Rusty Wayne Escobedo v. Mark Nickita and Jennifer Nickita
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SUPREME COURT OF ARKANSAS
No.
05-315
RUSTY WAYNE ESCOBEDO,
APPELLANT,
VS.
MARK NICKITA
NICKITA,
AND
JENNIFER
Opinion Delivered March
9, 2006
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
NO. PR-04-608-5,
HON. MICHAEL H. MASHBURN,
JUDGE,
APPELLEES,
AFFIRMED.
1.
F AMILY LAW – ADOPTION – APPELLANT DID NOT “ OTHERWISE LEGITIMATE” THE
CHILD – APPELLANT’S CONSENT TO THE CHILD’S ADOPTION WAS NOT REQUIRED.–
Where appellant received notice of the birth of his child and established that he was
the biological father, but did not timely register with the putative-father registry, did
not file his petition to establish paternity until one week after the adoption hearing,
and had taken no significant steps to prepare for having the baby with him if he was
awarded custody, the supreme court held that appellant had not “otherwise
legitimated” the child pursuant to Ark. Code Ann. § 9-9-206(a)(2) and therefore
affirmed the circuit court’s finding that appellant’s consent to the adoption was not
required by Ark. Code Ann. § 9-9-206(a)(2).
2.
C ONSTITUTIONAL LAW – APPELLANT RECEIVED ACTUAL NOTICE OF THE HEARING
– HIS DUE- PROCESS RIGHTS WERE NOT VIOLATED. – Where appellant received actual
notice of the pending adoption of his infant child, and he attended the hearing, the
supreme court held that the “opportunity interest” afforded to him under Lehr v.
Robertson was adequately protected and that his due-process rights had not been
violated.
Appeal from Washington County Circuit Court; Michael H. Mashburn, Judge; affirmed.
Jim D. Johnson, P.A., by: Jim D. Johnson, for appellant.
Jack and Holly Martin, Attorneys, by: Jack L. Martin, for appellees Mark and Jennifer
Nickita.
Mike Beebe, Att’y Gen., by: Asheton M. Carter, Ass’t Att’y Gen., for appellee, State of
Arkansas.
JIM G UNTER, Justice.
This appeal arises from the circuit court’s order in an adoption case, granting the
petition for adoption and finding that neither notice to nor consent from appellant, the
putative father, Rusty Escobedo, was required. The circuit court’s order also dismissed as
moot Mr. Escobedo’s petition for paternity, which had been consolidated with the adoption
matter. Mr. Escobedo files this appeal, claiming that the circuit court erred in granting the
adoption without notice or consent, and asks us to reverse the circuit court’s order, dismiss
the petition for adoption, and remand the case for further hearings on his petition for paternity
and custody. We affirm.
Appellant, Mr. Escobedo, and the child’s mother, Misty Ford, had a brief romantic
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relationship which resulted in an unprotected sexual encounter in March of 2004. Appellant
did not see or talk with Ms. Ford after this encounter, and did not know that the encounter
had resulted in Ms. Ford’s pregnancy. Ms. Ford was also romantically involved with another
man, Billy Ray Gibbins, at the time. On December 3, 2004, Ms. Ford gave birth to a baby
girl. Two weeks before the birth, on November 19, 2004, appellees, Mark and Jennifer
Nickita, filed a petition for adoption of Ms. Ford’s unborn child, alleging that the father was
unknown.
On the day of the baby’s birth, Ms. Ford relinquished her parental rights and consented
to the adoption of the baby by appellees. DNA testing excluded Mr. Gibbins as the father.
The parties dispute whether appellant had sufficient information to be able to contact Ms.
Ford prior to the birth, but agree that he did not contact her during the pregnancy and was
not aware that she was pregnant. Appellant first learned that his sexual encounter with Ms.
Ford had resulted in a pregnancy and the birth of a child in December of 2004. On December
14, 2004, appellant was served with a summons, petition for adoption, notice of hearing, and
notice of deposition. He was deposed by appellees’ attorney’s on December 16, 2004. At the
deposition, a DNA test was administered. On December 20, 2004, appellant appeared at the
adoption hearing without an attorney and immediately requested the results of the paternity
test. When asked by the circuit court, appellees’ attorney admitted that the paternity test
indicated that appellant was the biological father.
On December 30, 2004, appellant filed (1) a response to the petition for adoption,
requesting the court to dismiss the petition, and (2) a petition to establish paternity, asking the
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court to determine that he was the biological father of the baby and to grant primary custody
of the baby to him. On January 3, 2005, appellant filed his information with the putativefather registry. On January 13, 2005, he filed an amended response to the petition for
adoption, attaching the registry filing and a copy of the paternity test showing the probability
of parentage of 99.99%. He amended his response, adding a claim that the adoption statutes
violated his right to due process. In light of appellant’s constitutional challenge to Arkansas
statutes, the circuit court granted the State’s motion to intervene on February 23, 2005.1 On
March 2, 2005, the circuit court entered an order granting the adoption and dismissing the
petition for paternity as moot. Appellant filed this appeal. At this point, the baby was almost
three months old.
I. Ark. Code Ann. § 9-9-206(a)(2)
Appellant’s first point on appeal is that the circuit court erred in finding that his
consent to the baby’s adoption is not required. He contends that his consent is required
pursuant to Ark. Code Ann. § 9-9-206(a)(2)(Repl. 2002), because he has “otherwise
legitimated” the child. Our task is twofold: to interpret the meaning of “otherwise
legitimated” and to determine whether appellant has “otherwise legitimated” the child in this
case.
Our standard of review is de novo, as it is for this court to decide what a statute means.
In re Adoption of SCD, 358 Ark. 51, ___ S.W.3d ___ (2004). We are not bound by the
1
See Ark. Code Ann. § 16-111-106(b) (Repl. 2006) (State must be notified and is
entitled to be heard when constitutionality of statute is challenged).
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decision of the circuit court, but unless it is shown that the circuit court’s interpretation was
wrong, we will accept its interpretation on appeal. Id. We turn now to the statute in issue.
Ark. Code Ann. § 9-9-206 (Repl. 2002)2 governs persons who are required to consent
to the adoption and states in relevant part as follows:
(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor
may be granted only if written consent to a particular adoption has been
executed by:
....
(2) The father of the minor if the father was married to the mother at the time
the minor was conceived or at any time thereafter, the minor is his child by
adoption, he has custody of the minor at the time the petition is filed, or he has
otherwise legitimated the minor according to the laws of the place in which the
adoption proceeding is brought[.]
Id. (emphasis added).
Notice of the filing of an adoption petition must be given to any person whose consent
to the adoption is required, but who has not consented. Ark. Code Ann. § 9-9-212 (Repl.
