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Forrest Wayne Daily v. Stanley

Court of Appeals of Arkansas, Division II

February 20, 2019

FORREST WAYNE DAILY AND ERIN MARIE DAILY APPELLANTS
v.
JUSTIN STANLEY APPELLEE

          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 ...

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