Temple v. Tucker , 277 Ark. 81 ( 1982 )

Steele Hays, Justice.

On October 7,1979, appellant, an unmarried minor, gave birth to a son. On January 31,1980, she signed a consent to adoption by the appellees and an adoption hearing was held on April 28. The appellant was not present and no guardian ad litem was appointed for her. On May 6, a temporary decree of adoption was entered. On July 22, the appellant filed a petition to set aside the decree, alleging that the consent was not valid because no guardian ad litem had been appointed. On September 4, 1981, appellant’s petition was dismissed and the adoption decree was made final. The appellant appeals from thatrulingand argues that the interlocutory decree was in error because no guardian ad litem was appointed as required by Schrum v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976) and by Arkansas Rules of Civil Procedure 17 (b). We affirm the Chancellor.

Under Arkansas’ prior adoption laws, service of process was required even though a consent had been given, and if the consenting parent was a minor a guardian ad litem was necessary. Arkansas’ new adoption act (Act 735 of 1977) institutes a different procedure and no longer requires service of process if consent has been given. The act requires no service, notice, or any further participation by those who consent to an adoption. Since appellant has not challenged the new act on constitutional grounds, we need not consider whether it meets due process requirements. Rather, the question presented is whether Rule 17 (b) of the Arkansas Rules of Civil Procedure, requiring the appointment of a guardian ad litem, should be used to supplement the present adoption act where the consenting parent is a minor.

Appellant relies on Schrum v. Bolding, decided in 1976, before the passage of the Revised Uniform Adoption Act. Ark. Stat. Ann. §§ 56-201 — 56-221 (Supp. 1981). Under Arkansas law in effect prior to Schrum all persons whose consent to an adoption was required, regardless of whether consent was given, were to be named as defendants and were to receive notice of the proceedings by service of summons. Ark. Stat. Ann. § 56-104 (Repl. 1971). It was on this statute that the holding in Schrum was based. The minor mother in Schrum had waived service of process, but the Court pointed out that a minor cannot waive service of process, Moore v. Wilson, 180 Ark. 41, 20 S.W.2d 310 (1929), nor can a guardian ad litem be appointed until after service of process, Ark. Stat. Ann. § 27-826 (Repl. 1979), and no judgment can be rendered against an infant until a defense has been made by a guardian ad litem, Ark. Stat. Ann. § 27-825 (Repl. 1979). Under the current Revised Uniform Adoption Act, which streamlines the old adoption procedure, we have a totally different scheme. If consent has been given, notice to the consenting party is not required, nor is any further participation required of them. The new act makes this quite clear in Ark. Stat. Ann. § 56-207 (b):

Except as provided in section 12 notice of a hearing on a petition for adoption need not be given to a person whose consent is not required or to a person whose consent or relinquishment has been filed with the petition.

and again in § 56-212 (a), directing to whom notice shall be given:

... to (1) any agency or person whose consent to the adoption is required by the Act but who has not consented and (2) a person whose consent is dispensed with upon any ground mentioned in subsections (1), (2), (6), (8) and (9) of subsection (a) of Section 7 of this Act.

Because the language of the RUAA is clear in dispensing with notice once the necessary consent is given, the holding in Schrum must be read in light of the prior adoption statutes which did require notice to all whose consent was required. Too, we take note of the fact that of the seven other states that have adopted the RUAA or substantially similar acts,¹ none has provided for or been construed as requiring a guardian ad litem.

Appellant argues that Rule 17 (b) requires the appointment of a guardian ad litem in proceedings where the consenting parent is an infant. We disagree. Once consent is given under the RUAA, it eliminates the need for any court appearance and any requirement that the person whose consent was given be a party to the proceedings. Rule 17 (b) contemplates an adversarial situation requiring a guardian ad litem whenever a minor has to “sue or defend.” Under the statutory scheme of the RUAA, however, once consent has been given, the participation by the individual giving consent is finished. In contrast, had a minor mother not given consent and was contesting the adoption, the application of 17 (b) would be appropriate. We might point out the act does not preclude a careful practitioner from seeking the appointment of a guardian ad litem for a minor mother and certainly that precaution would lessen the probability of an attack on the adoption decree in a later proceeding, as occurred in this case, and of a subsequent contention that the minority of the parent contributed to an invalid consent. See 2 UALR L.J. 135 (1979).

We might well point out that the new adoption act provides yet another method of surrendering parental rights which is intended to be followed where the consenting mother surrenders her child, not directly to the adopting couple, as here, but to an agency, which may later place the child for adoption by parents it selects. The latter method is set out in Section 20 of the act (Ark. Stat. Ann. § 56-220 [Repl. 1971)] and provides that the consenting parent, regardless of age, can appear before a j udge of a court of record or before a representative of the agency and relinquish her parental rights as well as the rights to later withhold her consent. Under this procedure the consenting parent has ten days in which to revoke her consent and the relinquishment is invalid unless this right of withdrawal is stated.

Appellant’s other argument challenges the trial court’s finding that the appellant gave a valid and informed consent to the adoption. We find the evidence sufficient to sustain the court’s findings and not clearly against the preponderance of the evidence. We will not disturb the decision unless we find to the contrary. Rule 52 ARCP.

Affirmed.

Hickman and Dudley, JJ., dissent.

1 North Dakota, Arizona, Montana, New Mexico, Alaska, Oklahoma and Ohio.