APPEAL
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT
[NO. 66GPR-17-39] HONORABLE ANNIE HENDRIC KS, JUDGE
Wilson
& Associates, P.LLC, by: H. Keith Morrison, for
appellants.
Weimar
Law Office, by: DeeAnna Weimar, for appellee.
WAYMONDM.BROWN, JUDGE.
Appellants
appeal from the circuit court's order denying their
motion for reconsideration of its ruling that Justin
Stanley's consent to adoption was required. On appeal,
appellants argue that (1) Stanley did not meet any of the
requirements of Arkansas Code Annotated section
9-9-206[1] so that his consent was not required; (2)
Stanley did not meet his burden under the requirements of
Arkansas Code Annotated section 9-9-207, [2]even if
registering with the putative father registry is a
"similar acknowledgement of paternity" under
Arkansas Code Annotated section 9-10-120(a);[3] and (3) Stanley
was not "thwarted" in his efforts to comply with
the mandatory requirements of Arkansas Code Annotated section
9-9-206. We affirm.
Stanley
and Taylor Schmidt, both residents of the State of Indiana,
met on a dating app on June 6, 2016, and dated for a little
over a month before ending the relationship. B.D. was
conceived on or around June 9, 2016. Stanley learned that
Schmidt was pregnant on July 10, 2016. Schmidt ceased
communication with Stanley on July 19, 2016.[4] Stanley attempted
to contact Schmidt directly and indirectly through family
members, ultimately learning in November 2016 that she had
been incarcerated, though had not been advised where she was
incarcerated.[5]
On
February 22, 2017, Schmidt told Stanley that she was giving
B.D. up for adoption and had already picked out a family.
Stanley registered with Indiana's putative father
registry on February 24, 2017. On March 8, 2017, Stanley
filed a verified petition to establish paternity in Ripley
County Circuit Court in the State of Indiana. B.D. was born
on March 9, 2017. The Hamilton Superior Court in Indiana
entered a judgment and order terminating Schmidt's
parental rights to B.D. pursuant to her signed consent on
March 13, 2017. The order stated that the identity of
B.D.'s putative father was "unknown, the biological
mother having failed or refused to identify him." It
gave legal custody of B.D. to Adoptions of Indiana, which has
"full authority" under Indiana statute to authorize
out-of-state placement and to permit prospective adoptive
parents to return to their state with the child, after
compliance with the Interstate Compact for the Placement of
Children has been achieved. Adoptions of Indiana placed B.D.
with appellants on the same day the order was entered and
they returned to Arkansas.
On
March 22, 2017, appellants filed a petition to adopt B.D. in
Arkansas.[6] They asserted they had cared for B.D.
since his birth. The petition stated that Stanley was
"not a suitable caretaker[, ]" having
"expressed a desire for the pregnancy to be terminated[,
]" and that Schmidt had agreed to sign a waiver of
service of summons and a consent to adoption. On the same
date, appellants filed a petition for waiver of home study.
On March 28, 2017, Schmidt filed a waiver of service and
consent to adoption in which she stated that the document
represented her "full and free consent to the
adoption" based on her stated belief that said adoption
was in B.D.'s best interest.
On
April 17, 2017, Stanley filed an alternative answer to the
appellants' petition for adoption denying that he was not
a suitable caretaker as alleged and affirmatively asserting
that he (1) was registered with Indiana's Putative Father
Registry as of February 24, 2017; (2) had filed a verified
petition to establish paternity in the appropriate Indiana
circuit court on March 8, 2017; and (3) "[stood] able
and ready to support and nurture" B.D. Accordingly, he
requested denial and dismissal of the adoption petition.
Appellants
filed an amended petition for adoption or guardianship, in
the alternative, on May 5, 2017. Therein, they asserted a
need for guardianship of B.D. due to his incapacity by virtue
of his minority. Additional factual assertions not in the
original petition were that Stanley (1) refused to provide
any support for prenatal care of B.D. despite knowing
Schmidt's location, (2) "engaged in a partying
lifestyle and had sexual relations on a casual basis creating
an environment which is unwholesome and unfit" for B.D.,
(3) was "engaged in a money-making scheme in an effort
to profit off of the birth of the minor child[, ]"and
(4) abandoned B.D. within the meaning of Arkansas law.
