In re adoption K.M. and K.M.

Cite as 2015 Ark. App. 448

ARKANSAS COURT OF APPEALS
DIVISION IV
No.CV-15-160

OPINION DELIVERED SEPTEMBER 9, 2015
IN RE
ADOPTION OF K.M. and K.M. APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. JV-2012-742]

HONORABLE ANNIE P.
HENDRICKS, JUDGE

AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Neal and Lauren McNutt appeal the November 24, 2014 order of the Sebastian

County Circuit Court granting the petition for adoption filed by foster parents Kenyon and

Josie Hostetler and denying and dismissing the McNutts’ petition for adoption– both

petitions relating to the McNutts’ nieces. The McNutts argue that (1) consent from the

Department of Human Services (DHS) to their petition for adoption was unnecessary and/or

was unreasonably withheld; (2) it was in the best interest of the children that the McNutts’

petition be granted; and (3) the circuit court erred in refusing the McNutts’ request to fully

participate in the Hostetlers’ adoption-petition hearing. We affirm.

This appeal involves the adoption of twin girls, K.M. and K.M., who were less than

two years of age at the time of the hearing. The McNutts are the paternal uncle and aunt of
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the children.1 The parental rights of both parents were terminated by an order dated April

8, 2014. The Hostetlers filed a petition for adoption on November 18, 2013, and the

McNutts filed a petition for adoption on January 3, 2014.

The Hostetlers served as foster parents to the children from the time they were

released from the hospital five weeks after birth through the dates of the hearings. The

McNutts, who are residents of Texas, had no contact or visitation with the children during

that period and took no legal action in this matter from the time that DHS filed the petition

for emergency custody in 2012 until the filing of their petition for adoption in January 2014.

Prior to the McNutts’ filing their petition, while DHS looked at various relatives of the

biological parents for placement or adoption, the McNutts did have some level of

communication with DHS during 2013 regarding the children, including a request for

consideration of adoption, but placement was not possible because the McNutts were living

in Texas.

The two adoption petitions were heard separately; the circuit court determined that

they would not be dealt with in an adversarial manner. The hearing on the McNutts’

petition was held on September 3, 2014, and the hearing on the Hostetlers’ petition was held

on September 17, 2014. The circuit court issued a letter ruling on October 7, 2014,

expressing disappointment in DHS’s overall management of the case, but recognizing the best

interest of the children as the polestar. The circuit court incorporated the letter ruling in

favor of the Hostetlers in its November 24, 2014 order, finding it in the best interest of the

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Appellant Neal McNutt is the brother of the children’s biological father.

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children to grant the Hostetlers’ petition based on the evidence presented at the hearings, the

recommendation of the attorney ad litem, and the posttrial evidence submitted by counsel

for the McNutts. On December 22, 2014, the McNutts filed a timely notice of appeal from

the November 24, 2014 order and subsequent amended notices of appeal on January 29 and

February 4, 2015.

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. Mode v. Ark. Dep’t

of Human Servs., 2015 Ark. App. 69. See also 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 witnesses. Mode, supra.

Arkansas Code Annotated section 9-9-206(a)(3) (Repl. 2009) 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, has unreasonably withheld its consent to adopt.

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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.

(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).

The McNutts were required to prove two things to succeed with respect to their

petition to adopt the children: 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.

I. DHS Consent

Section 9-9-206 requires that a petition for adoption may be granted only if the

written consent to a particular adoption has been executed by any person lawfully entitled

to custody of the minor or empowered to consent. It is undisputed that DHS had custody

of the minor children when the McNutts filed a petition for adoption, and that DHS was

notified of the petition when it was filed and served upon their counsel on January 3, 2014.

The McNutts note that no response to their petition was filed by DHS, and they argue that

the consent of DHS was unnecessary, noting the exception to the consent requirement if the

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legal guardian fails to respond in writing to a request for consent within sixty days pursuant

to section 9-9-207(a)(8).

We hold that consent from DHS was necessary and that the McNutts’ failure to

request its consent in their petition for adoption or obtain consent or waiver by DHS was

a fatal error. By order of the circuit court, DHS had custody of the minor children

throughout the case and was therefore lawfully entitled to custody of the minor children. No

one has suggested that DHS was not the custodian of the children during the pendency of

the case. Further, DHS was specifically given the authority to consent to adoption of the

minor children by the order terminating the parental rights of the natural and biological

parents. Paragraph nine of that order states that “the Department of Human Services is

authorized to consent to the adoption of the juveniles . . . ,” and “the juveniles shall not be

adopted by any person or persons without the consent of the Arkansas Department of

Human Services.” Therefore, DHS was specifically empowered to consent pursuant to

section 9-9-206(a)(3).

