dissenting.
The principal issue in this case is very simply whether the trial court erred in finding that X.T.’s consent to the adoption was not required because he failed to prove “a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption [was] filed.” Ark.Code Ann. § 9-9-206(a)(2) (Repl.2009). I submit that the trial court made a mistake of law in concluding that X.T.’s consent was not required. I likewise believe that the trial court erred in its alternative basis for granting the adoption, i.e., X.T. unreasonably withheld his consent.
In virtually copying the appellees’ supplemental statement of the case, the majority has focused on largely irrelevant facts.6 It is not until the seventh page of the majority opinion 115that it gets to the crux of the matter, whether the trial court clearly erred in finding that X.T.’s consent to the adoption was not required. It attempts to equate X.T.’s provision of only limited prenatal support and his failure to call L.G. after her aunt changed her cellphone number and banned him from calling as a failure to establish a relationship with his unborn child. Regarding the latter, it is preposterous to assert that one can establish any kind of relationship with a baby while it is in útero simply by calling its mother on a cell phone. As to the former, while lying-in expenses are recoverable after the birth of the child in a paternity action, Arkansas Code Annotated section 9-10-110 (Repl.2009), our probate code is completely devoid of that requirement as a prerequisite for being able to withhold consent to the adoption of one’s child.
The majority’s resort to a concurring opinion in a Kansas Court of Appeals case as the authority for its dubious conclusion that X.T. should have set up some kind of trust fund for his child if he wanted to preserve his parental rights is misguided in the extreme, and manifests a complete lack of understanding of Kansas and Arkansas law on this subject. In the first | ^place, the concurring opinion in In re Adoption of M.D.K., 30 Kan.App.2d 1176, 58 P.3d 745 (2002) (Beier, J., concurring), would not be mandatory, binding authority even if we were in Kansas, because it is only a concurrence. More importantly, however, the applicable portion of the Kansas adoption statute makes it mandatory for the court in an adoption proceeding involving an unwed couple to determine “whether the mother has received support payments or promises of support with respect to the child or in connection with such mother’s pregnancy.” Kan. Stat. Ann. § 59-2136(e)(5). No equivalent provision exists in Arkansas law. This misapplication of the law is compounded by the majority’s failure to recognize that our supreme court requires trial courts to strictly comply with the formalities of our adoption statute. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).
I do agree with the majority when it states that “the scope of the due process rights afforded to the putative father of an illegitimate child was clearly defined in Lehr v. Robertson, 463 U.S. 248 [103 S.Ct. 2985, 77 L.Ed.2d 614] (1983).” However, aside from the fact that X.T., like the father in Lehr did not have a relationship with his biological child prior to the filing of the adoption petition, the cases are radically different in terms of the relative opportunity for the fathers to establish such a relationship. The biological father in Lehr filed a petition to vacate the order of adoption of his child, who had been adopted when she was over two years old, by her mother’s new husband. Conversely, the appellees in the instant case took the child from birth and spirited her away to Arkansas before X.T. was even informed of her birth. While the father in Lehr actually lived with the mother for a time after the child’s birth, X.T. was never 117allowed to see his child. The difference is pivotal: in Lehr there was an opportunity squandered; in the instant case, we have an opportunity denied.
The majority’s discussion of X.T.’s purportedly “abusive” telephone calls to persons other than his child are simply not relevant to the issue of whether he should have had the opportunity to establish a relationship with his child. As noted previously, barely two hours after the child’s birth, the appellees took the child from Missouri and secreted her away in Arkansas. Had the majority been looking for guidance in the law rather than mere justification, however slight and spurious, for its position, I submit that it should have looked to our jurisprudence regarding stepparent adoptions and considered the circumstances surrounding X.T.’s involvement, or lack of involvement, in his child’s life and found that his consent to the adoption was required by law.
With regard to whether X.T. “unreasonably withheld his consent to the adoption,” I note that the majority has not cited any authority that defines this nebulous concept, nor made the effort to do so, beyond finding that a couple who were long past their child-bearing years, but financially and professionally well established, would make better parents than a young, natural father with a much less impressive employment history. I can only conclude based on today’s opinion that henceforth “unreasonably withholding consent” can be determined by comparing bank accounts and resumes.
The majority has also impermissibly resorted to fact finding when it states that X.T. is “utterly incapable” of caring for his child because he planned to accept his mother’s | ^assistance while he attended college. In the first place, this finding ignores In re Adoption of SCD, 358 Ark. 51, 186 S.W.3d 225 (2004), where our supreme court held that a virtually identical plan constituted “taking significant steps to prepare for having the baby with [a putative father].” Secondly, there is no evidence in this record upon which anyone, including the trial court and this court, could judge X.T.’s parenting ability because he had never been given so much as visitation with his child. I decline to engage in the rank speculation that the majority attempts to pass off as legal reasoning.
VAUGHT, C.J., and GLADWIN, J., join.
. The majority suggests that X.T. should be disqualified from being a parent because he engaged in sexual activity outside of marriage. Their outrage is curious in this case in that, by definition, all putative fathers have had sex outside of marriage. The majority also points to X.T.’s use of crude language. Suffice it to say that if the use of crude language disqualified a man from parenthood, there are not enough courts in this country to handle all the adoptions. But most importantly, both of these facts are totally irrelevant.
The majority has called X.T. irresponsible, yet the mother, L.G., exhibited the same degree of irresponsibility for conceiving the child. Remarkably, the majority also uses X.T.'s efforts to keep the baby as further proof of his irresponsibility, while at the same time using the mother’s decision to give up the baby and even allow the appellees into the birthing room for the birth of the child as evidence that her decision to consent to the adoption was a sound decision. The majority ignores the fact that L.G. had something — a child — that the appellees wanted very much. I find nothing of significance in the fact that the appellees put their best foot forward.