Stanley answered appellants' amended petition on May 9,
2017, responding to the appellants' assertions regarding
adoption only; he failed to address any of the assertions in
support of a guardianship.
Appellants
then filed a second amended petition for adoption on June 2,
2017, in which they incorporated all the allegations from
their March 22, 2017 petition and their May 5, 2017 amended
petition. Additional facts not previously included pertained
to their marriage and home. They attached an adoption home
study[7] and update as well as the Hamilton
Superior Court's March 13, 2017 judgment and order.
Stanley's
answers to appellants' June 5, 2017 requests for
admission were filed on June 20, 2017. Of pertinence, Stanley
(1) denied that he had no significant custodial, personal or
financial relationship with B.D., averring that he had filed
a petition for paternity prior to Schmidt
leaving;[8] (2) affirmatively pled that he had no
personal relationship with B.D. because Schmidt was
incarcerated from July 2016 to December 2016 and
"refused to reveal her whereabouts" upon her
release; (3) admitted his knowledge of Schmidt's intent
to place B.D. for adoption, further averring that he
"went to the putative father registry and tried to stop
the adoption"; and (4) denied that he made no attempt to
financially support Schmidt during the pregnancy.
Stanley
filed a motion for directed verdict on July 10, 2017. He
stated that he had filed a verified petition to establish
paternity in an Indiana circuit court on March 8, 2017, prior
to B.D.'s birth. Attached as an exhibit thereto were his
DNA results, which confirmed a 99.99% probability that he is
the biological father of B.D. Furthermore, he asserted that
Schmidt "took off with B.D. "and came to Arkansas
not disclosing to [appellee] where she was living so that he
could not exercise any rights to the child" in
contravention of the Parental Kidnapping and Prevention Act
and the Uniform Child Custody Jurisdiction and Enforcement
Act. He alleged that Schmidt and appellants had "unclean
hands." He sought denial of both the adoption and
guardianship petitions and an award of custody and control of
B.D. to himself.
Stanley
filed a July 20, 2017 petition for custody or to transfer the
case to Indiana where he was a citizen and resident. Included
as an exhibit thereto was a July 18, 2017 Ripley County,
Indiana, Circuit Court order establishing paternity and
taking a custody decision under advisement pending briefing
from the parties. The order noted that there were currently
three cases pending between Indiana and Arkansas, all
involving B.D. Appellants responded in opposition to
Stanley's directed-verdict motion as premature on July
24, 2017. On July 27, 2017, Stanley filed a petition for
registration of foreign judgment in Arkansas, specifically
the Indiana circuit court's July 18, 2017 order
establishing paternity; he also sought to transfer
jurisdiction as a result of the July 18, 2017 order.
On
September 21, 2017, appellants filed a motion for summary
judgment and a separately filed brief in support, asserting
their entitlement to a declaration that Stanley's consent
was not necessary as a matter of law. They argued that
Stanley's consent was not necessary because he failed to
meet the express requirements of Arkansas law, specifically
that Stanley (1) was not married to Schmidt at the time of
conception, (2) was not B.D.'s father by adoption, (3)
was not in physical custody at the time the petition for
adoption was filed, (4) did not have an order granting him
legal custody at the time the petition for adoption was
filed, (5) had not been adjudicated by a court as B.D.'s
legal father at the time the petition was filed and (6) did
not have a significant custodial, personal or financial
relationship with B.D. at the time the petition for adoption
was filed.[9]
Stanley
answered in opposition, with a separately filed brief in
support, on October 6, 2017. He asserted that Arkansas law
required written consent of a man who has acknowledged
paternity, which he had done having "registered at the
putative father registry in two states" and been
"found to be the father" of B.D. He argued that
Arkansas law would not require his consent if he was either a
putative father who either (1) signed an acknowledgement of
paternity or (2) was listed on the putative father registry
but failed to establish a significant, custodial, personal,
or financial relationship with B.D.[10] Accordingly, he argued
that he "was deprived of the opportunity to establish a
significant custodial, personal, or financial relationship
with [B.D.] because the child was taken out of state,
unbeknownst to him, when the child was four (4) days old and
the petition for adoption was filed at the same time."
