In re Adoption of J.J. and J.S. ( 2014 )

Cite as 2014 Ark. App. 659ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-14-361
IN RE ADOPTION OF J.J. AND J.S. Opinion Delivered November 19, 2014
JUDY ROGGE APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. P 2013-518-4]
V.
HONORABLE STACEY
ZIMMERMAN, JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AFFIRMED
APPELLEE
RITA W. GRUBER, Judge
In an order of January 2, 2014, the Circuit Court of Washington County denied Judy
Rogge’s petition to adopt her biological grandchildren J.J. (born on January 21, 2009) and J.S.
(born on May 7, 2003). Ms. Rogge now appeals, challenging only the court’s finding that
it was not in the children’s best interest that she adopt them. We affirm.
The circuit court’s order set forth the following history of the case. J.J. and J.S. went
into foster care in August 2011 after being removed from the custody of their mother, Ms.
Rogge’s daughter, due to her instability and unstable relationships. The children were
adjudicated dependent-neglected in September 2011 on the court’s finding that the mother
had left J.S. alone overnight while she was fighting with her boyfriend and using meth. At
the probable-cause hearing in August 2011, the court authorized placement with Ms. Rogge
Cite as 2014 Ark. App. 659contingent on home-study approval.1 Arkansas Department of Human Services (ADHS) did
not approve the placement, and the mother’s parental rights were eventually terminated due
to her continued noncompliance and instability.2 The court found in its order terminating
parental rights that the children could not be placed with Ms. Rogge because she was listed
on the central child-abuse registry for abuse to one of her children, that Ms. Rogge had gone
to J.S.’s elementary school despite a no-contact order and despite knowing that she was not
to contact him, and that there had been reports of her driving by the foster parent’s home.
On these findings, the court concluded that placement of the children with Ms. Rogge was
not in the children’s best interest.
Ms. Rogge filed her petition for adoption in August 2013, and the circuit court
conducted its hearing in September 2013.3 In its written order, the circuit court denied the
petition on the basis of two findings: that ADHS was not withholding consent unreasonably
and that it was not in the children’s best interest for her to adopt them. Citing our statutory
requirement that consent to adoption be given by the children’s custodian, the court noted
that consent had been withheld in this case by the custodian, ADHS. The court also noted
that it had found Ms. Rogge in contempt the day before the hearing for having contact with
1
A relative of a juvenile in ADHS custody shall be given preferential consideration for
placement if the relative caregiver meets all relevant child protection standards and it is in the
best interest of the juvenile to be placed with the relative caregiver. Ark. Code Ann. § 9-27-
355(b)(1) (Supp. 2013).
2
See Jimmerson v. Ark. Dep’t of Human Servs., 2013 Ark. App. 341 (affirming the circuit
court’s order terminating parental rights).
3
The circuit court conducted the hearing on Ms. Rogge’s petition for adoption before
conducting a hearing on a separate petition for adoption filed by the foster parents.
2
Cite as 2014 Ark. App. 659the children.
Ms. Rogge contends that the circuit court erred in finding that it was not in the
children’s best interest that she adopt them. We agree with appellee that even if the circuit
court had found adoption by Ms. Rogge to be in the children’s best interest, dismissal would
still be proper because the issue of consent remained.
Arkansas Code Annotated § 9-9-206(a) (Supp. 2013) requires, in pertinent part, that
consent to adoption must be given by a minor’s lawful custodian unless consent is not
required under Ark. Code Ann. § 9-9-207 (Repl. 2009). The lawful custodian’s consent is
not required if the custodian is found by the court to be withholding consent unreasonably.
Ark. Code Ann. § 9-9-207(a)(8) (Repl. 2009). Thus, a trial court may grant a petition for
adoption if it determines that the required consents have been obtained or excused and that
the adoption is in the best interest of the child. Cowan v. Arkansas Dep’t of Human Servs., 2012
Ark. App. 576, 424 S.W.3d 318. At trial in the present case, no evidence was pleaded or
presented by Ms. Rogge on the issue of consent. See id. at 15, 424 S.W.3d at 327 (noting the
absence of argument that ADHS’s consent was either obtained or unnecessary).
Ms. Rogge challenges only the circuit court’s best-interest determination and fails to
challenge the court’s finding that ADHS was not unreasonably withholding consent to the
adoption. Because consent was required, we need not address any argument regarding the
court’s finding that it was not in the children’s best interest that Ms. Rogge adopt them.
Affirmed.
WYNNE and BROWN, JJ., agree.
John R. VanWinkle, for appellant.
Tabitha Baertels McNulty, Office of Policy & Legal Services; and Chrestman Group,
PLLC, by: Keith Chrestman, for appellees.
3