*1 the trial court’s that the Barker v. With ruling regard as a court-order Frank settlement agreement qualified exception Amendment we have determined that 74(a), already pursuant Thus, the Barker v. Frank the State was not party litigation. because the cannot be bound a court order entered in that State does the Barker v. Frank settlement as agreement qualify Amendment 74. we hold court-order exception Accordingly, that the trial court erred its on this issue. ruling and remanded. Reversed ESCOBEDO Mark NICKITA
Rusty Wayne
Nickita
Jennifer
05-315
Supreme 9, 2006 delivered March Opinion *2 P.A., D. D. for Johnson, by: Johnson, appellant. Jim Jim Martin, Martin, and L. for Holly Attorneys,by: appellees Jack Jack Mark and Nickita. Jennifer Beebe, Gen., Carter, Gen., Mike AshetonM. Ass’t Att’y by: Att’y for State of Arkansas. appellee, This arises from circuit appeal Gunter,
Jim Justice. court’s order in an for adoption granting petition and that neither notice to nor consent adoption finding from appel- lant, father, Escobedo, was circuit Rusty required. court’s order also dismissed as moot Mr. Escobedo’s for petition which had been consolidated with the matter. paternity, Mr. Escobedo files this that the circuit court erred in appeal, claiming consent, without notice or granting and asks us to order, reverse the circuit court’s dismiss for petition adoption, remand the case for further on his for hearings paternity We affirm. custody. Escobedo, mother, Mr. and the child’s Appellant, Misty
Ford, had a brief romantic which resulted in an sexual encounter in March unprotected of2004. did not Appellant encounter, see or talk with Ms. Ford after this and did not know that the encounter had resulted in Ms. Ford’s Ms. Ford pregnancy. was man, also involved with another romantically Billy Ray Gibbins, 3, 2004, at the time. On December Ms. Ford birth gave birth, to a 2004, Two weeks before the baby girl. on November Nickita, Mark and appellees, filed a Jennifer of Ms. Ford’s unborn that the father was alleging unknown. birth, On the Ms. Ford her day baby’s relinquished and consented to the
parental rights baby by DNA excluded Mr. appellees. testing Gibbins as the father. The whether had parties dispute sufficient information appellant to be birth, able to contact Ms. Ford to the but that he did prior agree not contact her and was not during aware that she pregnancy was first learned that his sexual encounter pregnant. Appellant with Ms. Ford had resulted in a and the birth of a child pregnancy 14, 2004, in December of 2004. December On appellant summons, served with a notice of and notice of He was deposition. deposed by attorneys appellees’ on December At the 2004. a DNA test was deposition, 20, 2004, administered. On December at the appellant appeared without an adoption hearing attorney immediately requested court, the results of the test. When asked circuit paternity admitted that the test indicated that appellees’ attorney appellant was the father.
On December filed to the response the court to dismissthe adoption, requesting petition, *3 to establish the court to petition paternity, asking determine that he was the father of the and to baby grant 3, 2005, of the to him. On primary custody baby January appellant filed his information with the On putative-father registry. January 13, 2005, he filed an amended to the response and a adoption, attaching test registry filing coрy paternity showing He amended probability 99.99%. parentage a claim that the response, adding statutes violated his adoption to due In right to Arkansas constitutional process. light appellant’s challenge statutes, the circuit court the State’s granted motion intervene on 2005.1 On March February circuit court entered order granting adoption dismissing as moot. filed this petition point, At this Appellant appeal. was almost three months baby old.
I. Ark. CodeAnn. 9-9-206(a)(2) § first on is that the circuit Appellant’s court erred point appeal that his consent to the finding is not baby’s adoption required. He contends that his consent is to Ark. Code required pursuant Ann. 9-9-206(a)(2) he 2002), because has “otherwise (Repl. § the child. Our task is twofold: legitimated” interpret of “otherwise and to meaning legitimated” determine whether has “otherwise the child in this legitimated” case. novo,
Our standard of review is de
as it is for this court to
SCD,
decide what a
statute means. In re
Ark.
Adoptionof
adopt may granted if written consent only to a particular been has executed by: (2) The theminor the was married to the mother at father of if father the time the minor thereafter, was conceived or at time minor is his child by he has minor at the filed, time the or he has otherwiselegitimatedthe minor to the according lawsof the in which the place adoption proceeding is brought[.]
Id. added). (emphasis Notice of the of an must be given whose consent any person to the but who has required, not consented. Ark. Code Ann. 9-9-212 2002). (Repl. § addition, that, Code Ann. 9-9-224 infor- requires “[w]hen mation the child is contained in the concerning *4 at the time the the notice of the petition for shall adoption be served the proceedings on . . . .” Id. registrant At added). the time (emphasis filed, the for was petition adoption two born, weeks before the was baby would not have appellant been entitled to notice under either of these statutes. Appellant does not otherwise. argue that Appellees because argue was not entitled to appellant
notice, he was not
to consent.
