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Lagios v. Goldman

Supreme Court of Arkansas

February 18, 2016

THOMAS L. LAGIOS, APPELLANT
v.
KENNETH MITCHELL GOLDMAN AND DEANNE FIELDS GOLDMAN, APPELLEES

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[Copyrighted Material Omitted]

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          APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT. NO. PR-2012-106-5. HONORABLE LARRY W. CHANDLER, JUDGE.

         Depper Law Firm, Inc., by: Robert L. Depper, Jr., and Caleb Baumgardner, for appellant.

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

         PAUL E. DANIELSON, Associate Justice. Special Justice LONA MCCASTLAIN joins in this opinion. BAKER, J., concurs. HART, J., dissents. WOOD, J., not participating.

          OPINION

         

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          PAUL E. DANIELSON, Associate Justice.

         Appellant Thomas L. Lagios appeals from a decree of adoption entered in the Circuit Court of Columbia County, granting the adoption of his biological daughter to appellees Kenneth Mitchell Goldman and Deanne Fields Goldman. On appeal, Lagios contends that (1) the circuit court never acquired jurisdiction of the case due to the Goldmans' failure to comply with relevant adoption statutes, (2) the circuit court abused its discretion in allowing the adoption without his consent, (3) the circuit court abused its discretion in sua sponte reopening the record to allow the Goldmans to introduce further evidence, and (4) the evidence does not support the circuit court's finding that the adoption is in the best interest of the child. We disagree with each of Lagios's assertions and affirm the adoption decree.

         Our jurisdiction of this case is pursuant to Arkansas Supreme Court Rule 1-2(e) (2015), as we granted a petition for review filed by Lagios after the Arkansas Court of Appeals affirmed. See Lagios v. Goldman, 2015 Ark. App, 329, 463 S.W.3d 726. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. See, e.g., Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585.

         The child at issue in this case, whom we refer to as M., was born in February 2012. When M. was born, the biological mother was twenty-eight years old and unmarried. She was cohabiting with Lonnie Dan Henson, who was sixty-five years old at the time. Henson was present for M.'s birth and was listed as the father on her birth certificate. M.'s biological mother died on March 12, 2012, when M. was approximately one month old.

         Henson initially attempted to care for M. himself, but, for various reasons, he was unable to do so. Prior to M.'s birth, he had become acquainted with appellee Deanne Goldman, who owned an antique mall and flea market that Henson frequented. According to her testimony, Henson had come to her store shortly before M.'s birth, introduced M.'s mother as his girlfriend, and shared that they were expecting a baby. Upon the mother's death, Henson contacted Deanne, who became concerned for M. because, as she put it, Henson weighed over three hundred pounds, he was on oxygen and a walker, he had been in the hospital with chest pains, he was sixty-five years old, and he had a newborn baby. Deanne tried to help Henson acquire necessary baby equipment, such as a crib. She offered to care for M. toward the end of March because Henson was not feeling well. Henson left M. in Deanne's care starting March 30, 2012. While this arrangement was originally intended to be temporary, Henson was unable to resume care of the child. On May 31, 2012, Henson asked Deanne to adopt M.

         

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On June 1, 2012, Deanne filed a guardianship petition in the Probate Division of the Columbia County Circuit Court. It was granted the same day. According to Deanne's testimony, she initially petitioned for guardianship rather than adoption because Henson wanted to pursue a medical-malpractice lawsuit on M.'s behalf. However, Henson later indicated that he wanted Deanne to pursue the lawsuit and that he wanted to " remain [the] beneficiary of her money." Deanne declined to pursue the lawsuit.

         On June 20, 2012, appellant Thomas Lagios filed a petition to establish paternity and custody in the Domestic Relations Division of the Union County Circuit Court. Lagios, a sixty-year-old friend of Henson's, asserted that both he and Henson believed that he might actually be M.'s biological father. He also averred that, until recently, he had enjoyed regular visitation with M. Lagios later testified that he met M.'s mother through Henson, who arranged a " [b]lind date," and that he had sexual intercourse with her approximately three times around the time that M. was conceived.[1] He also stated that he had seen M. " [a] bunch of times" at Henson's house. A DNA rest performed on August 2, 2012, concluded that Lagios's probability of paternity was 99.992%.

         On September 6, 2012, Deanne and her husband jointly filed a petition for adoption in the Probate Division of the Columbia County Circuit Court. Lagios filed a response contesting the adoption. On January 14, 2013, the Union County Circuit Court, Domestic Relations Division, entered an order declaring Lagios to be M.'s biological father and transferring the custody portion of the Union County case to Columbia County to be joined with the pending adoption case.