He reasserted that appellants have unclean hands because:
[They were] asking the court to enter an adoption order when
they (a) knew who the father was[, ] (b) conspired to keep
him from knowing when and where his child was[, ] (c) had a
homestudy [sic] performed prior to the mother giving birth in
anticipation of adopting the child immediately after birth in
order to deprive the father of an opportunity to have a
relationship with his son[, ] (d) scheduled a hearing on the
termination of the mother's rights without notice to the
known father four (4) days after the child was born[, ] (e)
took the child out of the state and moved him to Arkansas
without advising the father instead of filing the petition in
Indiana where the parties were located and the child was
born[, ] and (f) had family members refuse to tell him where
his child was located.
Accordingly,
Stanley sought an award of care, custody, and control of B.D.
On
October 23, 2017, Stanley filed a petition for registration
of foreign judgment, specifically the Indiana circuit
court's October 17, 2017 order, which stated the
following:
13. Adoptions of Indiana does not have the right to terminate
the parental rights of Justin Stanley involuntarily and this
Court has not and will not terminate Justin Stanley's
parental rights involuntarily;
14.This Court, with the issuance of the order terminating the
parental rights of Taylor Schmidt and granting custody to
Adoptions of Indiana and the prospective adoptive parents,
has fulfilled its limited duties in the life of the child;
15.There is no reason for this Court to hold a custody
hearing regarding Stanley's parental rights as this court
lacks jurisdiction to terminate his parental rights, as this
is not the adoption court, it is not the proper court for
Justin Stanley to contest the adoption proceeding;
16.The Motion to Dismiss is denied as this Court in this
cause lacks jurisdiction to terminate Justin Stanley's
parental rights as this cause is a voluntary termination
proceeding brought pursuant to I.C. § 31-35-1-1 et.
seq., and as such, I.C. § 31-35-2-6 is inapplicable to
these matters. Further, Justin Stanley is not a party to the
instant cause of action;
19. This Court declines to exercise further jurisdiction over
the Child as both the paternity court and the adoption court
are both better forums than this Court to determine custody
and where the Child will be permanently
placed[.][11]
Stanley
again sought to transfer jurisdiction as a result of the
October 17, 2017 order.
On
November 3, 2017, Stanley filed a petition for registration
of foreign judgment, specifically the Ripley County, Indiana
Circuit Court's November 1, 2017 order awarding Stanley
custody of B.D., [12] which stated the following:
The
Court has held two previous hearings on these matters. The
Court did not make a custodial finding, instead the Court
exercised caution while waiting for the resolution of the
termination matter in Hamilton County, Indiana. The
Court's reading of the Hamilton County Order dated
October 17, 2017, indicate that the matter is closed. The
Court, having heard the evidence and the arguments of
counsel, now FINDS and
ORDERS as follows:
1. . . . . Father is an Indiana resident. [B.D.] was born in
the State of Indiana. Adoptions of Indiana is an Indiana
Corporation.
2. On February 24, 2017, Father, Justin Stanley, registered
on the Putative Father Registry.
3. On March 8, 2017, Father filed his Petition to
Establish Paternity. This case, the paternity case in
Ripley County, Indiana, was filed before the
termination case and before the adoption case.
4. On March 9, 2017, [B.D.] was born.
5. On March 9, 2017, a Petition to Terminate Parental
Rights was filed in Hamilton County, Indiana.
6. On March 13, 2017, the termination hearing was held and
Mother's parental rights to [B.D.] were voluntarily
terminated. . . . Father's rights were not terminated,
nor legally could they have been.
7. Father was not given notice of the termination hearing
even though he had registered on the Putative Father Registry
several weeks earlier.
8. As part of the termination matter, Adoptions of Indiana
was given legal custody of [B.D.]
9. That same date, March 13, 2017, just four days post-birth,
[B.D.] was removed from the State of Indiana and ...