Escobedo v. Nickita

231 S.W.3d 601, 365 Ark. 548

• Court: Supreme Court of Arkansas
• Decided: March 9, 2006
• Docket: 05-315
• Status: Published

Opinions

Jim Gunter, Justice.

This appeal arises from the circuit court’s order in an adoption case, granting the petition for adoption and finding that neither notice to nor consent from appellant, the putative father, Rusty Escobedo, was required. The circuit court’s order also dismissed as moot Mr. Escobedo’s petition for paternity, which had been consolidated with the adoption matter. Mr. Escobedo files this appeal, claiming that the circuit court erred in granting the adoption without notice or consent, and asks us to reverse the circuit court’s order, dismiss the petition for adoption, and remand the case for further hearings on his petition for paternity and custody. We affirm.

Appellant, Mr. Escobedo, and the child’s mother, Misty Ford, had a brief romantic relationship which resulted in an unprotected sexual encounter in March of2004. Appellant did not see or talk with Ms. Ford after this encounter, and did not know that the encounter had resulted in Ms. Ford’s pregnancy. Ms. Ford was also romantically involved with another man, Billy Ray Gibbins, at the time. On December 3, 2004, Ms. Ford gave birth to a baby girl. Two weeks before the birth, on November 19, 2004, appellees, Mark and Jennifer Nickita, filed a petition for adoption of Ms. Ford’s unborn child, alleging that the father was unknown.

On the day of the baby’s birth, Ms. Ford relinquished her parental rights and consented to the adoption of the baby by appellees. DNA testing excluded Mr. Gibbins as the father. The parties dispute whether appellant had sufficient information to be able to contact Ms. Ford prior to the birth, but agree that he did not contact her during the pregnancy and was not aware that she was pregnant. Appellant first learned that his sexual encounter with Ms. Ford had resulted in a pregnancy and the birth of a child in December of 2004. On December 14, 2004, appellant was served with a summons, petition for adoption, notice of hearing, and notice of deposition. He was deposed by appellees’ attorneys on December 16, 2004. At the deposition, a DNA test was administered. On December 20, 2004, appellant appeared at the adoption hearing without an attorney and immediately requested the results of the paternity test. When asked by the circuit court, appellees’ attorney admitted that the paternity test indicated that appellant was the biological father.

On December 30, 2004, appellant filed (1) a response to the petition for adoption, requesting the court to dismiss the petition, and (2) a petition to establish paternity, asking the court to determine that he was the biological father of the baby and to grant primary custody of the baby to him. On January 3, 2005, appellant filed his information with the putative-father registry. On January 13, 2005, he filed an amended response to the petition for adoption, attaching the registry filing and a copy of the paternity test showing the probability of parentage of 99.99%. He amended his response, adding a claim that the adoption statutes violated his right to due process. In light of appellant’s constitutional challenge to Arkansas statutes, the circuit court granted the State’s motion to intervene on February 23, 2005.¹ On March 2, 2005, the circuit court entered an order granting the adoption and dismissing the petition for paternity as moot. Appellant filed this appeal. At this point, the baby was almost three months old.

I. Ark. Code Ann. § 9-9-206(a)(2)

Appellant’s first point on appeal is that the circuit court erred in finding that his consent to the baby’s adoption is not required. He contends that his consent is required pursuant to Ark. Code Ann. § 9-9-206(a)(2) (Repl. 2002), because he has “otherwise legitimated” the child. Our task is twofold: to interpret the meaning of “otherwise legitimated” and to determine whether appellant has “otherwise legitimated” the child in this case.

Our standard of review is de novo, as it is for this court to decide what a statute means. In re Adoption of SCD, 358 Ark. 51, 186 S.W.3d 225 (2004). We are not bound by the decision of the circuit court, but unless it is shown that the circuit court’s interpretation was wrong, we will accept its interpretation on appeal. Id. We turn now to the statute in issue.

Ark. Code Ann. § 9-9-206 (Repl. 2002)² governs persons who are required to consent to the adoption and states in relevant part as follows:

(a) Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:

(2) The father of the minor if the father was married to the mother at the time the minor was conceived or at any time thereafter, the minor is his child by adoption, he has custody of the minor at the time the petition is filed, or he has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought[.]

Id. (emphasis added).

