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Thompson v. Brunck

Court of Appeals of Arkansas, Division III

March 14, 2018



          Lucas Law Firm, PLLC, by: Mark C. Lucas, Jr., for appellant.

          Heimer Law, PLLC, by: Justin Heimer, for appellees.

          BRANDON J. HARRISON, Judge.

         This appeal asks whether an adoption can stand. The circuit court allowed Luke and Amber Brunck to adopt Kristal Thompson's child, N.R.D. Kristal challenges that decision, arguing that she proved that her signature on the "Relinquishment of Parent and Child Relationship and Consent to Guardianship and Adoption"-which was attached to the Bruncks' petition to adopt N.R.D.-was procured by fraud (misrepresentation). Because the evidence proves that Thompson did not voluntarily sign a relinquishment affidavit, the circuit court clearly erred in failing to set the adoption aside.

         I. Facts

         The papers of record, and testimony taken during an April 2017 hearing on Kristal's petition to set the adoption aside reveal the following. Kristal gave birth to her daughter, N.R.D., while living in Houston, Texas. More than one year later, Kristal contacted Amber Biggerstaff, who lived in northwest Arkansas; the two had known each other since Kristal was three. According to Kristal, Amber offered to help her get on her feet, so Kristal and one-year-old N.R.D. lived with Biggerstaff for a week or two while Kristal looked for work. Kristal said that Amber was "very helpful" whenever she needed to work at night and that Amber "loved [N.R.D.] and she loved me." Kristal said she left for Jacksonville, Arkansas on 27 January 2017 to "get myself together, get financially stable, and then go back and get her [daughter]." The plan, according to Kristal, was for N.R.D. to stay with Amber temporarily.

         During the hearing Kristal also testified that she signed an affidavit on 27 January 2017, which Amber had asked her to sign. Kristal said she thought the subject was to create a temporary guardianship with the purpose of authorizing Amber to take N.R.D. "to the doctor or daycare, put her on health insurance, take care of her better." She believed the guardianship was to last for six months. Kristal said that Amber was present when she signed the document-which she thought was a guardianship paper, not an adoption-related paper-but did not receive a copy. Kristal maintained that no one watched her sign the affidavit; and no one placed a notary seal on the affidavit in her presence. According to Kristal, the affidavit she signed already had a notary stamp on it, and "Jessica Martin" was the name that appeared as the notary on the same page that Kristal had signed. In other words, the document Kristal signed on January 27 was notarized by Jessica Martin before Kristal signed it. Kristal told the court that the document she signed on January 27 was not the "Relinquishment of Parent and Child Relationship and Consent to Guardianship and Adoption" that ended up being attached to the Bruncks' petition to adopt N.R.D.

         This segues to a point that consumes a lot of words in the parties' briefs, which is that a copy of the relinquishment affidavit was notarized by two people: Jessica Martin and Amber Biggerstaff. It appears that Amber's notarization was an attempt to save the premature Martin notarization, which everyone agrees occurred outside of Kristal's presence. Kristal, however, said that the affidavit that has Amber's notarization attached to it was not the same paper (content wise) that she signed on January 27. Kristal explained that Amber "probably had me sign the other document and then scanned my signature onto this one [the relinquishment of consent]." Kristal also said that she did not see a ten-day deadline to revoke the relinquishment of her right to consent to an adoption in the document that she signed, and that she would have not signed it if she thought it could terminate her parental rights. Again, she thought the document gave Amber a "partial guardianship for a specific amount of time." Kristal acknowledged that she and Amber had talked about adoption, but adoption was not at issue when the affidavit was filed, according to Kristal.

