Mode v. Ark. Dep't of Human Servs.

Cite as 2015 Ark. App. 69
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-623
BRENDA MODE AND CALVIN OPINION DELIVERED FEBRUARY 11, 2015
MODE
APPELLANTS APPEAL FROM THE PERRY
COUNTY CIRCUIT COURT
V. [NO. PR-2013-17]
ARKANSAS DEPARTMENT OF HONORABLE WILEY A. BRANTON,
HUMAN SERVICES and MINOR JR., JUDGE
CHILDREN
APPELLEES AFFIRMED
ROBERT J. GLADWIN, Chief Judge
On April 11, 2014, the Perry County Circuit Court dismissed Brenda and Calvin
Mode’s petition for adoption, finding that they had presented no evidence that appellee
Arkansas Department of Human Services (DHS) consented to the adoption or that DHS was
unreasonably withholding its consent. On appeal, appellants argue that the circuit court’s
decision was clearly against the preponderance of the evidence. We affirm.
Appellants, the maternal grandmother and step-grandfather, filed a petition on April
29, 2013, seeking to adopt their four grandchildren, J.A.H., A.F.D., G.A.D., and T.A.A.
They alleged in their petition that they did not have certified copies of the children’s birth
certificates; that the children were in DHS custody; that the children’s mother’s parental rights
had been terminated on January 23, 2013; and that it would be in the children’s best interest
to be placed with them.
Cite as 2015 Ark. App. 69
At the adoption hearing held March 13, 2014, appellant Brenda Mode testified that her
daughter, mother of the four children, was living in a trailer next door when the four children
were taken from her into DHS custody in 2011. During the pendency of the DHS case,
appellant was granted visitation with the children every week. The oldest child had
previously been taken into DHS custody in 2006 because of the mother’s drinking. Appellant
had temporary custody of that child for about a year before that case was closed and the child
was returned to her mother. Appellant testified that she had filed for guardianship of the four
children but was not awarded guardianship because of her close relationship with her
daughter, the children’s mother.1
Appellant stated that she had ended her relationship with her daughter in October
2012, when the daughter had her parental rights terminated because she had failed a drug test.
She said that her daughter no longer lived next door, and she is not welcome in appellants’
home. Appellant said that the children’s ages were eight, seven, six, and four, and the last
time she had seen them was in February 2013. She said that she did not miss a visit while the
children were in DHS custody, even though DHS had made it difficult to visit. She testified
that DHS had not been supportive of her visits because “they th[ought] I was enabling my
daughter. They did not come out and say it.” Appellant said that she lived in Morrilton and
had worked at Semco for the last five years, making $14.94 per hour, and had a house in
Houston, Arkansas, that she rented out.
1
The guardianship petition is not included in the record; therefore, this court is
unaware of the time-frame in which the guardianship was filed, other than it was sought and
denied before the adoption petition was heard.
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Cite as 2015 Ark. App. 69
On cross-examination, appellant testified that the children were placed in foster care
in 2011 because of a bruise on A.F.D. She said that it was alleged that her daughter had hit
the child. She said that she did not know what happened because she did not witness the
incident. She said that she took the position at the time that it had been an accidental injury.
She explained that she knew the children had “bumped heads” and felt that the bruise could
have resulted from that.
The circuit court examined the witness, and she testified that she had been married for
twenty-three years and had four children. Her first husband died in 1999. She married
appellant Calvin Mode on January 4, 2013, after having lived with him for eleven or twelve
years. She said that they got married because they wanted to adopt the children. She testified
that she had “disassociated” herself from her daughter because of her daughter’s drug use. She
said that she had not seen her daughter for over a year and that she and her husband told her
daughter not to come back.
Appellant Calvin Mode testified that he and his wife had been together since 2001, but
married when they planned to adopt the grandchildren. He said that they lived in Morrilton
and that he worked at Arkansas Kraft making $26 an hour. He said that he was present with
the children the night before DHS took them into custody. He explained that the two oldest
children had been playing with the dog, and the dog jumped up and licked J.A.H.’s face.
When that happened, J.A.H. “popped up” and hit A.F.D.’s face. He said that he had never
seen the children’s mother hit them, but that the children would say that “Momma’s mean
to me.” He said that he was there when DHS first took J.A.H. in 2006, and he was there
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Cite as 2015 Ark. App. 69
when all four children were born. He said that the children would stay with them for long
weekends. He never saw the children’s mother use drugs, but he said that he always thought
she had “PDA or whatever disease where she kind of laughs and cries.” He stated that the
last time he saw the children’s mother she was in court and failed the drug test. He said that
she was not welcome in his home and would never be because he loved his grandchildren.
He said that he had not refused to submit to a background check and has had one. He said
that he loved the children and would give them a good education and supply what they
needed. He said that he disciplines by using a time-out and would not spank them. He
claimed that he was financially able to provide for the children and had insurance through his
work. He said that he was not concerned about the children’s mother because “she is not
coming around me.”
DHS moved for a directed verdict, arguing that pursuant to Arkansas Code Annotated
section 9-9-212 (Supp. 2013), the adoption petition did not include FBI background checks.
