Lead Opinion
| jAрpellant J.E.M., biological father of Baby Boy B., appeals from a Faulkner County Circuit Court order that determined that his consent to the adoption of Baby Boy B. was not required pursuant to Arkansas Code Annotated section 9-9-206(a)(2) (Repl.2009). Appellant argues that the circuit court erred by finding that his consent to the adoption was not required, by granting the decree of adoption in favor of appellees G.F.J. and S.L.J., and by finding that Arkansas Code Annotated sections 9-9-206(a)(2) and 9-9-207(a)(ll) do not violate the Constitution of the United States. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(S) and (4) (2011), as the issues presented involve federal constitution interpretation and are of significant public interest. We reverse and remand.
Appellant and S.M.B. began dating while both were attending Southeast Missouri State University. In 2009, S.M.B. discovered that she was pregnant, and she and appellant visited |2Birth Right to get information about the pregnancy. S.M.B. signed up with an adoption agency and told appellant of her plans afterwards. S.M.B. told appellant that she would leave Missouri for the adoption; although appellant inquired where she would be going, she refused to tell him.
Shortly after learning of the adoption plan, appellant contacted an attorney in Missouri in order to find out about his parental rights. He did not ultimately retain that attorney. Appellant then filed with the Missouri Putative Father Registry on March 30, 2010. S.M.B. departed Missouri on or about May 13, 2010, moving to Lubbock, Texas, into housing furnished by Adoption Covenant, a non-profit child-placement agency. While S.M.B. was in Texas, she and appellant communicated by text messages and telephone calls, but she continued to conceal her whereabouts, even when appellant inquired. Appellant repeatedly told S.M.B. that he wanted them to be a family so that they could raise the unborn child together. However, appellant informed S.M.B. that the decision whether to put the baby up for adoption was hers.
Initially, the adoption was to be filed in Texas, and Adoption Covenant had an attorney draft the appropriate documents. In June and July 2010, that attorney sent several sets of documents to appellant so that he could relinquish his parental rights. Appellant refused to sign the documents, and he filed an original petition to establish parentage and an original petition affecting the parent-child relationship in Lubbock, Texas, on July 23, 2010. On July 24, 2010, ^appellant signed with the Illinois Putative Father Registry.
On or about August B, 2010, appellant filed with the Texas Putative Father Registry. He attempted service on S.M.B. of the petition he had filed in Lubbock, Texas, but was unsuccessful. Appellant then learned that S.M.B. had moved to Arkansas, but was unaware of her specific location. He filed with the Arkansas Putative Father Registry on or about August 17, 2010. S.M.B. signed a relinquishment of parent-child relationship and a consent to guardianship and adoption on September 3, 2010. Baby Boy B. was born on September 4, 2010, in Washington County, Arkansas, and was placed with appellees in Pulaski County, Arkansas, on that same day. Appellant was not informed of the birth, and on September 8, 2010, filed a complaint for paternity and custody of an unborn child in the circuit court of Washington County, Arkansas.
A petition for temporary guardianship of Baby Boy B. was filed on September 8, 2010, in Faulkner County, Arkansas, stating that the putative father had never bеen married to the biological mother, that he had provided no support, and that his consent was not required pursuant to Arkansas Code Annotated section 9-9-206. The circuit court found that the matters stated in the petition were true and entered an order on September 9, 2010, appointing 14Grace Adoptions as temporary guardian. Appellees filed a petition for adoption on September 13, 2010, and appellant filed a complaint in intervention on or about October 19, 2010. On October 26, 2010, appellant filed a motion to transfer and consolidate the Washington County proceeding with the Faulkner County adoption case. The motion was granted, and in Faulkner County Circuit Court, there was a guardianship case and a separate adoption case.