2002). In addition, Ark. Code Ann. § 9-9-224 requires that, “[w]hen information concerning
2
We note that this statute was amended by Act 437 of 2005, which removed the
language “he has otherwise legitimated the minor according to the laws of the place in
which the adoption proceeding is brought” and added the following language “he has a
written order granting him legal custody of the minor at the time the petition for adoption
is filed, or he proves a significant custodial, personal, or financial relationship existed with
the minor before the petition for adoption is filed[.]”
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the child is contained in the putative father registry at the time of the filing of the petition for
adoption, notice of the adoption proceedings shall be served on the registrant . . . .” Id.
(emphasis added). At the time the petition for adoption was filed, two weeks before the baby
was born, appellant would not have been entitled to notice under either of these statutes.
Appellant does not argue otherwise.
Appellees argue that because appellant was not entitled to notice, he was not required
to consent. They argue that if he had not been given notice, he would not have been aware
of the child’s birth, he would never have taken any acts to legitimate the child, and the court
could have entered the order for adoption immediately after the hearing. They claim that it
would be a bizarre result for us to find that appellant’s consent was necessary due to actions
he took after a hearing of which he was not required to be notified.
We disagree. While we agree that the statutes did not require that notice be provided
to appellant at the time the petition in this case was filed, appellant was notified of the hearing,
and he attended. It is not relevant for purposes of Ark. Code Ann. § 9-9-206(a)(2) how he
became aware of the birth of his child. What matters is whether he has “otherwise legitimated
the minor[.]” Id. If he has, his consent is statutorily required for adoption; if he has not, it is
not.
We had the opportunity to interpret what is meant by the language “has otherwise
legitimated the minor” in In re Adoption of SCD, 358 Ark. 51, ___ S.W.3d ___ (2004). In that
case, the putative father, TF, registered with the Arkansas Putative Father Registry before the
child was born. See Ark. Code Ann. § 20-18-702 (Repl. 2005). Upon the baby’s birth, the
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mother immediately put the child up for adoption. The petition for adoption was filed the day
after the birth. TF received notice of the petition for adoption and filed a response and a
petition for determination of paternity, seeking custody if he were determined after testing
to be the child’s biological father. After admitting the results of a paternity test that showed
a 99.99% probability that TF was the father and declaring TF to be the baby’s father in the
paternity hearing, the court denied the adoption petition, finding that TF had legitimated the
baby in accordance with Ark. Code Ann. § 9-9-206(a)(2), and that his consent was required
for adoption.
We affirmed, holding that TF legitimated the child by registering with the putativefather registry, petitioning for a determination of paternity, and taking significant steps to
prepare for having the baby with him in the event he was awarded custody. Id. at ___, ___
S.W.3d at ___. We quoted the following Black’s Law Dictionary definition of “legitimate”:
“to make lawful; to confer legitimacy; e.g., to place a child born before marriage on the legal
footing of those born in lawful wedlock.” Id. ___, ___ S.W.3d at ___ (quoting Black’s Law
Dictionary 901 (6 th ed. 1990)). We then quoted Ark. Code Ann. § 9-10-108(b) (Repl. 2002),
which states that the “registration of the father with his consent in the putative father registry
. . . shall constitute a prima facie case of establishment of paternity, and the burden of proof
shall shift to the putative father to rebut such in a proceeding for paternity establishment.”
Finally, we stated that the fact that TF did not file his paternity petition until a few days after
the petition for adoption was filed did not preclude a finding that he “otherwise legitimated”
the baby. Id. at ___, ___ S.W.3d at ___. We noted that there was no explicit time period set
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forth in Ark. Code Ann. § 9-9-206(a)(2) in which the father must have accomplished the
legitimation. Id.
Turning to this case, appellant argues that the following actions legitimated the baby:
(1) submission to DNA testing on December 16, 2004; (2) appearance at the December 20,
2004, hearing to contest the adoption, request custody, and request an opportunity to raise
the baby; (3) timely filing a response to the adoption on December 30, 2004; (4) filing a
petition to establish paternity on December 30, 2004; and (5) establishment of paternity at the
December 20, 2004, hearing when the results of the DNA test were admitted in court and
the appellees’ attorney stated that appellant was the biological father of the child.
Unlike the father in In re Adoption of SCD, appellant did not timely register with the
putative-father registry and does not claim that his untimely registration legitimated his child.3
We recognize that appellant did submit to a paternity test, the results of which indicated that
he was the biological father. However, the establishment of a biological connection does not
legitimate a child. It is merely a first step.
Appellant also claims that his filing of a petition for paternity on December 30, 2004,
legitimated the baby. Appellees argue that we should not consider his petition for paternity
in determining whether he has “otherwise legitimated” the child because it was filed after the
adoption hearing. Appellant responds, arguing that we stated in In re Adoption of SCD that the
3
The registry is authorized to accept putative-father information prior to the birth
of the child or at any time “prior to the filing of a petition for adoption.” Ark. Code Ann.
§ 20-18-702(c) ( Repl. 2005).
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putative father’s failure to file his petition for paternity until after the petition for adoption was
filed did not preclude a finding that he “otherwise legitimated” the baby.
We find that the facts in In re Adoption of SCD are distinguishable from the facts in this
case. In that case, the father filed a petition for paternity within days of the filing of the
petition for adoption. Moreover, his petition for paternity was filed over three months before
the adoption hearing. Here, not only was appellant’s petition for paternity filed over a month
after the petition for adoption, but it was filed over a week after the hearing on the adoption
petition. While we did indicate in In re Adoption of SCD that there is no “temporal
restriction” in the statute regarding whether a father has “otherwise legitimated” his child, we
do not find that appellant’s actions in this case are similar to the father’s actions in In re
Adoption of SCD. Filing the petition for paternity over a week after the adoption hearing does
not sufficiently “indicate his interest in and willingness to confer legitimacy on the child.” Id.
at ___, ___ S.W.3d at ___.
Finally, in In re Adoption of SCD, we relied on the fact that the father in that case had
taken significant steps to prepare for having the baby with him if he was awarded custody,
stating:
TF took additional steps after filing his paternity petition that clearly indicate
his intent to legitimate the child. For example, he testified that he was pursuing
a bachelor of science degree from Baylor University. In addition, he stated that
he wanted to be "responsible for [the baby] in his growth and development,"
and that he would allow IT to be as involved in the baby's life as she wanted
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to be. When asked what he had done to prepare for raising the baby, TF stated
that he had called and interviewed several day cares in the Waco, Texas, area,
and had also looked into finding a pediatrician and health insurance for his son.
