Nelson v. Shelly, CA

• Decision Date: 05 March 1980
• Docket Number: No. CA,CA
• Citation: Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ark. App. 1980)
• Parties: William A. NELSON and Emma L. Nelson, Appellants, v. Helen SHELLY and Marvin Shelly and Arkansas Department of Social Services, Appellees. 79-195.
• Court: Arkansas Court of Appeals

Page 411

600 S.W.2d 411

268 Ark. 760

William A. NELSON and Emma L. Nelson, Appellants, v. Helen SHELLY and Marvin Shelly and Arkansas Department of Social Services, Appellees.

No. CA 79-195.

Court of Appeals of Arkansas.

March 5, 1980.

Review Denied April 16, 1980.

Released for Publication by the Court of Appeals.

H. Ray Hodnett, Fort Smith, for appellants.

James C. Hudson, Fort Smith, for appellees.

HOWARD, Judge.

The issue presented is whether the trial court erred in denying appellants' motion to intervene in a consolidated proceeding involving the Arkansas Department of Social Services seeking guardianship with power to consent to the adoption of Anthony Lee Duncan, the illegitimate child of Earnestine Duncan, and a petition filed by Marvin and Helen Shelly to adopt the minor.

The relevant facts are: Anthony was born on October 26, 1977, and his mother delivered custody of Anthony, within twenty (20) days after his birth, to William and Emma Nelson, appellants, who have had exclusive custody since that time.

On July 5, 1978, the Arkansas Department of Social Services filed its petition, in the Crawford County Probate Court, for appointment of guardianship with power to consent to the adoption of Anthony.

On September 11, 1978, the mother executed a written consent for the Shellys to adopt Anthony. On the same day, the Shellys filed their petition to adopt Anthony in the Probate Court of Crawford County.

On December 27, 1978, Earnestine gave the Nelsons a written consent for the adoption of Anthony. On December 29th, she executed a written revocation of the consent she had given the Shellys.

On January 8, 1979, appellants filed their petition to intervene in the consolidated proceedings involving the Shellys and the Department of Social Services. The trial court in denying appellants' motion found:

"1. That the proposed intervenors . . . are not necessary parties . . . and their interest, if any, can be adequately protected in a separate proceeding.

"4. That it is in the best interest of Anthony Lee Duncan that the petition of Arkansas Social Services for guardianship with power to consent to the adoption of said minor without the consent of or notice to the natural parents be granted."

In our recent case of St. Clair v. Haun, 267 Ark. 75, --- S.W.2d --- (1979), we made the following relevant comment:

"Prior to the adoption of the new rules, the rule in Arkansas was that necessary parties may intervene as a matter of right, but the question of permitting others to intervene lies solely within the discretion of the trial court. . . . Intervention is not based upon any common law right, but rather is based on the principle that a party should be permitted to do what the court would require to be done if it knew that the intervenors were necessary parties to the proceedings." ¹

See: Pulaski County Board of Equalization v. American Republic Life Insurance Company, 233 Ark. 124, 342 S.W.2d 660 (1961); Board of Directors of St. Francis Levee District v. Raney, 190 Ark. 75, 76 S.W.2d 311 (1976).

It is plain that appellants have stood in loco parentis for Anthony since he was twenty (20) days old. Appellants' custody has been exclusive and uninterrupted for a period of time exceeding one year. Appellants are the only parents that the child has any knowledge of. Moreover, the appellants received a written consent for the adoption of Anthony. Under these...