Clark v. Clark

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
 Cite as 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.

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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

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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).”

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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

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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).

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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.

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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

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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

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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.

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