TF testified that, if he were awarded custody, he would take his son with him
to Baylor, and his (TF's) mother planned to follow him down there to help out
until TF and the baby could get established.
Id. at ___, ___ S.W.3d at ___.
The record does not reflect that appellant has taken any such “significant steps” here.
At the time of the hearing, appellant had been living with a girlfriend for about a month and
was working twelve-hour shifts, five days a week in a manufacturing plant for eight dollars
an hour. He had been at this job for about two months. He also testified that he had worked
in four or five different jobs over the last five years. When asked who would care for the baby
if he were given custody, he stated that his mother, his girlfriend, his father, and his brother
would help him care for her. However, he admitted that all of them have jobs and could not
care for the child while he was at work. He then suggested that he would hire a babysitter
until he could afford a nanny. Finally, while he did not mention health insurance for the child,
he did admit that he did not have health insurance. In stark contrast to the father in In re
Adoption of SCD, at the time of the hearing, appellant had taken no significant steps to prepare
for having the baby with him if he was awarded custody.
In conclusion, we hold that appellant has not “otherwise legitimated” the child
pursuant to Ark. Code Ann. § 9-9-206(a)(2). Therefore, we affirm the circuit court’s finding
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that his consent to the adoption is not required by Ark. Code Ann. § 9-9-206(a)(2).
II. Due Process
Appellant’s next point on appeal is that the trial court erred in finding that he had no
right to notice of the adoption and a hearing in violation of his right to due process. He argues
that the Arkansas statutory scheme of adoption violates his right to due process by denying
him the opportunity to establish a significant relationship with his biological child.
Ark. Code Ann. § 9-9-212(a) (Repl. 2002) requires notice of the filing of a petition
for adoption to be given “at least twenty (20) days before the date of the hearing” to those
persons “whose consent to the adoption is required” but who have not consented. With
regard to fathers, this includes those who were married to the mother at the time the minor
was conceived or at any time thereafter, those who have adopted the minor, those who have
custody of the minor at the time the petition is filed, or those who have otherwise legitimated
the minor. See Ark. Code Ann. § 9-9-206(a)(2) (Repl. 2002). Ark. Code Ann. § 9-9-224
(Repl. 2002) also requires that notice be given to putative fathers who have registered with
the putative-father registry, “[w]hen information concerning the child is contained in the
putative father registry at the time of the filing of the petition for adoption . . . .”
In this case, the petition for adoption was filed on November 19, 2004, two weeks
before the baby was born and almost a month before appellant knew that his encounter with
Ms. Ford had resulted in a pregnancy and consequent birth. Thus, he had no relationship with
the child entitling him to notice under Ark. Code Ann. § 9-9-206. Moreover, having no
knowledge of Ms. Ford’s pregnancy, he did not file with the putative-father registry before
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November 19, 2004, which was required in order for him to be provided notice pursuant to
Ark. Code Ann. § 9-9-224. Therefore, neither of these statutes governing notice required that
appellant be given notice of this adoption hearing. However, his argument is not that the
statutes required that he be given notice, but rather that his right to due process required that
he be given notice, and therefore that the statutory scheme denying notice in this case is
unconstitutional.
The United States Supreme Court has addressed what due-process protections are
afforded an unwed, biological father in several cases, culminating with its decision in Lehr v.
Robertson, 463 U.S. 248 (1983). In these cases, the Court has distinguished between unwed,
biological fathers who have developed strong custodial and personal relationships with their
children and those who have not. See Lehr, supra; Quilloin v. Walcott, 434 U.S. 246 (1978);
Caban v. Mohammed, 441 U.S. 380 (1979); Stanley v. Illinois, 405 U.S. 645 (1972).
The biological father in Lehr filed a petition to vacate the order of adoption of his
child, who had been adopted when she was over two years old by her mother and the
mother’s husband. The biological father lived with the mother before the child’s birth and
visited the mother in the hospital when the child was born, but never provided financial
support and never offered to marry the mother. Because he was not a member of any class of
possible fathers who were required by statute to be notified of the adoption and had not
entered his name in New York’s putative-father registry, which would have entitled him to
notice of the adoption proceeding, he did not find out about the adoption until it was already
pending when he filed a “visitation and paternity” petition. When he attempted to have the
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adoption proceedings stayed, he was informed that the adoption had already been granted.
The Court held that until an unwed father demonstrates a “full commitment to the
responsibilities of parenthood” by coming forward to participate in the rearing of his child,
his interest in personal contact with his child does not acquire substantial protection under the
Due Process Clause. Id. at 261. The Court explained further as follows:
The significance of the biological connection is that it offers the natural father
an opportunity that no other male possesses to develop a relationship with his
offspring. If he grasps that opportunity and accepts some measure of responsibility for
the child’s future, he may enjoy the blessings of the parent-child relationship and
make uniquely valuable contributions to the child’s development. If he fails to
do so, the Federal Constitution will not automatically compel a state to listen
to his opinion of where the child’s best interests lie.
Id. at 262 (emphasis added).
Noting that the father in Lehr had never established a “significant, personal, or financial
relationship” with the child and, therefore, that it was not assessing the constitutionality of
New York’s procedures for terminating a developed relationship, the Court stated that its only
concern was whether New York adequately protected the unwed father’s opportunity to form
a relationship with his child. Id. at 262-63. In other words, rather than recognizing an absolute
liberty interest, the Court determined that an unwed father who shared a mere biological
connection rather than a developed relationship with his child had an “opportunity” interest
that he must promptly grasp in order to merit constitutional protection. Id. Because the
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unwed father in Lehr would have received notice had he merely mailed a postcard to the
putative-father registry before the child’s adoption over two years after her birth, the Court
held that the New York statutes adequately protected the father’s “inchoate interest in
establishing a relationship” with his child. Id. at 265.
In the case before us, appellant did not have an established relationship with his infant
child at the time the petition for adoption was filed. Therefore under Lehr and its predecessors,
the only issue before us is whether his “opportunity to form . . . a relationship” with his child
was “adequately protected.” Id. at 263. Here, appellant received actual notice of the petition
for adoption. On December 14, 2004, six days before the adoption hearing, appellant was
served with a summons, petition for adoption, notice of hearing, and notice of deposition. To
the extent that appellant had any due-process right that required protection – and under Lehr,
he had merely an “opportunity interest” – his interest was adequately protected by his receipt
of actual notice of the pending adoption in the form of a summons, petition for adoption, and
notice of hearing. In another adoption case regarding the requirement that notice be given
to satisfy due process, we stated:
The requirements of due process of law under [Armstrong, 380 U.S. 545, 85
S.Ct. 1187, 14 L.Ed.2d 62,] were that she have notice reasonably calculated to
apprise her of the pendency of the action and to afford her an opportunity to
present her objections. These requirements of due process were met.