Also, DHS claimed that the birth certificates were not provided. Further, DHS argued that
under Arkansas Code Annotated section 9-9-206 (Supp. 2013), consent was not provided
from DHS, and the petitioner did not present any evidence that DHS had unreasonably
withheld its consent. Finally, DHS asserted that a home study was attached to the petition
for adoption, but it was not presented to the circuit court as evidence at the hearing. The
attorney ad litem agreed with DHS’s arguments.
Appellants argued that the home study had been filed of record and that they did not
have access to the birth records of the children. They argued that the background checks had
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Cite as 2015 Ark. App. 69
not been done, but that the issue could be remedied. They argued that the testimony
revealed that DHS unreasonably withheld its consent because appellants had “made significant
progress since the last time they were in court.” They argued that the court’s concerns about
the “intertwined relationship between [appellant Brenda] Mode and the mother have been
satisfied.” They claimed that, considering the close relationship they had with the children
prior to 2011, it would be in the children’s best interest that the adoption be granted or at
least survive the directed-verdict motion.
The circuit court ruled that appellant did not comply with the statutory requirements
in that the FBI background checks were not submitted as evidence and the birth certificates
were not placed in the record. The court further stated,
Ultimately, the larger issue is that there wasn’t any evidence put forth from
which this court could make a decision that the agency was unreasonably withholding
its consent and that it was in the best interests of the children for this adoption to be
approved. There is a statutory requirement to submit the agency’s consent, and then
the agency has 60 days to file its written reasons why it’s not, but that request does not
appear to have been made.
The case that was presented was on Ms. Mode’s part, I’m the grandmother, and
I want to adopt the children. I believe that she does want to adopt the children, but
those facts alone do not demonstrate that it’s in the best interests of the children for
them to be adopted by her and her new husband. I believe that petitioner has failed
to put forth a prima facie case upon which the court could approve the adoption
petition. There were statutory deficiencies; and, at the end of the day, I cannot say
upon this record that there’s any sufficient evidence from which this court could make
a finding this adoption would be in the best interest of the children. I grant the motion
for directed verdict.
The circuit court’s order dismissing the petition was filed on April 11, 2014, and this appeal
timely followed.
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Before an adoption petition can be granted, the circuit court must find from clear and
convincing evidence that the adoption is in the best interest of the child. In re Adoption of
M.K.C., 2009 Ark. 114, 313 S.W.3d 513. We will not reverse a circuit court’s decision
regarding the best interest of a child to be adopted unless it is clearly against the
preponderance of the evidence, giving due regard to the opportunity and superior position
of the circuit court to judge the credibility of the witness. Id.
Arkansas Code Annotated section 9-9-206(a)(3) states that “a petition to adopt a minor
may be granted only if written consent to a particular adoption has been executed by any
person lawfully entitled to custody of the minor or empowered to consent.” An exception to
this requirement exists if the guardian “has failed to respond in writing to a request for consent
for a period of sixty (60) days or who, after examination of his or her written reasons for
withholding consent, is found by the court to be withholding his or her consent
unreasonably.” Ark. Code Ann. § 9-9-207(a)(8) (Repl. 2009). This code provision grants the
circuit court the authority to decide whether DHS, as the legal guardian of the children, had
unreasonably withheld its consent to adopt. There was no evidence that appellants sought
DHS’s consent.
Arkansas Code Annotated section 9-9-214 (Repl. 2009) provides in pertinent part:
(c) If at the conclusion of the hearing the court determines that the required consents
have been obtained or excused and the required period for the withdrawal of consent
and withdrawal of relinquishment have passed and that the adoption is in the best
interest of the individual to be adopted, it may (1) issue a final decree of adoption; or
(2) issue an interlocutory decree of adoption which by its own terms automatically
becomes a final decree of adoption on a day therein specified, which day shall not be
less than six (6) months nor more than one (1) year from the date of issuance of the
decree, unless sooner vacated by the court for good cause shown.
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(d) If the requirements for a decree under subsection (c) of this section have not been
met, the court shall dismiss the petition and the child shall be returned to the person
or entity having custody of the child prior to the filing of the petition.
Ark. Code Ann. § 9-9-214(c)–(d).
DHS and the attorney ad litem appointed to represent the children maintain that
appellants failed to meet their burden under the code. We agree. Appellants had to prove
two things: that all consents to the adoption had been obtained or waived, and that clear and
convincing evidence proved that adoption by them was in the children’s best interest. Lewis
v. Ark. Dep’t of Human Servs., 2012 Ark. App. 347. The circuit court focused on appellants’
failure to introduce any evidence regarding the consent by DHS. Appellants argue on appeal
only that the evidence sufficiently established that the adoption of the children was in their
best interest, claiming that they could have remedied the other issues regarding the
background checks, home study, and birth certificates. However, appellants completely failed
to address the issue of consent by DHS. Even if the circuit court had found the adoption to
be in the children’s best interest, the circuit court could not grant a petition without evidence
that consent had been obtained or excused. In re Adoption of J.J. and J.S., 2014 Ark. App. 659.
No evidence was pled or presented by appellants at trial on the issue of DHS’s consent. Thus,
the circuit court was required to dismiss appellants’ petition.
Affirmed.
VIRDEN and HIXSON, JJ., agree.
J. Brooks Wiggins, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor children.
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