that
required
if he had
They argue
notice,
not been
he would
given
not have been aware of the child’s
2 We note that this statute was amended
Act 437 of 2005, which removed the
by
language “he
legitimated
has otherwise
the minor according to the laws of the
in which
place
the
proceeding
brought”
is
following
and added the
language “he has a
adoption
written order
granting
legal
him
of the minor at the time the
for
or he
filed,
petition
adoption
significant
custodial,
or financial
existed with the
proves
minor before
personal,
the
for
petition
filed[.]”
the
birth,
taken
acts to
he would never have
legitimate
the order for
immedi-
the court could have entered
that it would be a bizarrе result
after the
claim
They
ately
hearing.
due to actions
find that
consent was necessary
for us to
he took
appellant’s
to be notified.
which he was not
required
after
the
did not
While we
statutes
We
agree
disagree.
at the time the
that notice be
to appellant
require
provided
filed,
notified of the
and he
in this case was
was
of Ark.
Ann.
attended. It is not relevant for
Code
purposes
the birth of his child.
how he became aware of
9-9-206(a)(2)
§
the mi-
is whether he has “otherwise
What matters
legitimated
’’
has,
Id. If he
his consent is
for
nor
statutorily required
adoption;
[.]
not,
if he has
it is not.
the
what is meant
the
We had
interpret
the minor” in In re
“has otherwise
language
legitimated
Adoptionof
SCD,
In that
the
358 Ark.
Turning appellant argues following actions submission to DNA (1) legitimated baby: testing 16, 2004; 20, 2004, December at the December (2) appearance to contest the custody, request request raise (3) baby; timely filing response 30, 2004; on December (4) establish filing petition 30, 2004; on December establishment of paternity pater- 20, 2004, at the December when the results of the nity DNA test were admitted in court and the stated attorney appellees’ that was the father of the child. appellant biological SCD, Unlike the father in In re did not Adoption appellant timely that his that and does not claim register putative-father registry his child.3We untimely registration legitimated recognize test, did submit to a the results of which paternity However, indicated that he was the father. the estab- biological lishment of a connection does not a child. It legitimate a first merely step. also claimsthat his of a for Appellant filing petition paternity on December that legitimated baby. Appellees argue we should not consider his whether he has “otherwise for petition paternity determining the child because it
legitimated” filed after the adoption hearing. Appellant responds, arguing we stated in In re SCD that the father’s failure Adoption to file his for until after the petition for paternity was filed did not that he “otherwise preclude finding legiti- mated” the baby. We find that the facts in In re SCD are distin- Adoptionof from facts in this case. In guishable the father filed a within filing is authorized to information to the birth of accept putative-father prior the child or at time to the of a Ark. Code Ann. “prior adoption.” 20-18-702(c) (Repl.2005). *6 Moreover, was filed over three his for paternity Here, not was months before the hearing. only appel- for filed over a month after lant’s for paternity on the a week after the but it was filed over re While we did indicate In SCD Adoption adoption petition. restriction” in the statute there is no regarding “temporal child, his we dо not whether a father has “otherwise legitimated” in this case are similar to the father’s find that actions appellant’s for actions in In re SCD. Filing Adoption of a week after does not sufficiently over on the “indicate his interest in and to confer legitimacy willingness at 227. child.” Id. at 186 S.W.3d SCD, relied on the fact that in In re we Finally, Adoption of in that had taken for the father case significant steps prepare with him if he was awarded custody, having baby stating: after that clearly
TF took additional his steps paternity petition indicate intent to the child. For he testified his legitimate example, that he was a bachelor of science from degree Baylor pursuing addition, he stated that he to be wanted University. “responsible and and that he would his baby] growth development,” [the allow IT to be as involved in the life as she wanted to baby’s be. asked what he had done to raising baby, When prepare TF stated that he had called and interviewed several cares in the day Waco, Texas, area, had also looked into finding pediatrician that, and health for his son. TF testifiеd if he were insurance awarded he would take his son with him to and his custody, Baylor, mother to follow him down there to out until (TF’s) help planned TF and the could established. baby get Id. at S.W.3d at 229.