Notice of the filing of an adoption petition must be given to any person whose consent to the adoption is required, but who has not consented. Ark. Code Ann. § 9-9-212 (Repl. 2002). In addition, Ark. Code Ann. § 9-9-224 requires that, “[w]hen information concerning the child is contained in the putative father registry at the time of the filing of the petition for adoption, notice of the adoption proceedings shall be served on the registrant . . . .” Id. (emphasis added). At the time the petition for adoption was filed, two weeks before the baby was born, appellant would not have been entitled to notice under either of these statutes. Appellant does not argue otherwise.

Appellees argue that because appellant was not entitled to notice, he was not required to consent. They argue that if he had not been given notice, he would not have been aware of the child’s birth, he would never have taken any acts to legitimate the child, and the court could have entered the order for adoption immediately after the hearing. They claim that it would be a bizarre result for us to find that appellant’s consent was necessary due to actions he took after a hearing of which he was not required to be notified.

We disagree. While we agree that the statutes did not require that notice be provided to appellant at the time the petition in this case was filed, appellant was notified of the hearing, and he attended. It is not relevant for purposes of Ark. Code Ann. § 9-9-206(a)(2) how he became aware of the birth of his child. What matters is whether he has “otherwise legitimated the minor [.] ’ ’ Id. If he has, his consent is statutorily required for adoption; if he has not, it is not.

We had the opportunity to interpret what is meant by the language “has otherwise legitimated the minor” in In re Adoption of SCD, 358 Ark. 51, 186 S.W.3d 225 (2004). In that case, the putative father, TF, registered with the Arkansas Putative Father Registry before the child was born. See Ark. Code Ann. § 20-18-702 (Repl. 2005). Upon the baby’s birth, the mother immediately put the child up for adoption. The petition for adoption was filed the day after the birth. TF received notice of the petition for adoption and filed a response and a petition for determination of paternity, seeking custody if he were determined after testing to be the child’s biological father. After admitting the results of a paternity test that showed a 99.99% probability that TF was the father and declaring TF to be the baby’s father in the paternity hearing, the court denied the adoption petition, finding that TF had legitimated the baby in accordance with Ark. Code Ann. § 9-9-206 (a) (2), and that his consent was required for adoption.

We affirmed, holding that TF legitimated the child by registering with the putative-father registry, petitioning for a determination of paternity, and taking significant steps to prepare for having the baby with him in the event he was awarded custody. Id. at 56, 186 S.W.3d at 277. We quoted the following Black’s Law Dictionary definition of “legitimate”: “to make lawful; to confer legitimacy; e.g., to place a child born before marriage on the legal footing of those born in lawful wedlock.” Id. at 56, 186 S.W.3d at 227 (quoting Black’s Law Dictionary 901 (6th ed. 1990)). We then quoted Ark. Code Ann. § 9-10-108(b) (Repl. 2002), which states that the “registration of the father with his consent in the putative father registry . . . shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut such in a proceeding for paternity establishment.” Finally, we stated that the fact that TF did not file his paternity petition until a few days after the petition for adoption was filed did not preclude a finding that he “otherwise legitimated” the baby. Id. at 56, 186 S.W.3d at 227. We noted that there was no explicit time period set forth in Ark. Code Ann. § 9-9-206(a)(2) in which the father must have accomplished the legitimation. Id.

Turning to this case, appellant argues that the following actions legitimated the baby: (1) submission to DNA testing on December 16, 2004; (2) appearance at the December 20, 2004, hearing to contest the adoption, request custody, and request an opportunity to raise the baby; (3) timely filing a response to the adoption on December 30, 2004; (4) filing a petition to establish paternity on December 30, 2004; and (5) establishment of paternity at the December 20, 2004, hearing when the results of the DNA test were admitted in court and the appellees’ attorney stated that appellant was the biological father of the child.

Unlike the father in In re Adoption of SCD, appellant did not timely register with the putative-father registry and does not claim that his untimely registration legitimated his child.³ We recognize that appellant did submit to a paternity test, the results of which indicated that he was the biological father. However, the establishment of a biological connection does not legitimate a child. It is merely a first step.

Appellant also claims that his filing of a petition for paternity on December 30, 2004, legitimated the baby. Appellees argue that we should not consider his petition for paternity in determining whether he has “otherwise legitimated” the child because it was filed after the adoption hearing. Appellant responds, arguing that we stated in In re Adoption of SCD that the putative father’s failure to file his petition for paternity until after the petition for adoption was filed did not preclude a finding that he “otherwise legitimated” the baby.

