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Miller v. Moore

Court of Appeals of Arkansas, Division III

November 15, 2017

BROOKE ASHLEY MILLER AND KERRY COLEMAN APPELLANTS
v.
JASON EDWARD MOORE AND MANESSEH BLYTHE MOORE APPELLEES

         APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17PR-16-261] HONORABLE GARY COTTRELL, JUDGE

          Melikian Law Firm, by: Scarlett R. Melikian and Patrick D. Melikian, for appellant Brooke Ashley Miller.

          Greg Crumpton, P.A., by: Greg Crumpton; and Wilson & Haubert, PLLC, by: Stefan K. McBride, for appellant Kerry Coleman.

          Keith M. Kannett, for appellees.

          DAVID M. GLOVER, Judge

         This is an adoption case. Brooke Ashley Miller is the biological mother of B.A.M., who was approximately four years old at the time of the adoption. Kerry Coleman is purportedly the child's biological father.[1] The adoptive parents are Jason and Manesseh Moore, and Jason is Brooke's first cousin. The adoption decree was entered on November 2, 2016. Brooke and Kerry each filed timely notices of appeal challenging the adoption on several bases. We are without appellate jurisdiction to consider the arguments raised by Brooke in this appeal and dismiss her portion of the appeal; however, Kerry's issues are properly before us and have convinced us this case must be remanded to the trial court for further proceedings consistent with this opinion.

         It is undisputed Brooke initiated this adoption by contacting Jason Moore and asking him and Manesseh to adopt B.A.M. On October 4, 2016, Brooke signed a document entitled Consent to Adoption & Waiver of Service. B.A.M. has been living with the Moores since that date. Brooke did not begin her attempts to withdraw her consent until after the ten-day period for withdrawal had expired. On October 31, 2016, the Moores filed their petition for adoption and attached the consent and waiver executed by Brooke.

         The petition was presented to the trial court on November 2, 2016. Neither Brooke nor Kerry was present. Brooke had waived her rights to notice along with her consent to the adoption, but Kerry alleges he had no idea the adoption was even in motion. Before the court was Brooke's consent and waiver and representations that the child's father was unknown and that a search of the putative-father registry had revealed nothing. A November 2, 2016 letter from the Arkansas Department of Health certified that there was no information in the registry regarding a putative father for B.A.M. The adoption petition was granted and the decree entered on November 2, 2016.

         On November 8, 2016, Brooke filed an affidavit and revocation of consent to adoption. On November 14, 2016, which was within ten days of entry of the decree, Brooke filed a motion to vacate the decree of adoption pursuant to Rule 60(a) of the Arkansas Rules of Civil Procedure. On November 21, 2016, Brooke filed her notice of appeal from the November 2, 2016 adoption decree; Kerry filed a motion to set aside the decree of adoption pursuant to Rule 60(a); and Kerry also filed a notice of appeal from the November 2, 2016 decree. In his verified motion to set aside the decree, Kerry averred in part that he is B.A.M.'s biological father and "was adjudicated the same in the Circuit Court of Lonoke County, in Case No. 43DR-2013-502." On November 29, 2016, Brooke and Kerry filed a joint petition for an expedited motion-hearing date, which was in addition to e-mail correspondence that preceded the motion attempting to get a hearing date for the motions. No hearing was ever set, and the trial court never ruled on either motion. These appeals followed.

         We begin with Brooke's appeal, which raises six points: 1) the trial court failed to obtain personal jurisdiction over Brooke; 2) the trial court erred in failing to hold a hearing in accordance with Arkansas Code Annotated section 9-9-212; 3) the trial court erred in finding the minor child's father was unknown, absent documentary evidence, and that his consent was not required, due to the fraudulent concealment on the part of the Moores and their counsel; 4) the trial court erred when it found that a valid consent had been obtained from the minor child's mother and that no person had made any objection to the entry of a final decree of adoption, due to the fraudulent concealment on the part of the Moores and their counsel; 5) the Moores failed to comply with the mandatory, statutory requirements before entry of the final decree; and 6) the trial court erred when it found the Moores met their required burden of proof to show that the adoption was in the best interest of the minor child. We lack appellate jurisdiction to address these issues.

         All of the arguments Brooke makes to our court in her appeal were contained in her motion to vacate pursuant to Rule 60(a) of our rules of civil procedure, which she filed within ten days from the date of entry of the adoption decree. Arkansas Rule of Appellate Procedure-Civil 4(b) provides in pertinent part:

(b) Extension of Time for Filing Notice of Appeal.
(1) Upon timely filing in the circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court's findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
(2) A notice of appeal filed before disposition of any of the motions listed in paragraph (1) of this subdivision shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment, decree, or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the ...

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