On November 16, 2010, a hearing was held to determine whether appellant’s consent was required pursuant to Arkansas Code Annotated section 9-9-206. At the conclusion of the hearing, the circuit court determined that appellant’s consent was not required. A decree granting the adoption of Baby Boy B. to appellees was entered on January 5, 2011. Appellant filed two separate appeals, one as to the guardianship and one as to the adoption. The instant case is a timely appeal from the decree of adoption.
We review issues of statutory construction de novo, as it is fоr this court to decide what a statute means. Daimler-Chrysler Corp. v. Smelser,
Appellant argues that the circuit court erred in finding that pursuant to Arkansas Code | ¡Annоtated section 9 — 9—206(a)(2) his consent to the adoption was not required because he failed to develop a significant custodial, personal, or financial relationship with Baby Boy B. He seeks reversal of the judgment, vacation of the decree of adoption in favor of appellees, and remand to the circuit court to allow him to proceed on his complaint for custody. The circuit
Section 9-9-206(a)(2) reads 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 physical custody of the minor at the time the petition is filed, he has a written order granting him legal custody of the minor at the time the petition for adoption is filed, a court has adjudicated him to be the legal father prior to 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[.]
The basic rule of statutory construction is to give effect to the intent of the legislature. State Office of Child Support Enforcement v. Morgan,
[T]he power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that ‘the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severanсe of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation .... Every intendment should have been in favor of the claim of the mother under the evidence, and if the statute was open to construction and interpretation it should be construed in support of the right of the natural parent.’
Id. at 62-63,
We have also recognized that changes made by amendments may be helpful in determining legislative intent. Am. Cas. Co. v. Mason,
In 2005, the General Assembly amended Arkansas Code Annotated sections 9-9-206 and 9-9-207. Act 437 was entitled “An Act to Clаrify the Law Regarding Adoption Consent and Subsidized Adoptions.” The Act deleted the “otherwise legitimated the minor” language from section 9-9-206(a)(2), replacing it with the requirement that, for the father’s consent to be a prerequisite to an adoption, he must have a written order granting him legal custody at the time the petition for adoption is filed, or he must prove that a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption was filed. Section 9-9-207 was also amended, adding subsections (10) and (11), which state that no consent to adoption is required of a father who fails to establish a significant custodial, personal, or financial relationship with thе minor prior to the time the petition for adoption is filed, even if that father is listed on the Putative Father Registry or has signed an acknowledgment of paternity.
This legislative response to In re Adoption of SCD utilized language from Lehr v. Robertson,
[t]he 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,
Appellant argues that there was only a period of approximately nine months within which he could have possibly formed a significant custodial, personal, and financial relationship with Baby Boy B. That period began in January 2010, when he learned of the pregnancy, and lasted until
We have not previously considered a situation where a father’s efforts to comply with section 9 — 9—206(a)(2) were thwarted by the mother of his newborn child. While the Arkansas Court of Appeals in X.T. v. M.M., supra, examined what constitutes a significant custodial, personal, or financial relationship under section 9 — 9—206(a) (2), we do not find its analysis applicable. In finding that the putative father’s consent to the adoption was not required, the court in XT. relied on several factors that distinguish that case from this present appeal. Specifically, the putative father was abusive toward the mother, causing her to limit contact with him. Also, the father’s argument that he could not contribute to the child’s support because he was unaware of the mother’s address was not credible in light of his knowledge of the name and telephone number of the person with whom the mother was living. Finally, there were several persons with whom the father could have established indirect contact so as to render assistance or inquire about the mother’s condition. In addition, XT. relies on a concurring opinion from the Kansas Court of Appeals, In re Adoption of M.D.K.,
Other jurisdictions have analyzed the efforts of the “thwarted putative father” in the | incontext of adoptions, and while their consent-to-adoption statutes differ from Arkansas’s statute, their analysis is instructive as it relies on Lehr, supra. In Matter of Raquel Marie X.,
In Roe v. Reeves,
[W]e do not always require strict compliance with the literal requirements of section 63 — 9—310(A)(5)(b). For example, a father’s ability to cultivate the sort of relationship we recognized in Abernathy [v. Baby Boy,313 S.C. 27 ,437 S.E.2d 25 (S.C.1993) ] can be thwarted by the mother’s refusal to accept the father’s expressions of interest in and commitment to the child. We therefore extend the constitutional protection of a father’s relationship with his child “not only when he meets the literal requirements of section 63 — 9—310(A)(5)(b), but also when he undertakes sufficient prompt and good faith efforts to assume parental resрonsibility and to comply with the statute.” Otherwise, a father’s In constitutional right to form a relationship with his child that receives constitutional protection is subject to the whim of the mother.
