Clark v. Clark , 2017 Ark. App. LEXIS 708 ( 2017 )


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  •                                 Cite as 
    2017 Ark. App. 612
    ARKANSAS COURT OF APPEALS
    DIVISION II
    No.CV-17-326
    Opinion Delivered: November   15, 2017
    KIMBERLY AND JEREMY CLARK
    APPELLANTS
    APPEAL FROM THE GARLAND
    COUNTY CIRCUIT COURT
    V.                                              [NO. 26PR-15-27]
    GEORGE AND DAWN CLARK         HONORABLE STEPHEN CHOATE,
    APPELLEES JUDGE
    REVERSED AND REMANDED;
    PETITION DENIED
    RAYMOND R. ABRAMSON, Judge
    Kimberly and Jeremy Clark appeal the Garland County Circuit Court order
    dismissing their motion to set aside the adoption decree of their daughter E.C. in favor of
    George and Dawn Clark. On appeal, Kimberly and Jeremy argue that the circuit court erred
    in denying their motion because they did not receive notice of the adoption petition in
    violation of their due-process rights. We agree and reverse and remand.
    E.C. was born on February 15, 2006, to Kimberly and Jeremy. George and Dawn
    are Jeremy’s parents. On January 14, 2015, George and Dawn filed a petition for adoption
    of E.C. in the Garland County Circuit Court. In the petition, they alleged that they were
    E.C.’s legal guardians and that they did not know the whereabouts of Kimberly and Jeremy.
    They attached the order appointing them guardians of E.C., which had been entered on
    July 19, 2012. They further alleged that Kimberly and Jeremy had not had contact with
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    2017 Ark. App. 612
    E.C. since December 2012 and that Kimberly and Jeremy’s consent to the adoption was not
    required under Arkansas Code Annotated section 9-9-207 (Repl. 2015). 1 Because they did
    not know the whereabouts of Kimberly and Jeremy, George and Dawn published notice of
    the adoption petition in the Sentinel Record on March 14 and March 21, 2015. They did not
    otherwise serve Kimberly and Jeremy with the petition.
    On March 31, 2015, the court held a hearing. Kimberly and Jeremy did not appear.
    George testified that E.C. was removed from Kimberly and Jeremy’s custody in April 2012
    in a dependency-neglect proceeding and that he intervened in that proceeding to obtain a
    guardianship of E.C. Dawn testified that she had not seen Kimberly and Jeremy in one or
    two years. The court took judicial notice of the dependency-neglect case and the
    guardianship order, and the court orally granted the adoption.
    On April 1, 2015, the circuit court entered a final adoption decree. In the decree,
    the court noted that Kimberly and Jeremy did not appear for the final hearing. The court
    further found that their consent to the adoption was not required pursuant to section 9-9-
    207.
    On December 13, 2016, Kimberly and Jeremy filed a motion to set aside the
    adoption decree. They asserted that the decree violated their due-process rights because they
    did not receive notice of the petition. They further alleged that they had frequent
    1
    Section 9-9-207(a)(2) provides that a parent’s consent to adoption is not required of
    a parent of a child in the custody of another, if the parent for a period of at least one 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.
    2
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    2017 Ark. App. 612
    communication with George, Dawn, and E.C. and that they had not waived consent to the
    adoption.
    On January 13, 2017, George and Dawn filed a motion to dismiss Kimberly and
    Jeremy’s motion to set aside the adoption. They asserted that Kimberly and Jeremy’s motion
    was barred by the statute of limitations as set forth in Arkansas Code Annotated section 9-
    9-216(b).
    Also on January 13, 2017, George and Dawn filed a response to Kimberly and
    Jeremy’s motion to set aside the adoption. In the response, they stated that they had
    originally obtained temporary custody of E.C. through the dependency-neglect proceedings
    on April 19, 2012, and that on April 27, 2013, the Arkansas Department of Human Services
    (“DHS”) provided Kimberly and Jeremy a case plan that stated, “Relative guardianship will
    be the concurrent permanency plan for [E.C.] if Jeremy and Kimberly are unable to
    complete the requirements of the case plan to the satisfaction of the Court.” They asserted
    that Kimberly and Jeremy did not comply with the case plan. They further pointed out that
    the guardianship order provided that the guardianship could not be set aside without notice
    to, and the consent of, DHS. On January 18, 2017, the court entered an order granting
    George and Dawn’s motion to dismiss Kimberly and Jeremy’s motion to set aside the
    adoption.
    On January 19, 2017, Kimberly and Jeremy filed a motion to set aside the court’s
    January 18, 2017 order. They complained that they did not have an opportunity to respond
