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Qualheim v. Roush

Court of Appeals of Arkansas, Division II

February 13, 2019

TAMBRE QUALHEIM APPELLANT
v.
APRIL ROUSH AND JASON ROUSH APPELLEES

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JPR-17-62] HONORABLE PAMELA HONEYCUTT, JUDGE

          Branch, Thompson, Warmath & Dale, P.A., by: Adam H. Butler, for appellant.

         Owens, Mixon & Heller, P.A., by: W. Lance Owens, Aaron Heller, and Haley Smith, for appellees.

          Klappenbach and Whiteaker, JJ., agree.

          BART F. VIRDEN, Judge

         Tambre Qualheim seeks to reverse the Craighead County Circuit Court's denial of her motion to set aside the adoption decree regarding her biological child, SR. We affirm.

         I. Relevant Facts

         Jason Roush and Tambre Qualheim are the biological parents of SR (born 9/28/10). In 2011, Jason and Tambre were divorced by order of the Poinsett County Circuit Court.[1] In 2012, Jason married April. In 2015, the circuit court awarded Jason legal custody of SR and granted Tambre visitation subject to her submission to drug testing. On February 15, 2017, the Roushes filed a petition for adoption in the Craighead County Circuit Court requesting that April be named the parent of SR.[2] In the petition, the Roushes asserted that Tambre's consent to adoption was not necessary because she had abandoned SR and that for a period of at least one year, Tambre had failed significantly and without justification to communicate with SR or provide for her care and support. The Roushes contended that because Tambre had abandoned SR, she was unreasonably withholding consent to adoption. On the same day, the summons regarding the petition for adoption was issued. The summons stated that Tambre had thirty days to respond with a written answer or motion and that failure to respond would result in a default judgment. Proof of service was returned showing that the complaint and summons were hand delivered to Tambre on February 21, 2017.

         Also on February 15, Jason filed a motion to modify or suspend the visitation set out in their ongoing domestic-relations case. In the petition, Jason asserted that a change of circumstances had occurred; namely, that Tambre had refused multiple drug screens and that she had falsely stated that her visitation was being supervised, which was required if she refused to submit to drug screening. Jason requested that the court order immediate drug testing. The notice of hearing was issued on February 15, and it erroneously stated that a hearing on the matter was scheduled for March 6 at 9:30 at the Craighead County Courthouse. In fact, because the case was a continuation of the divorce proceedings, the hearing was to be held at the Poinsett County Courthouse.

         On March 6, 2017, Tambre arrived late to the hearing due to the mistake in the summons. In the order entered the same day, the Poinsett County Circuit Court found that Tambre had failed to appear and that she was ordered to submit to urine, hair-follicle, and nail testing no later than March 9. The circuit court found that if she failed to submit to testing, she would be deemed to have failed the test, and her visitation would be suspended.

         On March 24, 2017, the decree of adoption was entered by the Craighead County Circuit Court. In the order, the circuit court found that Tambre had been served with the adoption petition by process server and that she had not responded. The circuit court also found that Tambre's consent to the adoption was not necessary because she had unreasonably withheld her consent contrary to SR's best interest.

         On August 3, 2017, Tambre filed a motion to set aside the decree. In her motion she stated that on February 15, 2017, the Roushes filed a petition to suspend or modify the visitation set out in their continuing domestic-relations case in the Poinsett County Circuit Court, and on the same day the Roushes also filed a petition for adoption in the Craighead County Circuit Court. The notice of hearing for the petition to modify visitation erroneously indicated that the hearing would be held at the Craighead County Courthouse, and Tambre was late to the hearing because she had relied on the summons and initially had gone to the wrong courthouse. Tambre asserted that when she appeared at the hearing on the motion to modify visitation, she believed she was there, in part, to contest the petition to adopt. Tambre explained that the circuit court held the hearing when she arrived, that she agreed to submit to drug testing, that she was ordered to refrain from clipping her nails, and that her nails were photographed. Tambre stated that she "passed" the drug screen; however, after the hearing, the Poinsett County Circuit Court erroneously entered an order finding that Tambre had failed to appear.

         Tambre asserted that at the adoption hearing on March 24, the Roushes misrepresented to the court that she had failed to answer the adoption petition or otherwise appear and that she was in default. Tambre argued that

[p]etitioners manipulated the procedural status of the case(s) to obtain a decree of adoption on March 24, 2017, via default despite the fact that Tambre Qualheim did not consent, appeared on March 6, 2017, for the only hearing for which she was given notice, thought she was there to also defend against the adoption petition and submitted herself ...

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