We have heretofore recognized that one who was apprised of the pendency of an
action and aware of the nature of the relief sought before a judgment was rendered, was
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not entitled to have the judgment vacated, whether process was served on him
or not.
Mayberry v. Flowers, 347 Ark. 476, 484, 65 S.W.3d 418, 424 (2002)(quoting Pender v. McKee,
266 Ark. 18, 582 S.W.2d 929 (1979)(holding that mother was not deprived of due process
in adoption hearing where she had actual notice of time, place, and nature of the hearing));
see also Hulstine v. Morris, 819 F.2d 861 (8 th Cir. 1987) (holding that due-process requirements
may be satisfied if a criminal defendant received actual notice of the charges against him, even
if the indictment or information is deficient).
Appellant received notice of the pending adoption. He appeared at the hearing. The
fact that he appeared without an attorney was his choice to make. We hold that appellant’s
opportunity interest was adequately protected in this case by his receipt of actual notice of the
pending adoption. We therefore reject his argument that his due-process rights have been
violated, and we affirm the judgment of the circuit court.
Affirmed.
B ROWN and IMBER, JJ., concur.
H ANNAH, C.J., dissents.
R OBERT L. B ROWN, Justice, concurring. I, too, would affirm but write to emphasize
a salient point. It occurs to me that Mr. Escobedo had some obligation to track Misty Ford’s
condition after he had unprotected sex with her if he ever planned to claim notice of an
adoption and the paternity and custody of the resulting child. Here, Mr. Escobedo did
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nothing prior to birth, and the result was that the Nickitas filed for adoption two weeks
before the child was born. That was in November 2004, and the adoptive parents have now
had the child since birth.
Mr. Escobedo fiercely contends that once he found out he might be the father, due to
the exclusion of Ms. Ford’s boyfriend as the father, he took positive steps to legitimate the
child including paternity testing and registering with the Arkansas Putative Father Registry.
But his paternity petition was filed a month after the adoption petition and a week after the
adoption hearing. His registry with the putative-father registry was still later. Moreover, I
agree with the majority’s conclusion that Mr. Escobedo has taken no significant steps to
prepare for the custody of the child.
I am persuaded by the reasoning of the Vermont Supreme Court which also considered
the rights of a biological father to a child when that father was unaware of the pregnancy and
had failed to act. See In re C.L., Juvenile, 878 A.2d 207 (Vt. 2005). In that case, the Vermont
Supreme Court said:
To conclude that petitioner acted promptly once he became aware of the child
is to fundamentally misconstrue whose timetable is relevant. Promptness is
measured in terms of the baby’s life not by the onset of the father’s awareness.
The demand for prompt action by the father at the child’s birth is neither
arbitrary nor punitive, but instead a logical and necessary outgrowth of the
State’s legitimate interest in the child’s need for early permanence and stability.
878 A.2d at 211.
Next, the Vermont Court quoted from an Arkansas case and said:
Since Lehr [v. Robinson, 463 U.S. 248 (1983)], numerous courts have
concluded that it is the father’s burden to discover the existence of his child,
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even if he had no notice of the pregnancy or birth, or risk losing the
opportunity to transform a biological link into a full and enduring parental
relationship. In re S.J.B., 294 Ark. 598, 745 S.W.2d 606, 607 (1988) (although
father was unaware of his child, notice of adoption proceeding was not
constitutionally required where “biological father was not interested enough in
the outcome of the sexual encounter . . . to even inquire concerning the
possibility of her pregnancy”)[.]
Id. at 211-12.
In the case at hand, Mr. Escobedo did not act until after the adoption hearing. There
is much he could have done prior to that time, including checking on Ms. Ford’s condition
and registering with the putative-father registry. The actions he took were woefully late in
my opinion. For these reasons, I would affirm.
IMBER, J., joins this concurring opinion.
A NNABELLE C LINTON IMBER, Justice, concurring. While I agree that the circuit
court’s decision in this case must be affirmed, I cannot agree with the reasoning presented by
the majority opinion. I must therefore respectfully concur in the opinion.
In its analysis, the majority declines to address the issue of whether Mr. Escobedo was
entitled to receive notice of the adoption hearing by simply noting that he received actual
notice of the hearing. The majority cites our decisions in Mayberry v. Flowers, 347 Ark. 476,
65 S.W.3d 418 (2002), and Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), but those
cases are inapposite here. In each of those cases, the parent in issue was unquestionably
statutorily entitled to notice because his or her consent was required for the adoption. The
father in Mayberry was married to the mother of the child at the time of the child’s birth, and
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thus his consent was required under Ark. Code Ann. § 9-9-206(a)(2) (Repl. 2002), and the
parent in Pender was the biological mother of the child, whose consent is required under Ark.
Code Ann. § 9-9-206(a)(1).
Under Arkansas law, the question of whether a party is entitled to receive notice of an
adoption hearing must necessarily begin with the question of whether such party is required
to consent to the adoption. The statute governing the hearing on a petition for adoption
requires:
At least twenty (20) days before the date of the hearing, notice of the filing of
the petition and of the time and place of hearing shall be given by the
petitioner to (1) any agency or person whose consent to the adoption is
required by this subchapter but who has not consented; and (2) a person whose
consent is dispensed with upon any ground mentioned in § 9-9-207(a)(1), (2),
(6), (8), and (9).
Ark. Code Ann. § 9-9-212(a) (Repl. 2002). Additionally, Ark. Code Ann. § 9-9-224(b)
states, “When information concerning the child is contained in the putative father registry at
the time of the filing of the petition for adoption, notice of the adoption proceedings shall be
served on the registrant unless waived by the registrant in writing signed before a notary
public.” Id.; see also Ark. Code Ann. § 20-18-701 et seq. (Repl. 2005). Thus, the only people
entitled to notice of an adoption hearing are those persons whose consent to the adoption is
required, putative fathers who have registered with the registry, or those persons whose
consent is dispensed with upon any ground mentioned in section 9-9-207(a)(1), (2), (6), (8),
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and (9).4
Mr. Escobedo clearly does not fall into one of the above-listed categories in section 99-207(a). The only way he would be entitled to notice of the hearing would be if his consent
were required pursuant to Ark. Code Ann. § 9-9-206 or if he had filed with the putative
father registry under Ark. Code Ann. § 9-9-224. It is undisputed that Mr. Escobedo did not,
prior to the hearing, file with the putative father registry or otherwise legitimate the child
according to Arkansas law. Moreover, even the majority agrees “that the statutes did not
require that notice be provided to appellant at the time the petition in this case was filed.”