    to George and Dawn’s motion to dismiss their motion to set aside the adoption. The court
    3
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    2017 Ark. App. 612
    did not enter a written order, and the motion was deemed denied on February 18, 2017.
    Accordingly, on March 20, 2017, Kimberly and Jeremy filed their notice of appeal. 2
    We review probate proceedings de novo, but we will not reverse the decision of the
    probate court unless it is clearly erroneous. Dillard v. Nix, 
    345 Ark. 215
    , 
    45 S.W.3d 359
    (2001); Blunt v. Cartwright, 
    342 Ark. 662
    , 
    30 S.W.3d 737
    (2000). When reviewing the
    proceedings, we give due regard to the opportunity and superior position of the circuit
    court to determine the credibility of the witnesses. 
    Id. Similarly, we
    review issues of
    statutory construction de novo, as it is for this court to determine what a statute
    means. Burch v. Griffe, 
    342 Ark. 559
    , 
    29 S.W.3d 722
    (2000). Thus, we are not bound by
    the circuit court’s construction; however, in the absence of a showing that the circuit court
    erred, its interpretation will be accepted as correct on appeal. 
    Id. Kimberly and
    Jeremy argue that the circuit court erred by not setting aside the
    adoption decree because they failed to receive notice of the adoption petition in violation
    of their due-process rights. 3 They recognize that Arkansas Code Annotated section 9-9-
    216(b) provides that, upon the expiration of one year after the entry of an adoption decree,
    2
    On March 1, 2017, Jeremy and Kimberly filed a notice of a constitutional challenge,
    and on March 6, 2017, they filed a motion to declare Arkansas Code Annotated section 9-
    9-216(b) unconstitutional. The circuit court never issued a ruling on that motion. However,
    the pending motion does not affect our ability to review this appeal from a probate
    proceeding. See Ark. Code Ann. § 28-1-116(a) (Repl. 2012) (“Except as provided in
    subsection (b) of this section, a person aggrieved by an order of the circuit court in probate
    proceedings under the provisions of the Probate Code may obtain a review of the order by
    the Supreme Court or the Court of Appeals.”).
    3
    Arkansas Code Annotated section 9-9-212(a)(4) states that “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 the hearing shall be given by the petitioner to . . . a person whose consent is dispensed
    with upon any ground mentioned in section 9-9-207(a)(2).”
    4
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    2017 Ark. App. 612
    the decree cannot be questioned for failure to give the required notice. They further
    concede that they filed their motion to set aside the petition more than a year after its entry.
    However, they assert that the adoption should be set aside because they did not receive the
    required notice pursuant to the adoption statute 4 or actual notice of the adoption petition.
    In other words, they assert they had no notice whatsoever of the pending adoption.
    George and Dawn concede that Kimberly and Jeremy did not receive proper notice
    pursuant to the adoption statute. However, they assert that Kimberly and Jeremy should
    have been aware of E.C.’s adoption from the dependency-neglect proceedings. They point
    out that the goal of the dependency-neglect case was permanent guardianship and that the
    dependency-neglect orders required them to complete the case plan to regain custody of
    E.C. However, Kimberly and Jeremy did not complete the case plan. Thus, they claim that
    Kimberly and Jeremy had sufficient notice of the adoption proceeding.
    Our supreme court’s decision in Mayberry v. Flowers, 
    347 Ark. 476
    , 
    65 S.W.3d 418
    (2002), is instructive. In Mayberry, our supreme court held that the one-year statute of
    4
    The relevant notice requirement provides:
    When the petitioner alleges that any person entitled to notice cannot be located, the
    court shall appoint an attorney ad litem who shall make a reasonable effort to locate
    and serve notice upon the person entitled to notice; and upon failing to so serve
    actual notice, the attorney ad litem shall publish a notice of the hearing directed to
    the person entitled to notice in a newspaper having general circulation in the county
    one (1) time a week for four (4) weeks, the last publication being at least seven (7)
    days prior to the hearing. . . . Before the hearing, the attorney ad litem shall file a
    proof of publication and an affidavit reciting the efforts made to locate and serve
    actual notice upon the person entitled to notice.
    Ark. Code Ann. § 9-9-212(5)(A)–(B).
    5
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    2017 Ark. App. 612
    limitations from section 9-9-216 did not bar a father’s motion to set aside an adoption when