We find that the facts in In re Adoption of SCD are distinguishable from the facts in this case. In that case, the father filed a petition for paternity within days of the filing of the petition for adoption. Moreover, his petition for paternity was filed over three months before the adoption hearing. Here, not only was appellant’s petition for paternity filed over a month after the petition for adoption, but it was filed over a week after the hearing on the adoption petition. While we did indicate in In re Adoption of SCD that there is no “temporal restriction” in the statute regarding whether a father has “otherwise legitimated” his child, we do not find that appellant’s actions in this case are similar to the father’s actions in In re Adoption of SCD. Filing the petition for paternity over a week after the adoption hearing does not sufficiently “indicate his interest in and willingness to confer legitimacy on the child.” Id. at 57, 186 S.W.3d at 227.

Finally, in In re Adoption of SCD, we relied on the fact that the father in that case had taken significant steps to prepare for having the baby with him if he was awarded custody, stating:

TF took additional steps after filing his paternity petition that clearly indicate his intent to legitimate the child. For example, he testified that he was pursuing a bachelor of science degree from Baylor University. In addition, he stated that he wanted to be “responsible for [the baby] in his growth and development,” and that he would allow IT to be as involved in the baby’s life as she wanted to be. When asked what he had done to prepare for raising the baby, TF stated that he had called and interviewed several day cares in the Waco, Texas, area, and had also looked into finding a pediatrician and health insurance for his son. TF testified that, if he were awarded custody, he would take his son with him to Baylor, and his (TF’s) mother planned to follow him down there to help out until TF and the baby could get established.

Id. at 58, 186 S.W.3d at 229.

The record does not reflect that appellant has taken any such “significant steps” here. At the time of the hearing, appellant had been living with a girlfriend for about a month and was working twelve-hour shifts, five days a week in a manufacturing plant for eight dollars an hour. He had been at this job for about two months. He also testified that he had worked in four or five different jobs over the last five years. When asked who would care for the baby if he were given custody, he stated that his mother, his girlfriend, his father, and his brother would help him care for her. However, he admitted that all of them have jobs and could not care for the child while he was at work. He then suggested that he would hire a babysitter until he could afford a nanny. Finally, while he did not mention health insurance for the child, he did admit that he did not have health insurance. In stark contrast to the father in In re Adoption of SCD, at the time of the hearing, appellant had taken no significant steps to prepare for having the baby with him if he was awarded custody.

In conclusion, we hold that appellant has not “otherwise legitimated” the child pursuant to Ark. Code Ann. § 9-9-206(a)(2). Therefore, we affirm the circuit court’s finding that his consent to the adoption is not required by Ark. Code Ann. § 9-9-206 (a) (2).

II. Due Process

Appellant’s next point on appeal is that the trial court erred in finding that he had no right to notice of the adoption and a hearing in violation of his right to due process. He argues that the Arkansas statutory scheme of adoption violates his right to due process by denying him the opportunity to establish a significant relationship with his biological child.

Ark. Code Ann. § 9-9-212(a) (Repl. 2002) requires notice of the filing of a petition for adoption to be given “at least twenty (20) days before the date of the hearing” to those persons “whose consent to the adoption is required” but who have not consented. With regard to fathers, this includes those who were married to the mother at the time the minor was conceived or at any time thereafter, those who have adopted the minor, those who have custody of the minor at the time the petition is filed, or those who have otherwise legitimated the minor. See Ark. Code Ann. § 9-9-206(a)(2) (Repl. 2002). Ark. Code Ann. § 9-9-224 (Repl. 2002) also requires that notice be given to putative fathers who have registered with the putative-father registry, “[w]hen information concerning the child is contained in the putative father registry at the time of the filing of the petition for adoption . . . .”

In this case, the petition for adoption was filed on November 19, 2004, two weeks before the baby was born and almost a month before appellant knew that his encounter with Ms. Ford had resulted in a pregnancy and consequent birth. Thus, he had no relationship with the child entitling him to notice under Ark. Code Ann. § 9-9-206. Moreover, having no knowledge of Ms. Ford’s pregnancy, he did not file with the putative-father registry before November 19, 2004, which was required in order for him to be provided notice pursuant to Ark. Code Ann. § 9-9-224. Therefore, neither of these statutes governing notice required that appellant be given notice of this adoption hearing. However, his argument is not that the statutes required that he be given notice, but rather that his right to due process required that he be given notice, and therefore that the statutory scheme denying notice in this case is unconstitutional.