The record does reflect that has taken such appellant here. At the time of the had “significant steps” been with a for about month living girlfriend working shifts, five a week in a twelve-hour manufacturing plant dollars an hour. He had been at this for about two eight job months. He also testified that he had worked in four or five different over the last five When asked who would care jobs years. mother, for the if he were he stated that his his baby given custody, father, his brother would him care for her. girlfriend, help However, he admitted that all of them have and could not jobs then that he care for the child while he was at work. He suggested hire a until he afford a would could nanny. Finally, babysitter he did mention health insurance for the he did while admit that he did not have health insurance. In stark contrast to SCD, father in In re at the time of Adoption hearing, appellant *7 had taken no for baby significant steps prepare having him if he was awarded custody. conclusion, “other we hold that has not appellant
wise the child to Ark. Code Ann. 9-9- legitimated” pursuant § Therefore, that his we affirm the circuit court’s 206(a)(2). finding consent to the is not Ark. Code Ann. adoption required 9-9-206 (a)(2). §
II. Due Process next is the trial erred court Appellant’s point appeal that he had no to notice of the and a finding right in violation his due He that the right process. argues Arkansas scheme of violates his to due statutory right him the to establish a process by denying significant with his child. relationship biological Ark. Code Ann. notice 9-9-212(a) 2002) (Repl. requires § aof for to be “at least filing given twenty before the date to those “whose hearing” persons consent to the but who have not consented. adoption required” fathers, With this includes those who were married to the regard mother at the time the minor was conceived or at time thereafter, minor, those who have those who have adopted filed, of the minor at the time the or those who have otherwise the minor. SeeArk. Ann. Code 9-9- legitimated § 206(a)(2) also 2002). Ark. Code Ann. 9-9-224 2002) (Repl. (Repl. § that notice be fathers who have requires given information registered putative-father registry, “[w]hen the child is contained in the concerning the time the . . . .” petition adoption In this filed on November 19, 2004, two weeks before was born and almost a month baby knew that his encounter with Ms. Ford had appellant Thus, resulted in a birth. he had no pregnancy consequent with the child him to notice under Ark. entitling Moreover, Ann. Code 9-9-206. no of Ms. having knowledge § Ford’s he did not file with the pregnancy, putative-father registry before November which was in order him required to be notice to Ark. Code Ann. 9-9-224. provided pursuant Therefore, neither of these statutes notice governing required However, notice of this given adoption hearing. notice, is not that the statutes that he be argument given but rather that his to due that he be right process required given notice, and therefore that scheme statutory denying this case is unconstitutional.
The United States
has
Court
addressed what due-
Supreme
unwed,
are afforded an
father in
protections
process
biological
cases,
Robertson,
several
with its dеcision in Lehr v.
culminating
cases,
U.S. 248
In these
Court has distinguished
unwed,
between
fathers who have
biological
developed strong
custodial and
with their children and those
personal relationships
Lehr,
Quilloin Walcott,
who have not. See
v.
was over two old her mother and the years mother’s husband. The father lived with the mother before the biological child’s birth born, visited the mother in the when the child was but hospital never financial and never offered to provided support marry mother. he Because was not a member of class possible fathers who were statute notified of the required by adoption and had not entered his name in New York’s putative-father which would have entitled him to notice registry, of the adoption he did not find out about the proceeding, until it was adoption when he filed a already “visitation and pending paternity” peti- tion. When he to have the attempted adoption proceedings stayed, he was informed that the hаd been The already granted. Court held that until an unwed father demonstrates a “full com- mitment to the responsibilities forward parenthood” by coming in the of his participate interest in rearing personal contact with his child does not substantial acquire protection under the Due Process Clause. Id. at 261. The Court explained further as follows: significance connection is that it biological offersthe
natural father an that no other male possesses a develop with his Ifhe relationship offspring. grasps opportunity somemeasure accepts thechild’s he responsibility future, may enjoy blessings and make parent-child relationship valuable uniquely contributionsto the child’s If he development. so, automatically will the Federal Constitution fails to do the child’sbest of where to listen to his opinion a state compel lie. interests added).
Id. at 262 (emphasis a Lehr had never established the father in Noting financial or relationship” “significant, personal, therefore, and, constitutionality that it was assessing a relationship, for terminating develоped New York’s procedures New York concern was stated that its whether only the Court to form the unwed father’s opportunity protected adequately words, In other rather his child. Id. at 262-63. with relationship interest, deter- the Court an absolute than liberty recognizing connec- shared a mere that an unwed father who mined his child had an than a relationship tion rather developed in'order that he must interest promptly grasp “opportunity” the unwed father Id. Because merit constitutional protection. he mailed have received notice had merely postcard Lehr would two the child’s over before to the putative-father birth, that the New York statutes her the Court held after years the father’s “inchoate interest establishing adequately protected Id. at 265. with his child. a relationship” us, did not have an established In the case before appellant infant child at the time with his filed. Therefore under Lehr and its predecessors, to form ... issue before us is whether his “opportunity only Id. with his child was protected.” “adequately relationship” 263. Here, reсeived actual notice of December six On *9 summons, was served with adop- hearing, appellant tion, To the extent of and notice of deposition. that had right required protection any due-process — — Lehr, his he had an interest” and under merely “opportunity of his of actual notice interest was receipt adequately protected summons, in the form of pending adoption case and notice of In another regard- hearing. due we that notice be to satisfy given process, ing requirement stated: lawunder 380U.S. [Armstrong, of due process requirements 1187, 545, were that she have notice 62,] 85 S.Ct. 14 L.Ed.2d action her of the calculatedto
reasonably
apprise
pendency
and
afford her
to
her
objections. These
present
of due
were met.
requirements
process
We have heretofore
that one who was
recognized
apprisedof
an actionand aware the
pendency
nature
sought
relief
rendered,
was not entitled
judgment
to have the judgment
vacated, whether
was served on
process
him or not.
Flowers,
418,
347 Ark.
65 S.W.3d
Mayberry
(2002)
McKee,
Pender v.
266 Ark.
Appellant pending adoption. at the The fact that he appeared hearing. without an appeared was his choice to make. attorney We hold that appellant’s oppor interest was tunity in this case his adequately protected receipt of actual notice of the We therefore pending reject violated, that his have been argument and we due-process rights affirm the of the circuit court. judgment
Affirmed. Imber, JJ.,
Brown and concur.