The record is uncontroverted that the McNutts’ petition contained no request that

DHS give its consent for their adoption of the children. Their petition reflects only that the

McNutts understood “that both the natural father and mother’s consent would be required

for any adoption.”

Conversely, DHS did give its consent for the adoption of the children by the

Hostetlers, which was filed of record on November 20, 2014. It states “that the Arkansas

Department of Human Services authorizes Tambra Stafford, in her capacity as adoption

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supervisor, to consent to the adoption . . . .” The consent states that it would be in the best

interest of the children that they be adopted by the Hostetlers by a final decree of adoption.

The circuit court stated in the decree of adoption that all statutorily required consents had

been filed and that no further consents were necessary. The circuit court further noted that

the adoption supervisor for DHS was authorized to act on behalf of DHS and that she had

properly executed a consent on behalf of DHS.

The McNutts’ argument misinterprets the exception to the consent requirement when

the legal guardian fails to respond in writing to a request for consent in a petition for

adoption within sixty days. If the McNutts’ petition had sought DHS’s consent to adopt,

DHS would have needed to respond in writing; but, the McNutts’ petition lacked the

needed consent request. Accordingly, their adoption petition did not necessitate any response

from DHS . Thus their no-consent-needed argument fails.

We acknowledge the extensive evidence presented regarding communications

between the McNutts and DHS, both attempted and completed, via telephone calls, emails,

and other correspondence regarding their willingness to participate in the process and their

desire to be considered as potential adoptive parents for the children. We also acknowledge

the circuit court’s expression of disappointment in the manner in which DHS handled the

overall management of the case–specifically, the treatment of and poor communication with

the McNutts. That said, section 9-9-207(a)(8) grants the circuit court the authority to decide

whether DHS, as the legal guardian of the children, unreasonably withheld its consent to

adopt. Mode, supra. We affirm on this point.

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II. Best-Interest Analysis

The preeminent concern of any court in an adoption or custody proceeding is the best

interest of the minor children. Tom v. Cox, 101 Ark. App. 388, 278 S.W.3d 110 (2008). The

McNutts presented evidence to the circuit court about their residency in the McKinney,

Texas, school district, which is in the top one percent of school districts in the nation. They

provided information about their work, home, and neighborhood environment, as well as

research and resources they have available to them to help the children with any issues related

to separation anxiety, bonding, and attachment.

The McNutts challenge the circuit court’s best-interest findings by comparing the

Hostetlers’ attitude toward education for the children. It is undisputed that many parents and

educators within the Hostetlers’ church-based school have completed only eighth-grade

educational programs and that the school system allows individuals with eighth-grade

educations to teach second-through eighth-grade children. There was also an

acknowledgment that there are people in the church who do not believe that it is necessary

for girls to receive a formal education beyond eighth grade. The McNutts assert that the

decision of the circuit court will put the children at an educational disadvantage for the rest

of their lives. Despite testimony about the emotional trauma and possible developmental

interruption that could occur as a result of breaking the bond between the children and the

Hostetlers, the McNutts argue that there are treatments to address that particular problem.

Based upon our standard of review set forth in Mode, supra, we are required to affirm

the circuit court’s decision regarding the best interest of a child to be adopted unless it is

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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 witnesses. Pursuant to that

standard, we hold that the circuit court’s findings are not clearly against the preponderance

of the evidence. Testimony from the hearings on both petitions was summarized by the

attorney ad litem and reflected that the cultural environment for the children in each home

would be appropriate. Evidence presented regarding the Hostetlers’ home, the children in

and around the home, and the interaction of the children with the Hostetlers’ family at the

home and elsewhere reflected that the children are happy and well cared for in that

environment. Kenyon Hostetler testified that they made $150,000 in 2013 and that their

income was up in 2014. He also testified that he worked his family businesses with his twin

brother—and that the fact that he is a twin himself is an asset for rearing a set of twins.

Regarding the educational issues, the Hostetlers repeatedly testified that they did not

have a problem with the girls’ continued education. Kenyon Hostetler testified that he would

like to see the girls get a high-school education and that if they wanted to go to college he

would support that. The attorney ad litem noted in his recommendation that regardless of

where the children are placed for adoption, “the undisputed evidence is that the girls will

have educations better than the national average, and have the full support of their parents

going further in school and life.”