         At the adoption hearing, held on June 28, 2013, the Goldmans attempted to introduce a home study performed on their home by Deborah Rago, a licensed, certified social worker. Lagios objected on the basis that Rago was not present to be cross-examined and that the home study contained hearsay.[2] The circuit court allowed the Goldmans to proffer the home study. At the conclusion of the hearing, the court " recessed" for an opportunity to review the parties' arguments regarding the home study and allowed the parties to file posttrial briefs. In his brief, Lagios asserted that the Goldmans had failed to comply with various adoption statutes, including the requirement of a home study. The Goldmans argued that the court could reopen the case in order to hear Raga's testimony and accept the home study into evidence. Additionally, in a letter to the court, the Goldmans specifically requested a hearing for this purpose. On August 9, 2013, the circuit court entered an order reopening the record " for the purpose of receiving additional evidence relevant to the issues involved in this litigation," which the court characterized as " life altering." Lagios opposed this order in a motion to reconsider. At a subsequent hearing on August 30, 2013, the circuit court stated that the issue was " so grave and of such importance" that it would constitute an injustice not to allow the record to be

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completed. The court heard Raga's testimony and accepted the home study into evidence.

         The circuit court entered its decree of adoption on September 17, 2013. The court concluded that Lagios was not a fit and proper person to have custody of M. and that the Goldmans were fit and proper persons to raise her. The court further found that the Goldmans had substantially complied with all relevant adoption statutes. Lagios now appeals.

         We begin with our standard of review. Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child. See In re Adoption of] J.P., 2011 Ark. 535, 385 S.W.3d 266. We will not reverse a circuit court's decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the circuit court to judge the credibility of the witnesses. See id. Personal observations of the court are entitled to even more weight in cases involving the welfare of a young child. See id.

         I. The Circuit Court's jurisdiction

         For his first point on appeal, Lagios contends that the circuit court never acquired jurisdiction of this case due to the Goldmans' failure to comply with various adoption statutes. Specifically, he alleges deficiencies with respect to the following statutes.

         A. Arkansas Code Annotated Section 9-9-210

         First, Lagios asserts that the Goldmans' petition for adoption failed to comply with Arkansas Code Annotated section 9-9-210 because it failed to state the following:

(4) The full name, age, place, and duration of residence of the petitioner;
(5) The marital status of the petitioner, including the date and place of marriage, if married;
(6) That the petitioner has facilities and resources, including those available under a subsidy agreement, suitable to provide for the nurture and care of the minor to be adopted and that it is the desire of the petitioner to establish the relationship of parent and child with the individual to be adopted;
(7) A description and estimate of value of any property of the individual to be adopted;
(8) The name of any person whose consent to the adoption is required, but who has not consented, and facts or circumstances which excuse the lack of his normally required consent, to the adoption; and
(9) In cases involving a child born to a mother unmarried at the time of the child's birth, a statement that an inquiry has been made to the Putative Father Registry and either:
(A) No information has been filed in regard to the child born to this mother; or
(B) Information is contained in the registry.

Ark. Code Ann. § 9-9-210(a)(4)-(9).

         We first note that, for reasons explained later in this opinion, Lagios's consent to the adoption was not required. Additionally, in accordance with Arkansas Code Annotated section 9-9-206, consent to this adoption was not required of any other person. Therefore, the Goldmans did not fail to comply with section 9-9-210(a)(8). Moreover, as the Goldmans point out, the need for an inquiry into the putative-father registry had already been obviated when the petition was filed; DNA testing had

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already established that Lagios was M.'s biological father. Accordingly, the Goldmans did not fail to comply with section 9-9-210 (a)(9).

         With respect to the other four items, the Goldmans respond that any information missing from their petition was introduced and made part of the record through testimony, subsequent pleadings, and exhibits. As they point out, this court has upheld the validity of an adoption petition where there was substantial compliance with the statutory requirements. See Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927). In Arkansas Department of Human Services v. Couch, 38 Ark.App. 165, 171, 832 S.W.2d 265, 269 (1992), our court of appeals explicitly rejected the argument that a petition for adoption was fatally defective for failure to include all of the information required by section 9-9-210: " Other statutory information required was introduced by the pleadings and testimony of the parties. We find there was substantial compliance with the statutory requirements and the petition was not fatally defective." The same can be said here.

         It is true that this court has held that adoption statutes are to be strictly construed and applied because they are in derogation of the common law. See,e.g..Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). However, we have simultaneously held that an adoption decree is void unless all " jurisdictional" requirements " appear in the record." Id. at 79, 827 S.W.2d at 144; see alsoMinetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930). We have limited our strict-compliance standard to those statutory requirements that are jurisdictional in nature-specifically and primarily, those having to do with consent. SeeMartin v. Martin, 316 Ark. 765, 875 S.W.2d 819 (1994); Swaffar, 309 Ark. 73, 827 S.W.2d 140; In re Adoption of Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990) ; In re Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986). In addition, we have held that statutory requirements--even jurisdictional ones--are ...


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