Hannah, C.J., dissents. R obert L. I, too, Justice,
Brown, would concurring. but write to a salient It emphasize ..affirm occurs point. me that Mr. Escobedo had some to track obligation Ford’s Misty condition after he had sex with her if he ever unprotected planned claim notice of an and the Here, child. birth, Mr. Escobedo did resulting nothing prior the result was that the Nickitas filed for two weeks before the child was born. That was in November and the adoptive have now had the child parents since birth. Mr. Escobedo contends that once he found out he fiercely father, be the due to the exclusion
might of Ms. Ford’s boyfriend father, as the he took the child includ.- positive steps legitimate ing paternity testing Arkansas Putative registering
559 a month after was filed But his Father Registry. His after the hearing. and a week the adoption petition Moreover, later. was still registry with putative-father has taken that Mr. Escobedo conclusion I majority’s agree the child. for the custody no prepare significant steps of the Vermont Supreme I am reasoning by persuaded father to a of a biological which also considered rights Court and had failed unaware of when that father was pregnancy In that C.L., (Vt. 2005). 878 A.2d In re Juvenile, to act. See Court said: the Vermont Supreme once he became aware acted concludе that petitioner promptly
To
timetable is
misconstrue whose
is to fundamentally
of the child
life not
baby’s
in terms of
is measured
relevant. Promptness
demand for
action
prompt
awareness. The
the onset of the father’s
but
neither
nor
arbitrary
punitive,
at the child’sbirth is
the father
of the State’s legitimate
and necessary outgrowth
instead a logical
and stability.'
early
interest in the child’s need for
permanence
A.2dat2U.
Next,
case and
from an Arkansas
the Vermont Court quoted
said:
Robinson,
numerous courts
(1983)],
Since Lehr [v. burden to discover the exist that it is the father’s have concluded birth, child, notice of the or pregnancy ence of his even if he had no link into a to transform or risk losing 294 Ark. In re relationship. S.J.B., full and enduring parental father was unaware of (1988) (although S.W.2d re was not constitutionally notice of adoption proceeding in the not interested enough where father was “biological quired to even concerning encounter... inquire outcome of sexual of her possibility pregnancy”) [.] at 211-12. Id. hand, did act until after the Mr. Escobedo
In the case done to thаt much he could have There is prior adoption hearing. time, Ford’s condition on Ms. registering including checking were woe- The actions he took registry. putative-father reasons, affirm. these I would late in For my opinion. fully this joins concurring opinion. J., Imber, *11 560 While I Justice, concurring. Imber,
Annabelle Clinton
that the circuit court’s decision
case
in this
must be
affirmed, I cannot
with the
the
agree
reasoning presented by majority
I must therefore
concur in the
opinion.
respectfully
opinion.
In its
the
the
declines to address
issue of
analysis,
majority
whether Mr. Escobedo was entitled to receive
of the
notice
adop
tion
he
received actual notice of
by
the
hearing
simply noting
Flowers,
The
cites our decisions in
v.
hearing.
majority
Mayberry
McKee,
347
65 S.W.3d
(2002),
Ark.
418
Pender
Under Arkansas the of whether is question party entitled to receive notice of an must adoption hearing necessarily the with begin whether such is question party required consent The statute on a governing hearing adoption requires: (20)
At least the date twenty daysbefore of the of the filing and of time and shallbe place by given petitioner (1) any or whose agency person consent to the adoption this but who has not subchapter consented; and whose consent is with person dispensed upon mentioned in any ground 9-9-207(a)(1), (2), (8), and (6), § Ark. Code Ann. 9-9-212(a) 2002). Ark. Code (Repl. Additionally, § states, Ann. 9-9-224(b) “When information the child is concerning § contained in the father at the time of the putative registry notice of the shall be adoption proceedings served on the unless waived registrant registrant writing Id.; see also signed Ark. Code Ann. notary public.” 20-18- § Thus, (Repl. 2005). entitled to notice of an etseq. only people are those whose consent adoption hearing persons fathers who hаve required, or registered registry, with any ground upon consent is whose dispensed those persons and (9). (2), (6), (8), 9-9-207(a)(1), in section mentioned one of the above- fall into does not Mr. Escobedo clearly he would way 9-9-207(a). only in section listed categories were be if his consent would to notice of entitled he had filed 9-9-206 or if Ann. to Ark. Code required pursuant § 9-9-224. Ann. under Ark. Code *12 not, to the hearing, did that Mr. Escobedo prior It is undisputed or otherwise legitimate father file with Moreover, even the majority Arkansas law. to child according to be that notice did not provided “that the statutes require agrees filed.” in this case was at the time — that because Mr. fact, the In proposition appellees’ his consent was of the entitled to notice hearing SCD, was not Escobedo — Ark. in In re true. While holds required rule that the of to we declined adopt 225 (2004), S.W.3d the of cutoff date for constitutes the purposes adoption such a consent to to the father’s right determining is not of: that consent to These subsections adoption required provide has affording of identification or who without means (1) who has deserted a child A parent child; abandoned a (1) at least one if the for a of another, in the of