Id. at 782 (internal citations omitted). In Abernathy, both the baby’s mother and father were in the military when the mother became pregnant. The father provided some financial support during the pregnancy and expressed an interest in marrying the mother. When the father returned from sea duty, the mother determined that she did not want any further contact with him and attempted to hide from him. The father found out about the birth when the adoption action was filed and sought to intervene. The South Carolina Supreme Court recognized that his efforts to cоmply with the adoption statute had been thwarted by the mother’s actions. Thus, Raquel Marie X, Abernathy, and Reeves affirmed that an unwed father seeking to enforce his right to object to an adoption of his minor child can establish good cause for failure to comply with the literal requirements of an adoption statute when his efforts were thwarted.
In this case, appellant testified regarding his efforts to form a significant custodial, personal, or financial relationship with Baby Boy B. in light of S.M.B.’s efforts to thwart him. He told his friends and his mother that S.M.B. was pregnant when he found out. He stated that he tried to go to the doctor with her but, despite his efforts, was unable to clear his schedule. They visited Birth Right, a place that furnishes basic information about pregnancies. He testified that he was romantically involved with S.M.B. from January until the time she left Cape Girardeau, Missouri, on approximately May 13, 2010. During that time, she stayed at his apartment approximately three to four nights a week, and they discussed the pregnancy. He stated that she never had much morning sickness, but he would rub her stomach and her 112back to try to comfort her as she was under a lot of stress. He purchased S.M.B. a Valentine’s Day present, which consisted of a massage for her and the baby as well as a multi-purpose diaper/school bag. Appellant realized S.M.B. was leaving Missouri when she signed with an adoption agency; however, she would not inform him when or where she wаs going. Appellant stated that he ascertained she was living in Texas by contacting the adoption network through which she was working, and he was able to discern a partial address when she sent him an ultrasound of Baby Boy B. However, during this time, S.M.B. refused to give to him her exact address. Appellant testified that he expressed to S.M.B. concern for her welfare and that of their unborn child, and he suggested a name for the baby. He stated that he told S.M.B. that he was always there for her.
Appellant stated that he contacted four different attorneys, two in Missouri, one in Texas, and one in Arkansas. He said that
|l3After considering the testimony of appellant, S.M.B., and thе exhibits, the circuit court found that appellant had done all that he could do to protect his rights under the circumstances. This court gives great deference to a circuit court’s findings of fact. Save Energy Reap Taxes v. Shaw,
Under the circumstances presented in this case, appellant took steps to form a significant custodial, personal, or financial relationship with Baby Boy B. He had not only filed with the putative-father registries in four states but had also filed paternity actions in both Texas and Arkansas. He had provided some support to S.M.B. during the pregnancy and had established an account for the suppоrt of the baby. Appellant did not furnish financial support to S.M.B. after she left Missouri, but she refused to inform him of her specific location. While appellees suggest that he could have done more, that is not the question. Instead, the question is whether appellant’s efforts to establish a significant custodial, personal, or financial relationship, in light of S.M.B.’s thwarting of his efforts, were sufficient such that his consent to the adoption was required pursuant to section 9-9-206(a)(2). We hold that they were. And, because they were, the circuit court’s finding that appellant’s consent to the adoption was not required is clearly erroneous. Accordingly, we reverse the finding that appellant’s consent is not required, vaсate the decree of adoption, and remand for further proceedings consistent with this opinion.