DHS adoption specialist Laura Case testified that she considered all the possibilities of

adoptive placement and that DHS asked family members to come to a consensus. DHS

looked at the paternal grandmother of the children; but, she was not acceptable because she

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was living with a boyfriend. Next, DHS looked at the children’s father’s brother and sister-

in-law, Kyle and Brittney McNutt; but, they were rejected because they had a small child

of their own. DHS also considered the maternal great-grandparents; but, they had to be

rejected due to medical issues of the great-grandfather. Ms. Case stated that she had identified

the Hostetlers as an adoptive placement, and it was her testimony that the best place for the

children to be was with them. Ms. Case testified that she recommended the Hostetlers

because she had been to their home several times; the children had a bond with them; and

it was not only her personal recommendation but that of DHS as well. She concluded that,

“My recommendation is based upon what I think is best for the children.”

A portion of DHS’s recommendation was based on adoption summaries prepared for

each child after the hearing was held that resulted in termination of the biological parents’

legal rights. Both adoption summaries are dated February 21, 2014, and were prepared by

Lyndon Winn, a licensed, certified social worker and adoption specialist. Mr. Winn found

that each child seemed appropriately attached to the foster-adopt family (the Hostetlers) and

that neither child showed any signs that would be expected from a child who was not having

her needs met. Mr. Winn stated in his recommendation for each child that “she be adopted

into a stable loving family that is able to provide the consistent attention, nurture and stability

that she has been doing well with. It is also recommended that placement with her twin sister

in the foster home that ‘she is’ currently placed in be given priority consideration.”

Gregory Roberts was offered by the attorney ad litem and accepted by the circuit

court as an expert witness. Mr. Roberts testified that he had prepared a report, which was

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admitted into evidence. He testified that he had met with the Hostetlers and the children

twice in the home of the Hostetlers and once in his office. He explained the multiple criteria

necessary to his evaluation that were utilized to make proper findings in his report. He

observed the frequency of touching between the parent and child, the comfort-seeking

behavior, the capacity of the parent to engage the child effectively, eye contact, smiles,

separation and reunion, and the parent’s ability to meet the child’s needs. Mr. Roberts

testified that he observed that the children were significantly bonded and attached to both

of the Hostetlers, and his reports also reflect that they had established a strong bond and

attachment to the Hostetlers. The purpose of Mr. Roberts’s assessment was to determine the

extent to which the children had bonded and attached to the Hostetlers in light of any

possible “interrupting” the current placement and the quality of care and bonding attachment

which is crucial to the children’s development and well-being. He found that the twins

presented appropriate, well-established, and extremely secure traits of attachment to both of

the Hostetlers. Mr. Roberts also noted the dangers of interrupting that bonding and

attachment of the children, testifying that primary-caregiving interruption would negate or

destroy the process of basic development. He stated that primary-caregiving interruption in

the first eighteen months of a child’s life through the age of three correlates to poor

self-regulation. His testimony included that he “believe[s] these children have bonded so

much that another adoption would be detrimental.” His recommendation was that these

children needed to stay with the Hostetlers.

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Mr. Casey Copeland, the attorney ad litem for the minor children, filed a written

recommendation at the instruction of the circuit court that stated that the children had spent

all but the first month of their lives in the Hostetlers’ home, that ethnicity was not a factor,

and that culturally, the Hostetlers would provide continuity and support educational goals.

He relied in part upon the report of Mr. Roberts, stating that consistency and continuity

favored the Hostetlers, and that stability mattered. Mr. Copeland reflected that the children’s

sense of identity and belonging favored the Hostetlers because they have lived and grown up

with the Hostetlers as the only family, home, and parents they had ever known. Mr.

Copeland concluded his recommendation by stating “that the best interests of the children

is served by their adoption in to the Hostetler home.”

Following the testimony and exhibits presented by DHS and its adoption specialist,

Ms. Case; the licensed certified social worker, Mr. Winn; the expert witness, Mr. Roberts;

and the attorney ad litem, Mr. Copeland; and, after extensive research, observation,

testimony, and consideration, all agreed that adoption of these children should be by the

Hostetlers. The circuit court’s November 24, 2014 order recites that the circuit court

considered documentary evidence admitted during the hearings, and that “the Court

considered all documents, testimony, arguments and recommendations in making its

decision.” Granting the Hostetlers’ petition for adoption, the circuit court made specific

findings that “the children have lived in the home of the Hostetler petitioners since being

released from the hospital some five weeks after birth, that the children have not lived in

another home, that the children have bonded and attached to the Hostetlers, and that

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removing the children from the Hostetlers poses a risk of harm to their emotional and

psychological well-being.” In its decree of adoption, the circuit court found that “[i]t is in

the best interest of the children that they be adopted by the Petitioners . . .” and that K.M.

and K.M. “are hereby adopted by Kenyon and Josie Hostetler.”