In fact, the appellees’ proposition - that because Mr. Escobedo was not entitled to
notice of the hearing his consent was not required - holds true. While in In re SCD, — Ark.
4
(1)
(2)
(6)
(8)
(9)
These subsections provide that consent to adoption is not required of:
A parent who has deserted a child without affording means of identification or who has
abandoned a child;
A parent of a child in the custody of another, if the parent for a period of at least one (1)
year has failed significantly without justifiable cause (i) to communicate with the child or
(ii) to provide for the care and support of the child as required by law or judicial decree;
****
A parent judicially declared incompetent or mentally defective if the court dispenses with
the parent’s consent;
****
Any legal guardian or lawful custodian of the individual to be adopted, other than a
parent, who has failed to respond in writing to a request or consent for a period of sixty
(60) days or who, after examination of his written reasons for withholding consent is
found by the court to be withholding his consent unreasonably; or
The spouse of the individual to be adopted, if the failure of the spouse to consent to the
adoption is excused by the court by reason of prolonged unexplained absence,
unavailability, incapacity, or circumstances constituting an unreasonable withholding of
consent.
Ark. Code Ann. § 9-9-207 (a)(1), (2), (6), (8), (9) (Repl. 2002).
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—, — S.W.3d — (June 17, 2004), we declined to adopt a rule that the filing of the petition
for adoption constitutes the cutoff date for purposes of determining the father’s right to
consent to adoption, such a brightline rule must necessarily exist in relation to the hearing
itself.5 According to Arkansas law, all parties whose consent to adoption is required are
entitled to notice. Ark. Code Ann. § 9-9-212(a)(1). In addition, some parties whose consent
is not required are nonetheless entitled to notice. Ark. Code Ann. § 9-9-212(a)(2). Finally,
notice of the adoption proceeding must be served on any person registered with the putative
father registry. Ark. Code Ann. § 9-9-224(b). The statutory scheme does not, however,
contemplate a separate category of persons who are not entitled to notice but whose consent
is nonetheless required.
The rationale for the statutory provisions governing adoption could not be more
obvious: the purpose of the hearing on the adoption petition is to determine whether the
petition should be granted. Such a determination necessarily involves consideration of
whether all the necessary parties have consented to the adoption. Thus, the issue of whether
a party qualifies as a person required to consent to the adoption pursuant to Ark. Code Ann.
§ 9-9-206 must be determined prior to the hearing. In other words, the class of persons
5
The legislature has subsequently made it clear that the relevant date is the date of the
filing of the petition for adoption. Act 437 of 2005, codified at Ark. Code Ann. § 9-9-207(10),
(11), provides that the putative father’s consent to adoption is not required where the putative
father has failed to establish a significant custodial, personal, or financial relationship with the
juvenile prior to the time the petition for adoption is filed. Ark. Code Ann. § 9-9-207(10), (11)
(Supp. 2005). Additionally, Ark. Code Ann. § 20-18-702 (c) now provides that the putative
father registry “may accept the information prior to the birth of the child or at any time prior to
the filing of the petition for adoption.” Ark. Code Ann. § 20-18-702 (c) (Repl. 2005).
-20-
required to consent to the adoption is closed by the time of the hearing on the adoption
petition. If the party is not a member of that class before the hearing, no actions on his or her
part after the hearing can then make him or her part of the class. It is for this reason that the
decision in In re SCD, supra, is distinguishable from the case at hand.
In In re SCD, the putative father had filed with the putative father registry and was
consequently entitled to notice of the adoption proceedings. Moreover, the actions of the
father in submitting to a paternity test and seeking custody of the child were all completed
before the hearing on the adoption petition. The issue in that case was whether such actions,
completed after the filing of the adoption petition but before the hearing on the petition,
could be considered in determining whether the father had “otherwise legitimated” the child.
In re SCD, — Ark. —, — S.W.3d — (June 17, 2004). We held that the actions were
properly considered. Id. In this case, Mr. Escobedo had not filed with the putative father
registry and had not “otherwise legitimated” the child before the hearing on the petition, and
thus was not entitled to notice of the petition. Moreover, the above analysis demonstrates
that, in any case where the putative father’s consent is required for adoption at the time of the
hearing, such father is also entitled to notice of the hearing, but in any case where the putative
father’s consent is not required at the time of the hearing, no subsequent actions on the part
of the putative father will resurrect a consent requirement.
The harshness of the result that there is nothing a putative father can do to “otherwise
legitimate” a child after the hearing on the adoption petition where the putative father has not
filed with the registry before the filing of the adoption petition must be balanced with the
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state’s interest in finality and the need for prompt action in adoption proceedings. The New
York Court of Appeals stated:
To conclude that petitioner acted promptly once he became aware of the child
is to fundamentally misconstrue whose timetable is relevant. Promptness is
measured in terms of the baby’s life not by the onset of the father’s awareness.
The demand for prompt action by the father at the child’s birth is neither
arbitrary nor punitive, but instead a logical and necessary outgrowth of the
State’s legitimate interest in the child’s need for early permanence and stability.
Robert O. v. Russell K., 80 N.Y.2d 254, 266, 604 N.E.2d 99 (1992). Similarly, the Supreme
Court of Vermont has summarized the rationale expressed by most courts and commentators:
Relying on Lehr’s observation that strict compliance with the requirements of
the New York putative father registry promoted the state’s interest in ensuring
‘promptness and finality’ to the process of finding the child a permanent and
stable placement, 463 U.S. at 266, 103 S.Ct. 2985, most courts and
commentators have concluded that the ‘opportunity interest’ must be grasped
promptly both before and after the child’s birth, or it will be lost.
In re C.L., 878 A.2d 207, 211 (Vt. 2005)(citing Adoption of Kelsey S., 1 Cal.4th 816, 4
Cal.Rptr.2d 615, 823 P.2d 1216 (1992); In re Raquel Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d
855, 559 N.E.2d 418 (1990); In re Baby Boy K., 1996 SD 33, 546 N.W.2d 86 (1996); E.
Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio
St. L.J. 313 (1984). Numerous courts have also concluded that “it is the father’s burden to
discover the existence of his child, even if he had no notice of the pregnancy or birth, or risk
losing the opportunity to transform a biological link into a full and enduring parental
relationship.” In re C.L., 878 A.2d 207, 211 (citing In re S.J.B., 294 Ark. 598, 745 S.W.2d
606 (1988); In re Zacharia D., 6 Cal.4th 435, 24 Cal.Rptr.2d 751, 862 P.2d 751 (1993); In re
Tinya W., 328 Ill.App.3d 405, 262 Ill.Dec.606, 765 N.E.2d 1214 (2002); In re Baby Doe, 734
-22-
N.E.2d 281 (Ind. Ct. App. 2000)).