(2) A of a child parent period parent (i) communicate with the child or justifiable cause significantly failed without has year judicial decree; child as law or (ii) the care and of the by required support provide defective if the court (6) or judicially A declared mentally dispenses incompetent parent consent; parent’s be other than a (8) of the individual to legal guardian or lawful custodian adopted, Any for a of writing to a or consent has failed to sixty who request period parent, respond withholding consent is of his written reasons who, or after examination withholding or be his consent found the court to unreasonably; by to consent to the to be if the failure of (9) The of the individual spouse adopted, spouse unavail- prolonged absence, the court reason is excused unexplained by adoption withholding of consent. constituting an unreasonable or circumstances ability,incapacity, 2002). 9-9-207(а)(1), (2), (6), (8), (9) (Repl. Ann. Ark. Code § rule must exist in to the relation brightline necessarily hearing law, itself.2 to Arkansas all whose consent to According parties are entitled to notice. Ark. Code Ann. required addition, consent some whose is not 9-9-212(a)(l). parties § are nonetheless entitled notice. Ark. Code Ann. required notice must 9-9-212(a)(2). Finally, proceeding § be served on any person registered Ark. Ann. 9-9-224(b). Code scheme does registry. statutory § not, however, who are contemplate category persons separate entitled to but whose consent is nonetheless required. The rationale for the statutory provisions governing adop- tion more could not be obvious: on the purpose is to determine whether the should be Such a determination granted. involves consideration necessarily whether all have consented to the necessary parties adop- Thus, tion. the issue of whether as a party qualifies person to consent to the Code required Ann. adoption pursuant 9-9-206 must determined to the In other prior hearing. words, the class consent to persons сlosed the time of the on the If the adoption petition. is not a member of that class no party actions on *13 his or her the after the can then make him or her of part hearing part this class.It is for reason that the In re SCD, decision in supra, is from the case at hand. distinguishable SCD, In In re the father had filed with the putative putative father and was entitled to notice of registry the consequently Moreover, the of the actions father adoption proceedings. in to a test and of the child submitting all were seeking custody the the on completed The issue hearing adoption petition. before actions, in casewas whether such after the of completed filing the but the before on the adoption could petition petition, be considered in whether the had father “otherwise determining 2 legislature The has it clear made that the relevant date is the date of the subsequently filing of the for of Act 437 codified at Ark. Code 2005, Ann. 9-9- § 207(10), (11),provides that the father’s consent to not is where the putative adoption required significant father has failed еstablish a or financial custodial, putative personal, juvenile to the time the filed. Ark. is Code Ann. prior 9-9-207(10), (11) (Supp.2005). 20-18-702(c) Code Ann. now § Additionally,Ark. § provides registry that the father the information birth to the of the child or putative “may accept prior at filing time 20-18-702(c) to the the Ann. Ark. Code any prior adoption.” 2005). (Repl. 51, SCD, 186 S.W.3d re the child. In legitimated” Id. considered. actions were held that the properly We (2004). father the had not filed with putative Mr. this Escobedo before the the child had “otherwise and not legitimated” registry of the entitled the and thus was not on petition, that, Moreover, demonstrates any the above analysis petition. at consent the father’s required casewhere putative of the entitled to notice the father is also time of such the hearing, father’s consent where the but in case putative hearing, the actions on the no subsequent time of a consent father will resurrect of the requirement. putative part result there is of the nothing putative harshness after a child the hearing can do “otherwise legitimate” father has filed with father where аdoption petition must of the and the need for with state’s interest in finality balanced The New York Court action in proceedings. prompt stated: Appeals once he aware
To conclude that
acted
became
promptly
petitioner
timetable is
of the
is to
misconstme whose
fundamentally
of the
life not by
relevant.
is measured in terms
baby’s
Promptness
demand
action
the onset
father’s awareness. The
for prompt
but
arbitrary
the father at the child’sbirth is neither
nor
punitive,
necessary
legitimate
instead
and
State’s
logical
outgrowth
stability.
interest
the child’s need for
early permanence
Robertson, 45 Ohio St.
313
have
(1984). Numerous courts
also
L.J.
concluded that “it is the
burden
father’s
to discover the existence of
child,
birth,
his
even if he had no
notice
or
or risk
pregnancy
to
a full
transform
link into
losing
207,
C.L.,
In re
A.2d
enduring
878
211
parental relationship.”
(citing
598,
D.,
In re
294 Ark.
Court
in Lehr v.
U.S.
463
248
is that all that
(1983),
for the
father to be entitled to notice is for
putative
him
Robertson,
file with the
v.
father
Lehr
463
putative
U.S.
registry.
248, 264
to receive notice
(1983) (“the right
completely
[is]
within
see also
control”);
Ann.
putative
Code
[the
father’s]
20-18-701 et
Such
have
been
as
seq.
registries
repeatedly
upheld
§
sufficient
for the constitutional
protection
fa
rights
putative
See,
Robertson,
S.H.,
thers.
v.
