Roberts v. Swim

• Decision Date: 26 March 1980
• Docket Number: No. CA,CA
• Citation: 268 Ark. 917,597 S.W.2d 840
• Parties: Charles Wayne ROBERTS, Appellant, v. James Kenneth SWIM, Appellee. 79-45.
• Court: Arkansas Court of Appeals

Page 840

597 S.W.2d 840

268 Ark. 917

Charles Wayne ROBERTS, Appellant, v. James Kenneth SWIM, Appellee.

No. CA 79-45.

Court of Appeals of Arkansas.

March 26, 1980.

Rehearing Denied April 30, 1980.

Released for Publication by the Court of Appeals April 30, 1980.

Baim, Baim, Gunti, Mouser & Bryant by David K. Gunti, Pine Bluff, for appellant.

Eilbott, Smith, Eilbott & Humphries by Alan R. Humphries, Pine Bluff, for appellee.

HOWARD, Judge.

This is an appeal, by the natural father of the minor involved, from a probate court order approving the adoption petition of the appellee, the child's stepfather, without requiring the consent of the natural father. The trial court found that consent of the natural father was not required in view of the fact the natural father had for a period of at least one year, failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by the final divorce decree involving the father and his former wife. See: Revised Uniform Adoption Act, Ark.Stat.Ann. § 56-201, et seq., (Repl.1977 and Supp.1979); Brown v. Fleming, 266 Ark. 42, 586 S.W.2d 8 (Arkansas Court of Appeals, 1979).

Section 56-206 provides:

"(a) Unless consent is not required under Section 7 (§ 56-207), a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:

(1) the mother of the minor;" (Emphasis supplied)

It is settled law that statutory provisions involving the adoption of minors are strictly construed and applied. Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953); Norris v. Dunn, 184 Ark. 511, 43 S.W.2d 77 (1931); Breithaupt v. Parker, Referee, 213 Ark. 837, 213 S.W.2d 382 (1948). See also: Nelson et al. v. Shelly et al., Ark., 600 S.W.2d 411 (Arkansas Court of Appeals, 1980).

The mother did not join in the adoption petition with appellee for the adoption of his stepchild; nor is there a written consent in the record by the mother registering her approval of the adoption. Moreover, neither the trial court's adoption order nor the oral findings announced from the bench make any reference to the mother as having indicated her approval of the adoption. While the mother testified during the adoption proceedings, she never registered her consent.

It is plain the trial court was without jurisdiction to proceed in this matter without the mother's consent.

While we reverse the trial court on the ground that the mother of the minor did not execute a written consent, we make the following observation.

In Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979), the Supreme Court in articulating the heavy burden cast upon one wishing to adopt a child against the consent of a parent quoted from 2 Am.Jur. 2 Adoption § 60:

" '. . . In order to grant an order or decree of adoption in opposition to the wishes and against the consent of the natural parent, the conditions prescribed by statute which make that consent unnecessary must be clearly proven and the statute construed in support of the right of the natural parent. Natural...