         During the April 2017 hearing Kristal also informed the court that she had texted Amber about the possibility of Amber and her husband adopting N.R.D. so the child's biological father could not try to take her away from Kristal. Apparently N.R.D.'s father was threatening "to take her to court" to get custody. Kristal agreed in a 9 February 2017 text message that Amber could adopt N.R.D. The court accepted as evidence, without any objection, long text exchanges between Kristal and Amber. Here is one that started on Thursday, February 9, at 12:44 p.m.:

Kristal: Hey, [N.R.D.'s] dad just text me today asking about her and I'm done fighting with him about her so I think he's gonna try to fight me for her.
Amber: What would u like me to do? He has no rights first off. I have the guardianship paperwork but only way he wouldn't be able to have a chance at her is if I file it with the court clerk for adoption. We both know u are going to get her back but he doesn't have to know anything. If I file to adopt her he could never get her ever again. When u would want her back when u get settled i would just put her in ur guardianship. Basically same as we have it now but in the legal world she would be legally attached to junior [Biggerstaff's husband] and I. This would be the only way we could stop him legally. Once u would say okay I'd file it and he would be stopped. His rights would be stripped. If u didn't do it this way he will always be able to go file and to have visitation or file to get permanent custody due to saying you have no way to care for her. You don't want that babe. We do this all the time for like younger girls that have a baby will sign the baby over to baby moms parents so the father of the baby could never have a chance to take the child away from the young mom due to her not having her own house or anything.
Kristal: Yeah go ahead and file it. .
. . .
Amber: Jokes on him cause he done f****d with the wrong person!! Lol this is what I do for a living. I can also send him a copy of the adoption order so he knows from a legal office and judge. If he asks what the hell u did that for just say it was best for [N.R.D.] and u wanted too. Boom done and over for the rest of her life. . . . .
Kristal: Okay cool. Does [N.R.D.'s] last name have to be changed[?]
Amber: A judge wouldn't look at u bad for wanting her to be adopted by us at all either they would think better of u for putting her first. The judge and I go to lunch all the time so I'll have him do it quickly and send kourtni and him the papers asap No it doesn't have to be changed at all. Legally she would be listed as Biggerstaff but I don't have to change her name on social security cards or birth certificate ever if U don't want us too. [child's name] and [child's name] are Biggerstaff's legally but social and birth certificates are still their old names.
Kristal: Okay cool that works. Thank you so much momma bear.
Amber: No problem babe. I will always have ur back and [N.D.R.'s] too. Just send them a text saying "Listen I knew I was struggling and needed to get myself together so I made the decision to have Aunt Amber adopt [N.D.R.] before I left Fayetteville. It was the best thing for [N.D.R.] If you need or want details u c any info." An call her at [Amber's cell phone #] but legally she's been adopted and it's been a done deal for over 3 weeks now. U will have to take it up with Amber if u need
Kristal: Okay I will
Amber: Getting settled at ur dads house Make them think u did it before u left legally and u didn't want to tell them she was adopted already because u didn't want to upset anyone while u were I have hi address still so I will send him papers. [c]hild's parents automatically is considered abandonment in the court of law. Since he hasn't seen her in a year the rights he could of had were voided and Also, if he asks how u were able to sign her to be adopted without him being notified tell him after a year of no visits or contact from either one of a c legally he abandoned his rights to her

         The next day, February 10, more texts were exchanged:

Kristal: I changed my mind about doing the adoption, but I'm not gonna tell [N.D.R.]'s dad any different
Amber: Kristal I filed it already yesterday afternoon. It's nothing different than what we already are doing.
Kristal: Aww well dang. Okay.
Amber: We can keep it between us and no one else if u are worried about that. My lips are sealed. Nothing has changed. She is still your little baby and will always be. Everything is the same as it was yesterday morning. We just did it to keep anyone from taking her from you while u are getting ur stuff together. That's it. No one not dhs not her dad not anyone can take her from u for the rest of her life. No worry on ur part.
Kristal: Okay that works
Amber: I'm sorry love. I didn't know any different. At least this way u have no worries with her or will u ever have to in the future. Love you. Don't worry about it. Nothing has changed. I will never tell a sole because no one needs to know nor will they ever know because nothing will change. Did something happen that made u change ur mind? Something worry u?
Kristal: I'm worried that I won't have the title of her mother legally.
Amber: Baby it doesn't work like ...

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