Lehr
State ex rel
e.g.,
P.3d
supra;
C.L.,
In re
(Utah 2005);
878 A.2d
(Vt.
Matter
2005);
K, 546 N.W.2d
Boy
Utah first
Baby
(S.D. 1996).
its
upheld
as
Utah,
constitutional
v.Wells Children’s Aid
Societyof
Much like the Arkansas statute .the concerning putative father the Utah statute does not registry, provide U.C.A., fathers who fail register registry. Indeed, statute 78-30-4(3). Utah specifically provides: §
Any father of such child who failsto file and his notice of register claim to paternity shall agreement support be barred from thereafter or bringing action to estab- maintaining any lishhis of the child. Such failureshallfurther constitute of said abandonment child and a waiver and surrender of any right to notice to a of or any judicial for the proceeding adoption of said consent of such to the adoption of such child shall required. U.C.A., 78-30-4(3). harsh conse- Despite of failure Utah courts have
quences register, held repeatedly the statute to be sufficient father’s protection
565 Services, 680 P.2d v. L.D.S. Social In Sanchez constitutional rights. held court the Utah (Utah 1984), example, supreme a father from the statute barred a obtaining putative the father failed to file where child born out of wedlock to sоcial until the after the child was relinquished registry day father, Sanchez, filed the the fact that services. Despite born, the court after the child was four with the registry only held, “It is no constitutional nonetheless importance with the statute. Because came close to Sanchez complying statute, a firm cutoff date dealt with nature of matter subject reasonable, at if essential.” Id. 755. is Likewise, its Court has the Oklahoma upheld Supreme statutes, are similar our and notice which substantially registry are that certain The Oklahoma statute persons statutes. provides includ- to notice of a to terminate rights entitled parental ing: in this state be the father of
1. a court any adjudicated by person child; is child’s birth certificate as the 2. who recorded any person father; child’s the child and child’s living
3. who any person openly time initiated or at the time the mother proceeding in an and who is child was the care of authorized agency, placed father; out to be the child’s holding himself 4. who has been identified as child’s any person statement; mother a sworn ten who married the child’s mother within any
5. person child; or to the birth of the (10) months prior subsequent who had filed with instru- 6. person paternity ment to Section 6 of pursuant acknowledging this Act. court, The Oklahoma
Title 10 O.S.1991 29.1(B). appellate P.2d held that a (Okla. 1995), Matter C.J.S., he were not violated when did father’s constitutional rights where he notice of a to terminate his rights receive parental *16 terms, not did meet statutory including case, As in this the trial court had nonetheless registry. provided notice, but the Oklahoma court stated:
We hold that notice to Tariah not putative was [the father] either the under our statutesor Due ProcessClauseof required, caution, the Federal Constitution. In an abundance of the trial courtauthorized noticein the publication order insure of validity the these We adoptionof children. neednot addressthe sufficiency of unnecessary the notice. publication So, too, case, Id. 309. in the instant Mr. Escobedo was entitled under our statutes or Due the Process Clause of the Federal Constitution, and notice he received was unnec- consequеntly, any and need not be addressed. essary
Moreover,
the fact that Mr. Escobedo was unaware of the
held,
child’s existence in this case is immaterial. We have
along
courts,
with numerous other
that the
father’s lack of
putative
is not sufficient
knowledge
which to
him
grounds upon
exempt
the
from
In re
294 Ark.
statutory
requirements.
S.J.B.,
S.W.2d 606 (1988) (reversed on other grounds) (“the biological
father was not interested
in the outcome of his sexual
enough
encounter ...
to even
of her
inquire concerning
possibility
see
K,
also reIn
pregnancy”);
Boy
(S.D.