The United States Supreme Court has addressed what due-process protections are afforded an unwed, biological father in several cases, culminating with its decision in Lehr v. Robertson, 463 U.S. 248 (1983). In these cases, the Court has distinguished between unwed, biological fathers who have developed strong custodial and personal relationships with their children and those who have not. See Lehr, supra; Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); Stanley v. Illinois, 405 U.S. 645 (1972).

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 and the mother’s husband. The biological father lived with the mother before the child’s birth and visited the mother in the hospital when the child was born, but never provided financial support and never offered to marry the mother. Because he was not a member of any class of possible fathers who were required by statute to be notified of the adoption and had not entered his name in New York’s putative-father registry, which would have entitled him to notice of the adoption proceeding, he did not find out about the adoption until it was already pending when he filed a “visitation and paternity” petition. When he attempted to have the adoption proceedings stayed, he was informed that the adoption had already been granted. The Court held that until an unwed father demonstrates a “full commitment to the responsibilities of parenthood” by coming forward to participate in the rearing of his child, his interest in personal contact with his child does not acquire substantial protection under the Due Process Clause. Id. at 261. The Court explained further as follows:

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.

Id. at 262 (emphasis added).

Noting that the father in Lehr had never established a “significant, personal, or financial relationship” with the child and, therefore, that it was not assessing the constitutionality of New York’s procedures for terminating a developed relationship, the Court stated that its only concern was whether New York adequately protected the unwed father’s opportunity to form a relationship with his child. Id. at 262-63. In other words, rather than recognizing an absolute liberty interest, the Court determined that an unwed father who shared a mere biological connection rather than a developed relationship with his child had an “opportunity” interest that he must promptly grasp in'order to merit constitutional protection. Id. Because the unwed father in Lehr would have received notice had he merely mailed a postcard to the putative-father registry before the child’s adoption over two years after her birth, the Court held that the New York statutes adequately protected the father’s “inchoate interest in establishing a relationship” with his child. Id. at 265.

In the case before us, appellant did not have an established relationship with his infant child at the time the petition for adoption was filed. Therefore under Lehr and its predecessors, the only issue before us is whether his “opportunity to form ... a relationship” with his child was “adequately protected.” Id. at 263. Here, appellant received actual notice of the petition for adoption. On December 14, 2004, six days before the adoption hearing, appellant was served with a summons, petition for adoption, notice of hearing, and notice of deposition. To the extent that appellant had any due-process right that required protection — and under Lehr, he had merely an “opportunity interest” — his interest was adequately protected by his receipt of actual notice of the pending adoption in the form of a summons, petition for adoption, and notice of hearing. In another adoption case regarding the requirement that notice be given to satisfy due process, we stated:

The requirements of due process of law under [Armstrong, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62,] 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.

Mayberry v. Flowers, 347 Ark. 476, 484, 65 S.W.3d 418, 424 (2002) (quoting Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979) (holding that mother was not deprived of due process in adoption hearing where she had actual notice of time, place, and nature of the hearing)); see also Hulstine v. Morris, 819 F.2d 861 (8th Cir. 1987) (holding that due-process requirements may be satisfied if a criminal defendant received actual notice of the charges against him, even if the indictment or information is deficient).

Appellant received notice of the pending adoption. Fie appeared at the hearing. The fact that he appeared without an attorney was his choice to make. We hold that appellant’s opportunity interest was adequately protected in this case by his receipt of actual notice of the pending adoption. We therefore reject his argument that his due-process rights have been violated, and we affirm the judgment of the circuit court.

Affirmed.

Brown and Imber, JJ., concur. Hannah, C.J., dissents.

1 See Ark. Code Ann. § 16 — 111—106(b) (Repl. 2006) (State must be notified and is entitled to be heard when constitutionality of statute is challenged).

2 We note that this statute was amended by Act 437 of 2005, which removed the language “he has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought” and added the following language “he has a written order granting him legal custody of the minor at the time the petition for adoption is filed, or he proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed[.]”

3 The registry is authorized to accept putative-father information prior to the birth of the child or at any time “prior to the filing of a petition for adoption.” Ark. Code Ann. § 20-18-702(c) (Repl.2005).