Appellant’s second argument is that because he demonstrated that his consent to the adoption was required, the circuit court erred in granting the adoption in favor of appellees pursuant to Arkansas Code Annotated sections 9-9-206(a)(2) and 9 — 9—207(a)(ll) without a 114finding that appellant unreasonably withheld consent under Arkansas Code Annotated section 9-9-220. Appellant requests that we vacate the adoption and allow him to proceed in his complaint for custody or, in the alternative, vacate the adoption and remand for a determination of whether he unreasonably withheld his consent. Considering our disposition of appellant’s first argument, it is unnecessary for us to address this argument.
Appellant’s third argument is that Arkansas Code Annotated sections 9-9 — 206(a)(2) and 9-9-207(a)(ll) are unconstitutional. While appellant clearly requested the circuit court to rule on this issue, the court declined. The order states:
[Appellant] properly requested a ruling on the constitutionality of Ark.Code Ann. § 9-9-206 and 9-9-207, but the Court declined to rule on the constitutionality of said statutes. The constitutionality arguments were properly raised and preserved for appeal.
The order is incorrect in finding that the constitutionality arguments are preserved
Reversed and remanded.
Notes
. Appellant testified that he filed with the Illinois registry because it was where S.M.B. lived before attending college, and he thought she might return there to have the baby.
Concurrence Opinion
concurring.
Here, J.E.M. was required to present proof 11sof a significant custodial, personal, or financial relationship in order for his consent to be required pursuant to Arkansas Code Annotated § 9-9-206(a)(2) (Repl. 2009).
Custodial Relationship
In the case before us, the child at issue was in útero, and it is undisputed that J.E.M. did not have legal or physical custody of his child; thus, the relevant inquiry is whether J.E.M. had a significant custodial relationship with Baby Boy B. The term “custody” has been defined as “[t]he care and control of a thing or person for inspection, preservation, or security.” Black’s Law Dictionary 441 (9th ed.2009). However, as one court has observed, “[i]n the case of a child placed for adoption at birth, the father can have no more than a biological connection to the child, there having been no chance for a custodial relationship.” In re Raquel Marie X.,
[I]n in adoption proceeding by strangers, an unwed father who has been physically unable to have a full custodial relationship with his newborn child is also entitled to the maximum protection of his relationship, so long as he promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child.... This implies, however, that in order to have the benefit of the maximum protection of the relationship — the right to consent to or veto an adoption — the biological father not only 116must assert his interest promptly (bearing in mind the child’s need for early permanence and stability) but also must manifest his ability and willingness to assume custody of the child.
Id. at 402,
It is my opinion that, despite the mother’s continued attempts to evade J.E.M. and keep her whereabouts secret, J.E.M. nonetheless embraced all possible methods of establishing that he was the child’s father and his desire for custody. While the adoptive parents argue that attempts at such a relationship are insufficient, or in essence, that strict compliance is required, I disagree. In Abernathy v. Baby Boy,
Against this background, we must ascertain the interaction between the requirements of section 20-7-1690(A)(5)(b) and the unusual facts before us. As аlways, our primary function in interpreting a statute is to ascertain the intent of the Legislature. Spartanburg Cty. Dep’t of Social Svcs. v. Little,309 S.C. 122 ,420 S.E.2d 499 (1992). A statute must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. Id. We find that by enacting section 20-7-1690(A)(5)(b), the Legislature contemplated establishing general minimum standards by which an unwed father timely may demonstrate his commitment to the child, and his desire to “grasp [the] opportunity,” Lehr,463 U.S. at 262 ,103 S.Ct. 2985 , to assume full responsibility for his child. However, as shown by the events leading to this appeal, an unwed father’s ability to cultivate his opportunity interest in his child can be thwarted by the refusal of the mother to accеpt the father’s expressions of interest in and commitment to the child. Accordingly, we conclude that an unwed father is entitled to constitutional protection not only when he meets the literal requirements of section 20 — 7—1690(A)(5)(b), but also when he undertakes sufficient prompt and good faith efforts to assume parental responsibility and to comply with the statute. See In re Chandini,166 A.D.2d 599 ,560 N.Y.S.2d 886 (1990); In re Adoption of Baby Girl S.,141 Misc.2d 905 ,535 N.Y.S.2d 676 (NY.Surr.1988); In re Baby Girl Eason,257 Ga. 292 ,358 S.E.2d 459 (1987); In re Riggs,612 S.W.2d 461 (Tenn.Ct.App.1980), cert. denied,450 U.S. 921 ,101 S.Ct. 1370 ,67 L.Ed.2d 349 (1981). To mandate strict compliance with section 20-7-1690(A)(5)(b) would make an unwed father’s right to withhold his consent to adoption dependent upon the whim of the unwed mother. See In re Adoption of Baby Girl S.,141 Misc.2d 905 ,535 N.Y.S.2d 676 (NY.Surr.1988).