The most significant point, as expressed by the Supreme Court in Lehr v. Robertson,
463 U.S. 248 (1983), is that all that is required for the putative father to be entitled to notice
is for him to file with the putative father registry. Lehr v. Robertson, 463 U.S. 248, 264
(1983)(“the right to receive notice [is] completely within [the putative father’s] control”); see
also Ark. Code Ann. § 20-18-701 et seq. Such registries have repeatedly been upheld as
sufficient protection for the constitutional rights of putative fathers.
See, e.g., Lehr v.
Robertson, supra; State ex rel S.H., 119 P.3d 309 (Utah 2005); In re C.L., 878 A.2d 207 (Vt.
2005); Matter of Baby Boy K, 546 N.W.2d 86 (S.D. 1996). Utah first upheld its registry as
constitutional in Wells v. Children’s Aid Society of Utah, 681 P.2d 199 (1984) and has reaffirmed
this holding in numerous cases. See, e.g., State ex rel S.H., supra; Sanchez v. L.D.S. Social
Services, 680 P.2d 753 (1984).
Much like the Arkansas statute concerning the putative father registry, the Utah statute
does not provide notice to putative fathers who fail to register with the registry. U.C.A.,
1953, § 78-30-4(3). Indeed, the Utah statute specifically provides:
Any father of such child who fails to file and register his notice of claim to
paternity and his agreement to support the child shall be barred from thereafter
bringing or maintaining any action to establish his paternity of the child. Such
failure shall further constitute an abandonment of said child and a waiver and
surrender of any right to notice of or to a hearing in any judicial proceeding for
the adoption of said child, and the consent of such father to the adoption of
such child shall not be required.
U.C.A., 1953, § 78-30-4(3). Despite the harsh consequences of failure to register, the Utah
courts have repeatedly held the statute to be sufficient protection for a putative father’s
-23-
constitutional rights. In Sanchez v. L.D.S. Social Services, 680 P.2d 753 (Utah 1984), for
example, the Utah supreme court held that the statute barred a putative father from obtaining
custody of a child born out of wedlock where the father failed to file with the registry until
the day after the child was relinquished to social services. Despite the fact that Sanchez, the
putative father, filed with the registry only four days after the child was born, the court
nonetheless held, “It is of no constitutional importance that Sanchez came close to complying
with the statute. Because of the nature of subject matter dealt with by the statute, a firm
cutoff date is reasonable, if not essential.” Id. at 755.
Likewise, the Oklahoma Supreme Court has upheld its registry and notice statutes,
which are substantially similar to our statutes. The Oklahoma statute provides that certain
persons are entitled to notice of a hearing to terminate parental rights including:
1. any person adjudicated by a court in this state to be the father of the child;
2. any person who is recorded on the child’s birth certificate as the child’s
father;
3. any person who is openly living with the child and the child’s mother at the
time the proceeding is initiated or at the time the child was placed in the care
of an authorized agency, and who is holding himself out to be the child’s father;
4. any person who has been identified as the child’s father by the mother in a
sworn statement;
5. any person who was married to the child’s mother within ten (10) months
prior or subsequent to the birth of the child; and
6. any person who had filed with the paternity registry an instrument
acknowledging paternity of the child, pursuant to Section 6 of this Act.
Title 10 O.S.1991 § 29.1(B). The Oklahoma appellate court, in Matter of C.J.S., 903 P.2d
304 (Okla. 1995), held that a putative father’s constitutional rights were not violated when
he did not receive notice of a hearing to terminate his parental rights where he did not meet
-24-
any of the statutory terms, including filing with the registry. As in this case, the trial court had
nonetheless provided notice, but the Oklahoma court stated:
We hold that notice to Tariah [the putative father] was not required, either
under our statutes or by the Due Process Clause of the Federal Constitution.
In an abundance of caution, the trial court authorized publication notice in
order to insure the validity of the adoption of these children. We need not
address the sufficiency of the unnecessary publication notice.
Id. at 309. So, too, in the instant case, Mr. Escobedo was not entitled to notice under our
statutes or the Due Process Clause of the Federal Constitution, and consequently, any notice
he received was unnecessary and need not be addressed.
Moreover, the fact that Mr. Escobedo was unaware of the child’s existence in this case
is immaterial. We have held, along with numerous other courts, that the putative father’s lack
of knowledge is not sufficient grounds upon which to exempt him from the statutory
requirements.
In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988)(reversed on other
grounds)(“the biological father was not interested enough in the outcome of his sexual
encounter . . . to even inquire concerning the possibility of her pregnancy”); see also In re Baby
Boy K, 546 N.W.2d 86 (S.D. 1996)(“when a putative father is ignorant of his parenthood due
to his own fleeting relationship with the mother and her unwillingness to later notify him of
her pregnancy, the child should not be made to suffer”); In re Paternity of Baby Doe, 734
N.E.2d 281 (Ind. Ct. App. 2000)(“courts from sister states considering cases similar to this one
have placed the responsibility for promptly asserting parental rights on the putative father,
even when the mother of the child has attempted to prevent the father’s knowledge of or
contact with the child”); Robert O. v. Russell K., 604 N.E.2d 99 (N.Y. 1992)(“to conclude
-25-
that petitioner acted promptly once he became aware of the child is to fundamentally
misconstrue whose timetable is relevant. Promptness is measured in terms of the baby’s life
not by the onset of the father’s awareness”). In the instant case, the Arkansas putative father
registry sufficiently protected Mr. Escobedo’s due process rights in connection with the
adoption proceeding. Because he chose not to avail himself of those procedures and did not
“otherwise legitimate” the child before the date of the adoption hearing, I would affirm the
circuit court’s decision.
B ROWN, J., joins.
JIM H ANNAH, Chief Justice, dissenting.
I respectfully dissent.
The majority
characterizes the issue in this case as whether Rusty Wayne Escobedo’s “opportunity interest”
in forming a relationship with his infant daughter was “adequately protected.” This court
concludes that Escobedo’s opportunity interest was adequately protected by his receipt of
notice four business days before an adoption hearing regarding a child he did not know
existed. I believe that Escobedo was denied the opportunity to legitimate his daughter in
contravention of his right as a putative father under the United States Constitution. Also,
common law principles concerning the natural rights of parents were ignored. I also believe
that a hearing on whether Escabdeo had to consent to adoption was improperly turned into
a hearing on his fitness as a parent.
The facts are that in March 2004, Ford and Escobedo had unprotected sexual
intercourse.
A daughter was conceived and born December 3, 2004.
