever is applicable, must have expired. No orders of adoption, interlocutory or final, may be entered prior to the period for withdrawal. After the filing of a petition to adopt a minor, the court shall fix a time and place for hearing the petition. At least twenty (20) days before the date of hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the petitioner to (1) any agency or person whose consent to the adoption is required by this subchapter but who has not consented;....

(f) Notice shall be given in the manner appropriate under rules of civil procedure for the service of process in a civil action in this state or in any manner the court by order directs. Proof of the giving of the notice shall be filed with the court before the petition is heard. Where consent is not required, notice may be by certified mail with return receipt requested. [Emphasis added.]

Section 9-9-216(b) provides:

Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period. [Emphasis added.]

Kevin contends that because of the great need...