We hold that the circuit court’s decision regarding the best interest of the children was

not clearly against the preponderance of the evidence. Accordingly, we affirm on this point.

III. Circuit Court’s Refusal to Allow the McNutts to Participate in the Hostetler Hearing

The circuit court ruled that the McNutts and their counsel could participate in the

Hostetler hearing onlyto the extent of cross-examining the expert witnesses offered by the

Hostetlers or by DHS. Counsel for the McNutts made a specific request to cross-examine

the Hostetlers’ witness regarding the educational issue, and it was denied. The McNutts note

that Arkansas courts have previously allowed opposing petitioners for adoption to participate

in the proceeding of the opposing party for the limited scope of exploring the best interest

of the minor children. Cowan v. Ark. Dep’t of Human Servs., 2012 Ark. App. 576, 424 S.W.3d

318. They argue that the failure of the circuit court to allow them to participate in the

Hostetlers’ petition hearing had a “devastating effect” on the record because information

cited was developed primarily without cross-examination and based on leading questions.

The McNutts claim that had they been allowed to explore the educational history of

girls in the Hostetlers’ church, and particularly in the Hostetler family, this would have led

to exploration of issues that directly relate to the best interest of the children. The McNutts

maintain that had these issues been factually developed, they could have then been used to

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cross-examine expert witness Mr. Roberts when he testified regarding the dangers of a break

in the bonding between the Hostetlers and the children.

We hold that the circuit court did not err by refusing to allow the McNutts to fully

participate in the Hostetlers’ petition hearing. The McNutts initially propounded discovery

on the Hostetlers, and the Hostetlers objected. The circuit court’s order regarding the

discovery request stated that there would be no discovery between the adoptive petitioners

because the circuit court would consider the individual adoption petitions independently,

rather than as adversarial.

A discussion was had between the circuit court and the parties’ attorneys at the outset

of the Hostetlers’ hearing. The McNutts’ attorney requested to participate in the Hostetlers’

hearing, even though the Hostetlers’ attorney was not allowed to participate in the McNutts’

hearing. The Hostetlers objected to the participation except as to the anticipated expert

witness. Prior to testimony of any witnesses, the circuit court stated that the McNutts’

attorney’s participation would be limited to the expert witness, again stating that the hearing

was not adversarial. Further, the circuit court advised the McNutts’ attorney that if he

wanted to make a record at any time, he was welcome to do that.

The McNutts’ attorney did question Mr. Roberts, the expert witness offered by the

attorney ad litem, as well as Ms. Case, the DHS adoption specialist for the minor children,

who was not offered as an expert witness. Ms. Case was the designated DHS representative

at the hearing on the McNutts’ petition as well, but they did not call her as a witness at that

hearing.

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The remaining witnesses called at the Hostetlers’ hearing were the Hostetlers, Mr.

Kaufman, the education witness, and Anita Miller, a character witness. Although allowed to

do so for any witness during the hearing, the McNutts’ attorney only proffered questions at

the end of the testimony of Mr. Kaufman. However, none of the questions posed in the

McNutts’ brief were proffered at the Hostetlers’ hearing and are offered for the first time on

appeal. In response to the McNutts’ assertions that the witnesses at the Hostetlers’ petition

hearing were not adequately examined, we note that the record indicates that, during the

testimony of the witnesses, not only did the DHS attorney and the attorney ad litem question

the witnesses, the circuit court also questioned all the witnesses except Ms. Miller.

At the close of the testimony, the McNutts’ attorney requested that the circuit court

allow him time to develop rebuttal expert testimony. The circuit court granted the request,

giving him seven days to do so. The remaining attorneys were to have an opportunity to

question the expert on the witness stand and were to be provided with any written report

forty-eight hours in advance. While the McNutts did provide the circuit court with

documents from an alleged expert witness, they did not offer an expert witness for testimony

after the Hostetler petition hearing was held on September 17, 2014.

We hold that the McNutts were not prejudiced by not being allowed to fully

participate in the Hostetlers’ hearing. The McNutts’ attorney participated in the cross-

examination of the testimony of the expert witness called by the attorney ad litem, and

although provided an opportunity to offer the testimony of their own expert witness, the

McNutts failed to do so. Accordingly, we affirm on this point as well.

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Affirmed.

VIRDEN and BROWN , JJ., agree.

Walter, Gaston, Allison & Parker, by: Derick Allison, for appellants.

Paul R. Post, P.A., by: Paul R. Post, for appellees.

Tabitha B. McNulty, Office of Policy & Legal Services, for appellee Arkansas Department
of Human Services.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

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