26
According to
Escobedo’s testimony, he and Ford had been seeing each other for three or four months when
they had sexual intercourse, and they had known each other since the seventh grade.6 He also
testified that Ford knew at all times that she could reach him through his parents but had not
attempted to do so. Escobedo only learned that Ford had been pregnant and had given birth
to a baby on December 14, 2004, when he was served with a summons and petition for an
adoption hearing on December 20, 2004. It was only at the December 20, 2004, hearing that
the results from paternity testing were presented and Escobedo knew for certain that he was
the father.7 At this time, he was also served with a notice of deposition and other pleadings.
Pursuant to the notice of deposition, on December 16, 2004, Escobedo appeared at
the law offices of counsel representing the adoptive parents for his deposition even though
counsel for the Nickitas failed to comply with notice requirements of Ark. R. Civ. P. 27. He
submitted to the deposition, and submitted to paternity testing. Escobedo has never denied
his paternity. He retained counsel and timely responded to the petition for adoption and filed
a petition to establish paternity. He filed with the putative father registry within fourteen days
of learning that Ford had delivered a child he had fathered. According to his testimony, he
stood ready to take custody of his daughter, and his mother had agreed to quit work and care
for his daughter.
Previously, on November 19, 2004, Mark and Jennifer Nickita filed a petition for
6
The circuit court concludes that the child was born of a “one-night-stand.” The
evidence does not support this conclusion, and how the child was conceived was not relevant.
7
On December 2, 2004, Billy Ray Gibbons filed with the putative father registry listing
Misty Ford as the mother.
27
adoption seeking to adopt Ford and Escobedo’s daughter, affirming under verification that the
father was unknown. At the hearing, on December 20, 2004, Ford acknowledged Escobedo
as the father. It appears that at the very least there was less than adequate investigation
undertaken before filing the petition.
On the day that Ford and Escobedo’s daughter was born, Ford signed a consent to
adoption form and a form agreeing to the delivery of the child to the Nickitas. On that same
date, an order was entered allowing the Nickitas to take custody of the child. They did so.
This was eleven days before Escobedo knew of the child.
It should be noted that Escobedo received only six days notice of the adoption hearing
set for Monday, December 20, 2004, two of which were Saturday and Sunday. The trial
court’s order granting adoption is unclear and states:
The Court finds, based on the credible evidence before it, that the conception
of Baby Nickita occurred as the result of an encounter, commonly referred to
as a “one night stand,” involving unprotected sex. After that chance union, the
Respondent made no effort to determine whether a pregnancy resulted from
this brief encounter. The Court finds that he had the means and ability to have
taken such action if he had wished to do so. The Court concludes, based on
the credible evidence before it, that Mr. Escobedo failed to timely file with the
Putative Father Registry. He further failed to timely take meaningful action to
otherwise legitimate Baby Nickita. While there may be no explicit time period
for such action, it should come, at a minimum, before the date set for final
hearing on the adoption.
From the order, it appears that the circuit court concluded that Escobedo failed to establish
a constitutionally protected relationship with his daughter by not determining Ford was
pregnant and failing to file with the putative father registry before his child’s birth or before
the hearing. Escobedo is also faulted for his failure to “otherwise legitimate” the child,
28
whatever that means.
The United States Supreme Court has made it clear that under the federal
constitution,8 “[t]he fact of biological parentage generally offers a person only ‘an opportunity
. . . to develop a relationship with his offspring.’” Hodgson v. Minnesota, 497 U.S. 417, 445
(1990) (quoting Lehr v. Robertson, 462 U.S. 248, 262 (1983)). The State has an obligation to
adequately protect an unwed father’s “inchoate interest in assuming a responsible role in the
future of his child.”
Lehr, 462 U.S. at 248.
“Parental rights based on the biological
relationship are inchoate; it is the assumption of the parental responsibilities which is of
constitutional significance.” In re Adoption of John Doe, 543 So.2d 741, 748 (Fla. 1989). The
unwed father is under an obligation to “grasp the opportunity.” Id. An unwed father must
“quickly grasp his opportunity interest.” In re Adoption of J.D.C., 751 N.E.2d 747, 751 (Ind.
Ct. App. 2001). The reason this is required is obvious. A child’s need for permanence and
stability cannot be postponed.
The facts of the present case depart widely from the facts in the cases handed down by
the United States Supreme Court concerning preservation of an opportunity interest. They
8
Under the common law in Arkansas, the mother enjoyed the greatest rights over an
illegitimate child, her rights being “superior to that of anyone else.” Waldron v. Childers, 104
Ark. 206, 210, 148 S. W. 1030, 1031 (1906). However, “as between strangers,” the father of an
illegitimate child was preferred under the common law in Arkansas. The father of an illegitimate
child has “rights superior to that of a stranger in custody disputes over the child ” Roque v.
Frederick , 272 Ark. 392, 396, 614 S.W.2d 667, 669 (1981) (citing Lipsey v. Battle, 80 Ark. 287,
97 S.W. 49 (1906). Consistently in Lee v. Grubbs, 269 Ark. 205, 599 S.W.2d 715 (1980), the
court again indicated that the father of the illegitimate child enjoys preference over strangers
unless he is unfit.
29
did not concern an unwed father who learned of the birth of the child four business days
before the hearing on adoption. Pursuant to Lehr, supra, due-process rights do not attach until
the unwed father acts. Aside from the question of whether Escobedo’s opportunity interest
in developing a relationship with his child was adequately protected, this court is also faced
with the issue of whether Escobedo had any opportunity to develop a relationship with his
daughter. This court in In re S.C.D., 358 Ark. 51, ___ S.W.3d ___ (June 17, 2004), stated
that there is no temporal requirement that an unwed father commence or complete
legitimization of his child by some certain date or event such as filing of the adoption petition.
The decision of the majority in the present case cannot be reconciled with S.C.D, supra.
unless the majority is holding that by failing to register with the putative father registry before
the hearing on the adoption, and by failing to respond to the petition for adoption before the
hearing, and before a response was due, Escobedo failed to avail himself of an opportunity to
develop a relationship with his daughter. Neither the rules of civil procedure nor due process
condone serving a person with a summons and requiring defense on the case referenced in the
summons within four business days of service, without the presence of retained counsel, and
before a response to the summons is even due.
Escobedo filed with the putative father registry soon after the hearing and also filed a
petition to establish paternity. In S.C.D., T.F., the father, filed both before the hearing on
adoption. However, T.F. was aware of the pregnancy and that he was the father. In reality,
while the facts of S.C.D. and the present case are strikingly similar, the decision reached by
this court in S.C.D. and the present case could not be more dissimilar. In S.C.D., T.F.,
30
prevailed in asserting a right to object to adoption, and in the present case, the father lost in
his attempt to assert a right to object to adoption. T.F. in S.C.D. never denied paternity.