Id. at 29 (emphasis added).
Likewise, this court should recognize “sufficient prompt and good faith efforts to assume parental responsibility and to comply with the statute.” Id. at 29.
Personal Relationship
Again, the fact that the instant child was in útero must be taken into consideration when determining whether J.E.M. proved a significant personal relationship with the child prior to the adoption petition being filed. It is my opinion that he did and certainly so if we consider whether he made sufficient prompt and good faith efforts to do so. A review of the testimony before the circuit court demonstrates that J.E.M. never indicated his direct support for the route of adoption; to the contrary, he several times indicated his desire to the mother that they be a family. He further indicated his willingness to move closer to her family and to obtain a job to support the baby, and he certainly demonstrated care and empathy toward the mother during her pregnancy, both while she was near him and when she was evading him. J.E.M. inquired as to the mother’s health, what was good for the baby, and its welfare. He further thought of 11flnames and embraced the idea of being a father. In addition, his filing of the petitions for paternity and custody were indicative of his desire to establish a relationship and to voice his opposition toward anything other than a relationship with his child. Considering J.E.M.’s actions and statements, in light of the fact that the child was in útero and the mother’s evasion while pregnant, it is my opinion that J.E.M. made sufficient and prompt good faith efforts to establish a personal relationship with his child. Accordingly, because he proved a significant personal relationship with his child, under the facts before us, I would reverse the circuit court’s finding that his consent was not required under section 9-9-206.
Financial Relationship
The final method by which J.E.M.’s consent could be required under the statute was if he proved a significant financial relationship with the child prior to the filing of the adoption petition. Here, the evidence presented to the circuit court demonstrates that, while he did not do in great amounts, J.E.M. did establish a savings account for the benefit of Baby Boy B. J.E.M. admitted that he did not provide funds to the mother during her pregnancy; while he did provide her with a massage and a diaper bag, he did not attempt to provide her with funds to aid with living or medical expenses during her pregnancy. That being said, he also did not know her exact location for an extended period of
For the foregoing reasons, I concur.
CORBIN, J., joins.
. I would note that the statute only requires that a putative father prove one of the three. It just so happens that in the instant case, J.E.M. proved each.
. Indeed, this court does strictly construe adoption statutes; however, this court, strictly construes the statutes in favor of the natural parents. In In re Glover, this court explained: The court gives careful protection to a natural parent’s rights. As announced in Woodson v. Lee,
... the power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that ‘the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of thе courts, as the law contemplates it should be, is in favor of maintaining the natural relation.... Every intendment should have been in favor of the claim of the mother under the evidence, and if the statute was open to construction and interpretation it should be construed in support of the right of the natural parent. ’
. To the extent that the court of appeals' opinion in X.T. v. M. M.,