Brown, J., joins. I dissent. dissenting. respectfully Chief Justice, Jim Hannah, case as whether in this characterizes issue rela- interest” forming Escobedo’s Wayne Rusty “opportunity This his infant “adequately protected.” daughter tionship interest was adequately concludes that Escobedo’s court opportunity business of notice four his receipt protected by I believe know existed. a child he did not regarding his daughter legitimate was denied that Escobedo United father under the as right in contravention Also, concerning common law principles States Constitution. I believe that heаring were also natural ignored. rights parents *17 turned to was had to consent improperly whether Escabdeo adoption his as a on fitness a into hearing parent. 2004, had Ford and Escobedo are that in March
The facts and A was conceived sexual intercourse. daughter unprotected he 3, to Escobedo’s testimony, December 2004. According born months other for three or four Ford had been each and seeing intercourse, other had known each and when had sexual they they at all that Ford knew He also testified since the seventh grade.1 his but had reach him times she could through parents that Ford had been do Escobedo learned to so. only attempted 2004, 14, on December had birth to a and given baby pregnant for an a and when he was served with summons 20, 20, It at the December on December 2004. was only hearing 2004, were that the results from presented paternity testing time, he At knew certain that was father.2 this and Escobedo for and other also served with a notice of deposition pleadings. he was 16, December to the notice of Pursuant deposition, 2004, of at the law offices counsel representing Escobedo appeared counsel for the his even for though adoptive parents deposition Civ. of Ark. R. Nickitas failed to comply requirements to and submitted 27. He to P. submitted deposition, He retained denied his Escobedo has never paternity. testing. and filed and to timely counsel responded father He filed with the to establish paternity. that Ford had delivered within fourteen days learning registry “one-night-stand.” the child was born The circuit court concludes that was was relevant. how the child conceived conclusion, evidence does not this and support Gibbons filed 2, 2004, On December Billy Ray listing Ford as mother. Misty he had fathered. to his he stood According testimony, ready take of his had his mother custody daughter, agreed quit work and care daughter. 19, 2004, on November Mark and Previously, Jennifer
Nickita filed a Ford adoption seeking adopt Escobedo’s under verification that the father daughter, affirming was unknown. At on December Ford as the It acknowledged Escobedo father. that at the appears very least there was less than undertaken before adequate investigation petition. born, On that Ford and Escobedo’s day daughter Ford a consent form and a form signed agreeing date, of the child to the Nickitas. that same delivery On an order was entered the Nickitas to take allowing of the child. did so. This was eleven They before Escobedo days knew of the child. It should be noted that Escobedo received six only
notice of the set for December Monday, two which were The trial Saturday court’s Sunday. order is unclear and states: granting adoption finds, it,
The Court based on the credible evidence before that the encounter, conception Baby Nickita occurred as the result anof *18 stand,” referred to “one commonly as a night involving unpro- union, tected sex. After that chance made no Respondent to effort determine a whether resulted from pregnancy this brief The encounter. Court finds that he had the means and ability to have taken such action if he had wished to do so. The Court concludes, it, based on the crediblе evidence before that Mr. Escobedo failed to file with the timely Putative Father Registry. He further failed to take action to timely meaningful otherwise Baby Nickita. While there legitimate be no may time explicit action, come, minimum, for such it period should at a before the date set for final on the adoption. order,
From the it the circuit court concluded that appears Escobedo failed to a establish constitutionally protected relationship with his daughter by Ford was to determining pregnant failing file with the before his child’s birth or before also Escobedo is faulted for his hearing. failure to “otherwise whatever that means. legitimate”
569
it clear that
has made
Court
The United States Supreme
constitution,3
fact of biological parentage
under the federal
“[t]he
to
a
...
develop
a
‘an
offers
only
opportunity
generally
person
”
Minnesota, U.S.
497
with his
Hodgson
offspring.’
relationship
248, 262
Robertson,462 U.S.
417,
Lehr v.
445 (1990) (quoting
an
has an
adequately protect
The State
(1983)).
obligation
role in
“inchoate interest in assuming
unwed father’s
responsible
Lehr,
248. “Parental
462 U.S. at
rights
future of his child.”
inchoate; it is the
are
assump
on the
based
biological relationship
which is of constitutional
tion of the parental responsibilities
Doe,
(Fla.
543 So.2d
748
In reAdoption
significance.”
ofJohn
under an
“grasp
The unwed father is
obligation
1989).
his
Id.
unwed father must
oppor
An
“quickly grasp
opportunity.”
N.E.2d 747, 751 (Ind.
interest.” In reAdoptionof J.D.C.,
tunity
this
is obvious. A child’s
The reason
is
2001).
Ct.
App.
cannot be
need for
stability
postponed.
permanence
the facts in
case
from
widely
The facts of the
depart
present
Court
the United States
the cases handed down by
Supreme
did not
interest. They
concerning
concern an unwed father who
preservation
of the child four
learned of the birth
Lehr,
Pursuant
business days
father acts.
until the unwed
do
attach
rights
supra,due-process
of whether Escobedo’s opportunity
Aside from
question
with his child was
interest
relationship
adequately
developing
with the issue of whether
this court
also faced
protected,
with his
Escobedo had any opportunity
develop
S.C.D., 358
court in In re
Ark.
This
S.W.3d 225
daughter.
that an unwed
that there is no
stated
(2004),
temporal requirement
some
or
father commence
complete legitimization
as
certain date or event such
adoption petition.
be reconciled
in the
case cannot
decision of majority
present
S.C.D,
unless the
holding
by failing
majority
supra,
enjoyed
greatest rights over an
Arkansas,
law in
the mother
Under the common
Childers,
else.” Waldronv.
being
rights
her
to that
illegitimate child,
anyone
“superior
strangers,”
“as
the father of an
However,
between
1030, 1031
S.W
206, 210, 148
*19
of an
the
law in Arkansas.
father
illegitimate
was
under
common
child
preferred
stranger
child”
a
in
over the
illegitimate
“rights
child has
to
superior
disputes
Battle,
Frederick,
v.
(citingLipsey
80 Ark.
Roque
667, 669
S.W.2d
392, 396, 614
Grubbs,
(1980),
in Leev.