    the father received no notice of the adoption petition until after the entry of adoption. 
    Id. Specifically, the
    evidence showed that the father did not receive the required notice pursuant
    to the adoption statutes nor did he receive actual notice until after the entry of the adoption
    order. 
    Id. Accordingly, the
    court held that the father’s due-process rights had been violated,
    and it set aside the adoption decree. 
    Id. The court
    stated that “the right of a natural parent
    to the custody of his or her child is ‘one of the highest natural rights,’’’ and “[d]ue process
    requires, at minimum, notice reasonably calculated to afford a natural parent the opportunity
    to be heard before his or her parental rights are terminated through adoption.” 
    Id. at 485,
    65 S.W.3d at 424.
    The Mayberry court distinguished the circumstance from Pender v. McKee, 
    266 Ark. 18
    , 
    582 S.W.2d 929
    (1979), where our supreme court held that a mother received sufficient
    notice of a pending adoption under due process. In Pender, the evidence revealed defects in
    the service of process of the adoption petition; however, the undisputed evidence
    demonstrated that the mother had been notified of the pending adoption before the hearing
    was held. 
    Id. Our supreme
    court held that because the mother had received actual notice of
    the pending adoption, her due-process rights were not violated. Specifically, the Pender court
    stated:
    The requirements of due process of law under [Armstrong v. Manzo, 
    380 U.S. 545
              (1965)] 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 not entitled to have the
    judgment vacated, whether process was served on him or not.
    6
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    2017 Ark. App. 612
    Id. at 36–37, 
    582 S.W.2d at 938.
    In this case, we hold that the circumstances here are similar to Mayberry and that
    Kimberly and Jeremy’s due-process rights were violated for failure to receive notice of the
    adoption petition. Even though more than one year had elapsed since the entry of the
    adoption decree, there is no evidence that Kimberly and Jeremy received any notice of the
    adoption proceeding before the entry of the decree. George and Dawn claim that the
    dependency-neglect proceedings gave Kimberly and Jeremy adequate notice of the adoption
    petition. We disagree. As the Mayberry and Pender court stated, due process requires
    notice reasonably calculated to apprise them of the pendency of the adoption action and to
    afford them an opportunity to respond. The dependency-neglect proceedings merely
    provided Kimberly and Jeremy notice that they needed to comply with the case plan to
    regain custody of their daughter. Those proceedings did not give Kimberly and Jeremy
    notice of the pendency of the adoption action, which would terminate their parental rights,
    because the adoption action had not yet been initiated. Moreover, the dependency-neglect
    action was a separate proceeding with a different legal standard than the adoption petition
    in the probate action. Thus, the dependency-neglect action did not give Kimberly and
    Jeremy notice reasonably calculated to apprise them of the pendency of the adoption
    proceeding and to afford them an opportunity to respond. 5 Accordingly, we hold that
    5
    George and Dawn have filed a petition for writ of certiorari requesting this court to
    remand the case for correction of omissions in the record. Specifically, they request the
    court to order that the orders and transcripts from the dependency-neglect proceedings be
    supplemented to the record. They also argue that their letter brief in support of their motion
    to dismiss the motion to set aside the adoption be supplemented to the record. As to the
    dependency-neglect proceedings, for the reasons set forth in this opinion, we hold that the
    orders and transcripts of those proceedings are not necessary for our review of the issue on
    7
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    Kimberly and Jeremy’s due-process rights were violated and that the circuit court erred in
    granting George and Dawn’s motion to dismiss Kimberly and Jeremy’s motion to set aside
    the adoption decree. Accordingly, we reverse and remand.
    Reversed and remanded; petition denied.
    MURPHY and BROWN, JJ., agree.
    The Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellants.
    Lawrence C. Honeycutt, for appellees.
    appeal. As to the letter brief, Kimberly and Jeremy point out that George and Dawn did not
    file the letter brief in the circuit court record. Accordingly, we deny the petition.
    8
    

Document Info

Docket Number: CV-17-326

Citation Numbers: 2017 Ark. App. 612, 535 S.W.3d 282, 2017 Ark. App. LEXIS 708

Judges: Raymond R. Abramson

Filed Date: 11/15/2017

Precedential Status: Precedential

Modified Date: 11/14/2024