Escobedo never denied paternity. T.F. filed a response to the petition adoption. Escobedo
filed a response within two weeks and well within the statutorily allowed time. T.F.
“embraced” paternity by filing a petition himself. S.C.D., 358 Ark. at 56. Escobedo filed a
petition as well. T.F. filed a petition as soon as he learned the baby had been born and there
was a petition for adoption. Escobedo did likewise. At the adoption hearing, T.F. stated at
the hearing that he wanted the child, that he wanted to be involved, and that his mother
would assist in caring for the child. Escobedo testified that he would take care of her that, “I
would do anything in the world to provide for her.” His mother offered to resign her job to
care for the child.
Yet in the present case the majority affirms a finding by the circuit court that Escobedo
failed to establish a relationship with this child sufficient to give him a right to have a say in
the adoption of his daughter while under basically the same facts in S.C.D. the court held
that, “Clearly, TF has ‘legitimated’ this child, not only by signing the Putative Father
Registry, but also by petitioning for a determination of paternity, and by taking significant
steps to prepare for having the baby with him if he is awarded custody.” S.C.D., 358 Ark.
at 58-59. Escobedo did both these things as well. What more could Escobedo do under the
circumstances of this case? Clearly, Escobedo legitimized his daughter, too, at least to the
extent required in S.C.D, if not more given the few days he had before the hearing.
However, there are admittedly some distinctions between the facts of the present case
31
and S.C.D. that should be noted. In S.C.D., T.F. was pursuing college and preparing for life
in a way the father in the present case is not. Escobedo is not pursing college, but instead
works at low wage jobs in manufacturing.
I also note that Escobedo’s testimony in the
hearing covers 23 pages. In the course of those 23 pages, approximately five pages include
questions relevant to Escobedo’s relationship to his child. The vast majority of the questions
were directed to Escobedo’s fitness as a parent, a matter that was not at issue in this hearing.
However, facts were elicited to show that the Nickitas would make better parents than
Escobedo. This court once said that:
[D]ue regard must be given to natural desires. We said in Verser v. Ford, 37 Ark.
27, “It is one of the cardinal principles of nature and of law that, as against
strangers, the father - however humble and poor - if able to support the child
in his own style of life, and [if the father be] of good moral character, cannot,
without the most shocking injustice, be deprived of the privilege, . . . however
brilliant [the advantages offered] may be.”
Hazelip v. Taylor, 209 Ark. 510, 512-13, 190 S.W.2d 982, 983 (1945).
I have a further concern. At the December 20, 2004, hearing, Escobedo informed the
court that he had counsel but that his attorney could not be there that day. The hearing went
forward because, according to the court, Escobedo had notice of it. The court then informed
Escobedo that the petitioners, the Nickitas, had to prove by clear and convincing evidence
that they were entitled to adoption, or in other words, that Esdcabedo’s consent was not
required. The circuit court should have continued the matter until Escobedo’s counsel could
have been present.
At the hearing, counsel for the Nickitas raised the issue of Escobedo’s fitness as a
32
parent. This is an issue that is relevant to termination of his parental rights. Escobedo found
himself in an adversarial proceeding where his morals and integrity were being challenged in
an attempt to convince the court he should not be given custody when what was at issue was
whether his opportunity to develop a relationship with his daughter had been adequately
protected and whether he had failed to avail himself of an opportunity to develop a
relationship with his daughter. If the circuit court considered the evidence offered by the
Nickitas to show Escobedo was not a fit parent, then arguably termination of parental rights
were at issue, and if so, Escobedo was entitled to counsel. Briscoe v. State, 323 Ark. 4, 912
S.W.2d 425 (1996). He was without counsel even though he had retained counsel. The
circuit court was aware Escobedo had retained counsel and should have continued the hearing
until Escobedo’s counsel could be present. Finally, in regard to the hearing, I also note that
contrary to statute and the constitution, there was no showing by clear and convincing
evidence that Escobedo’s consent was not necessary.
In In re: Adoption of Lybrand, 329 Ark. 163, 169, 946 S.W.2d 946, 949-50 (1997), this
court stated:
Adoption statutes are strictly construed, and a person who wishes to adopt a
child without the consent of the parent must prove that consent is unnecessary
by clear and convincing evidence. In Re Adoption of K.F.H. and K.F.H., 311
Ark. 416, 844 S.W.2d 343 (1993); Harper v. Caskin, 265 Ark. 558, 561, 580
S.W.2d 176, 179 (1979) (stating adoption petitioner’s burden is “heavy”).
I do not in any way discount the great concern that the circuit court and this court have for
the best interests of the child. “The State’s interest in providing for the well-being of
illegitimate children is an important one.” Caban v. Mohammed, 441 U.S. 380, 391 (1979).
33
However, constitutional law should be followed. In this case the constitutional protections
afforded Escobedo have been ignored.
I also must note that at the hearing, counsel for the Nickitas relied heavily upon
Arkansas Code Annotated Section 9-9-206 (Repl. 2002). This code section is constitutionally
suspect in failing to adequately protect putative fathers as required under Lehr, supra. Under
Lehr, a putative father’s attempt to establish a substantial relationship with his child determines
the constitutional protection afforded the relationship. If the facts of this case were similar to
the facts in Lehr, we would be examining whether Escobedo failed to take advantage of the
opportunity to develop a relationship with his child. However, in this case, the question is
whether there is anything he could have done but did not do to establish such a relationship
in the few days before the hearing. Lehr does not stand for the proposition that where a
putative father is given four business days notice, and has done all that can be accomplished
in those four days, he has failed to establish a relationship giving him a right to object to
adoption.
The statute does not adequately protect Escobedo’s inchoate right to an
opportunity to develop a relationship with his daughter as required under Lehr.
I do not believe that filing with the putative father registry upon having unprotected
sexual intercourse is required as a condition precedent9 under Lehr or the other opinions of
this court. Escobedo did what was reasonably possible in the time he had. Lex non intendit
aliquid impossible is a familiar maxim of the law. Heong v. United States, 112 U.S. 536 (1884).
9
The purpose of the putative father registry is to entitle putative fathers to notice of legal
proceedings pertaining to the child for whom the putative father has registered. Ark. Code Ann.
§ 20-18-702(a)(2) (Repl. 2005).
34
The law does not intend that impossible requirements be met. This opinion is inconsistent
with the principles set out in Lehr, inconsistent with this court’s holding in S.C.D. and the
decision of the circuit court should be reversed as regrettable as that may be. Such a decision
would serve the best interest of the children who will be adopted in the future.
35
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