97 S.W.
205, 599
269 Ark.
S.W.2d 715
Consistently
illegitimate
enjoys
the
over
again indicated that
father
the
the court
preference
he is
strangers unless
unfit.
father
the
the
on
register
registry
hearing
to
the
for
to
by
adoption,
failing
respond
petition
due,
before the
and before a
was
Escobedo failed
hearing,
response
to availhimself of an
to
a
with his
develop relationship
Neither the rules of civil
due
daughter.
nor
procedure
process
condone
a
with a summons and
defense
serving person
requiring
the casereferenced in the
within four
on
summons
business
service,
counsel,
without the
of retained
and before a
presence
to
summons is even due.
response
Escobedo filed with the
soon after
and also
a
filed
to establish
hearing
petition
paternity.
T.F.,
S.C.D.,
father,
filed both before the
adoption.
However, T.F. was aware of the
and that he
pregnancy
father. In
while the facts of S.
and the
C.D.
case are
reality,
present
similar, the decision reached
court
strikingly
this
in S.C.D. and
S.C.D., T.F.,
case could not be more dissimilar. In
present
a
to
to
prevailed
asserting right
in the
object
case, the father
lost his
to asserta
present
to
right
object
attempt
to
T.F. in
never
S.C.D.
denied
adoption.
Escobedo
paternity.
never denied
T.F. filed a
paternity.
response
petition
Escobedo filed
within two weeks and well
adoption.
within the
response
allowed time. T.F. “embraced”
statutorily
paternity by
S.C.D.,
himself.
571 too, at least to his daughter, case? Escobedo legitimized Clearly, S.C.D, the few he in if more given the extent required had before the hearing.
However, between distinctions there are some admittedly noted. In that should be case and S.C.D. the facts оf the present life in a and was S.C.D., way T.F. college preparing pursuing is not is not. Escobedo pursing the father in case present I in works at low wage manufacturing. but instead jobs college, in the covers pages. also note that Escobedo’s testimony include five of those 23 pages course pages, approximately his child. The vast to relevant to Escobedo’s relationship questions Escobedo’s fitness as a were directed to of majority questions However, in facts matter that was at issue this hearing. a parent, were elicited Nickitas make better to show would parents court once said that: than This Escobedo. We in Verserv. be to naturaldesires. said given must regard [D]ue Ford, 27, nature “It is cardinalprinciples 37 Ark. one — that, humble and the father however oflaw asagainststrangers, oflife, and the style if the child hisown ableto support
poor [if — cannot, character, without most moral good be] . . . however shocking injustice, deprived privilege, be.” advantages may brilliant[the offered] 512-13, 190 S.W.2d Taylor, Hazelip At the December I have further concern. had but that court that he counsel Escobedo informed the
hearing, his went forward could not be there that The day. attorney court, it. because, had notice of to Escobedo according Nickitas, court then informed Escobedo that the petitioners, evidence that were they had clear convincing prove words, that Esdcabedo’s consent entitled to or other have continued the The circuit court should not required. been until Escobedo’s counsel could have matter present. for the Nickitas raised issue At the counsel issue that is relevant to Escobedo’s fitness as a This an parent. found himself in termination of his Escobedo rights. parental were his morals and being where integrity adversarial proceeding court he should not be in an convince the challenged attempt his when what was at issue was whether given had been adequately develop relationship daughter himself of an whether he had failed avail oppor- protected with his If the circuit tunity court develop daughter.
considered
evidenсe offered
the Nickitas to show
Escobedo was not a fit
then
termination of
parent,
arguably
issue,
so,
were at
and if
Escobedo was entitled to
parental rights
State,
4,
counsel. Briscoev.
323 Ark.
I also must note that at the counsel for the Nickitas relied Arkansas heavily upon Code Annotated Section 9-9-206 This 2002). code section is (Repl. in constitutionally suspect failing fathers as adequately protect under putative required Lehr, Lehr, Under a supra. father’s putative establish a attempt substantial with his child determines relationship constitutional afforded the protection If the facts of this case were relationship. Lehr, similar to the facts in we be would whether examining Escobedo failed to take advantage opportunity develop However, with his child. in this relationship is question whether there is he could have done but did not anything do to establish such a in the few before the days hearing. Lehr does not stand for the that where a proposition notice, four given business and has done all that can be in those four he has failed to accomplished days, establish a The statute him object right relationship giving to an inchoate Escobedo’s right does not adequately protect as with his daughter to develop relationship Lehr. under father registry with I do not believe aas con- intercourse is required sexual having
upon unprotected this court. the other under Lehr or opinions dition precedent4 had. in the time he Lex did Escobedo what reasonably possible of the law. Heong is a familiar maxim non intenditaliquidimpossible States, does intend that The law 112 U.S. United This inconsistent met. requirements opinion impossible this Lehr, inconsistent with court’s holding set out principles reversed circuit court should be and the decision of the S.C.D. the best as be. a decision would serve as Such may regrettable *22 future. of the children who will interest adopted RICE, FRITZ and MERTICE LEHMAN HARVEST INC. v. DRYER, INC.
ELEVATOR and d/b/a Lehman Elevator S.W.3d720 05-716 Court of Arkansas Supreme 9, 2006 delivered March Opinion denied 13, 2006.] [Rehearing April fathers to notice of father to entitle putative purpose registered. pertaining to the whom the has legal proceedings child for 2005). 20-18-702(a)(2) (Repl. Code Ann. §