469 S.W.3d 388
Ark. Ct. App.2015Background
- Twins K.M. and K.M. were placed with foster parents Kenyon and Josie Hostetler five weeks after birth and remained with them through the hearings. The twins’ biological parents’ rights were terminated April 8, 2014.
- Paternal uncle and aunt Neal and Lauren McNutt (Texas residents) filed an adoption petition January 3, 2014; Hostetlers filed an adoption petition November 18, 2013. DHS had custody and was authorized to consent to adoption by the termination order.
- The circuit court heard the McNutts’ petition (Sept. 3, 2014) and the Hostetlers’ petition (Sept. 17, 2014) separately and non-adversarially; the court relied on testimony, expert reports, DHS recommendations, and the attorney ad litem.
- DHS expressly consented to the Hostetlers’ adoption (filed Nov. 20, 2014); the McNutts’ petition did not request DHS consent nor obtain it.
- Experts (including a bonding/attachment evaluator) and the attorney ad litem found the twins strongly bonded to the Hostetlers and concluded removal would risk emotional harm; the court found adoption by the Hostetlers to be in the children’s best interest.
- The circuit court granted the Hostetlers’ petition, denied the McNutts’, and the McNutts appealed asserting DHS consent was unnecessary/unreasonably withheld, challenging the best-interest finding, and complaining about limits on participation in the Hostetlers’ hearing.
Issues
| Issue | Plaintiff's Argument (McNutt) | Defendant's Argument (Hostetler/DHS) | Held |
|---|---|---|---|
| Whether DHS consent was required or unreasonably withheld | DHS consent unnecessary because DHS did not respond in writing within 60 days / communications showed acquiescence | DHS was custodian and expressly empowered to consent; McNutts did not request consent in their petition so the 60‑day nonresponse exception did not apply | DHS consent was required; McNutts’ failure to request it was fatal to their petition |
| Whether adoption by McNutts was in the children’s best interest | McNutts argued they could provide excellent education and resources; separation trauma could be treated | Hostetlers, DHS, expert witnesses, and attorney ad litem presented evidence of strong bond/attachment and stable home with continuity | Court’s best-interest finding for Hostetlers affirmed — not against preponderance of evidence |
| Whether the circuit court erred by limiting McNutts’ participation in Hostetlers’ hearing | McNutts argued limitation prevented meaningful cross‑examination on education/cultural issues affecting best interest | Court limited participation because hearings were non‑adversarial; McNutts had cross‑examination of key experts and opportunity to offer rebuttal (but did not present an expert) | No abuse of discretion; McNutts not prejudiced by participation limits |
| Whether court could dismiss petition under Ark. Code §9-9-214 if consent/requirements unmet | McNutts contended requirements satisfied/waived | DHS/Hostetlers relied on absence of DHS consent and statutory scheme requiring consent or judicial excusal | Court properly dismissed McNutts’ petition for lacking required DHS consent and found Hostetlers’ petition satisfied statutory requirements |
Key Cases Cited
- In re Adoption of M.K.C., 313 S.W.3d 513 (Ark. 2009) (adoption decree requires clear-and-convincing proof that adoption is in child’s best interest)
- Cowan v. Ark. Dep’t of Human Servs., 424 S.W.3d 318 (Ark. Ct. App. 2012) (permitting limited participation by competing adoptive petitioners in certain circumstances)
- Tom v. Cox, 278 S.W.3d 110 (Ark. Ct. App. 2008) (best-interest of child is preeminent concern in adoption/custody proceedings)