Ark. Code Ann. § 9-9-214 (2020)

Research References

Ark. L. Rev.

Note, Strict Construction, Jurisdictional Requirements and the Arkansas Adoption Code: Martin v. Martin and a Missed Chance for Clarity, 49 Ark. L. Rev. 123.

Case Notes

Appellate Brief.

In an adoption proceeding following termination of parental rights, the Court of Appeals granted appellee foster parent's motion to strike the appellate brief of the Department of Human Services where DHS had not appealed or cross-appealed but argued in favor of the appellant relatives in its brief. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Best Interest of Child.

Facts did not necessarily show adoption to be in the child's best interest. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985).

While keeping siblings together is a commendable goal and an important consideration as a general rule, it is but one factor that must be taken into account when determining the best interest of the child. Ark. Dep't of Human Servs. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992).

Putative father's failure to formally establish paternity was not a major factor to be considered regarding the best interest of the child. In re B.L.S, 50 Ark. App. 155, 901 S.W.2d 38 (1995).

That attempted adoptive mother was on Social Security disability and drawing welfare benefits will not provide a basis for a change in custody. In re B.L.S, 50 Ark. App. 155, 901 S.W.2d 38 (1995).

Trial court did not err under subsection (d) of this section in dismissing appellants' petition for adoption of a child for whom they had been foster parents because their adult son lived in their home and an uncle lived in substandard housing on the property without the knowledge of the Arkansas Department of Human Services. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 347 (2012).

If a trial court finds that an adoption is not in the best interest of a child, it is of no significance whether consent to adoption is required. If a trial court determines that consent to an adoption is not required, there can be no adoption if the trial court also finds that adoption is not in the best interest of the child, and thus the trial court in this case did not err as a matter of law in not addressing both parts of the two-part adoption analysis. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Trial court's finding that adoption was not in the child's best interest was not clearly erroneous; the mother's failure to provide care and support for the child was due in part to her financial problems, which she was curing, when the mother visited the child, he was happy, and the mother had made significant strides to improve her lifestyle and relationships. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Effective Date of Order.

Adoption decree is effective as of the date of the interlocutory order unless set aside for good reason at final hearing. A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950) (decision under prior law).

Adoptive parent did not timely move to vacate temporary order of adoption. Toai Cong Pham v. Hanh My Truong, 291 Ark. 442, 725 S.W.2d 569 (1987).

Petition Denied.

Because the paternal grandmother only challenged the trial court's finding that the mother did not lose her right to consent to the adoption pursuant to § 9-9-207(a)(2), as the mother had significant contacts with the child and had paid support, but not the trial court's finding that granting the grandmother's petition for adoption was not in the child's best interest, the appellate court was left with an unchallenged basis for affirming the denial of the petition. Hill v. Powell, 2016 Ark. App. 123 (2016).

Petition Dismissed.

Circuit court properly dismissed a petition for adoption filed by a maternal grandmother and a step-grandfather because the petition did not include background checks by the Federal Bureau of Investigation, the children's birth certificates, and the consent of the Department of Human Services, as the legal guardian of the children. Mode v. Ark. Dep't of Human Servs., 2015 Ark. App. 69 (2015).

It was not clearly erroneous to dismiss the paternal relatives' adoption petition for lack of a sufficient consent by the Department of Human Services (DHS); the consent, which DHS executed the day before the adoption hearing, did not satisfy the required waiting period and DHS did not seek to waive the waiting period. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Petition Granted.

A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and the adoption is in the best interest of the child or individual to be adopted. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

In an adoption proceeding following termination of parental rights, the granting of the foster parents' adoption petition was affirmed, as (1) the circuit court's decision that the Department of Human Services (DHS) unreasonably withheld consent to the adoption by preferring that the child be adopted by relatives was not clearly erroneous, (2) DHS's withholding of consent was not based on maltreatment allegations, and even if it was, the trial court was entitled to judge the credibility and seriousness of those allegations, and (3) DHS did not review all evidence relevant to the child's best interest before deciding to withhold consent. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Presence of Adopted Person.

Where the final decree of adoption recited “that all proper persons are before the court,” it must be assumed the finding means that the children were present at the hearing. Brown v. Fleming, 266 Ark. 814, 586 S.W.2d 8 (Ct. App. 1979).

Where the record was silent as to whether the child sought to be adopted was present at hearing, the court would indulge in the presumption that the court below had jurisdiction and acted correctly. Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983).

Standard of Review.

Supreme Court reviews probate proceedings de novo and will not reverse a probate court's decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of witnesses. Personal observations of the court are entitled to even more weight in cases involving the welfare of a young child. In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

Standing in Loco Parentis.

Subsection (a) of this section is mandatory and jurisdictional and could not be complied with unless persons standing in loco parentis to child were given notice of guardianship and adoption proceedings. Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ct. App. 1980).

Subsequent Hearing.

After the natural father brought to the court's attention that the child at issue, who was seven years of age at the beginning of this process, was past the age of ten years at the time the trial was held, the probate judge properly scheduled a subsequent hearing at which he questioned the child and ascertained the child's consent to be adopted. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Circuit court did not abuse its broad discretion in holding a subsequent hearing so the adoptive parents could introduce the home study into evidence because the issue presented in the case was so grave and of such importance that it would constitute an injustice not to allow the record to be completed; the circuit court had broad discretion to reopen the case for further proof after both sides had rested, particularly to ascertain the truth of the matter to be determined on a material issue. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Cited: In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990); Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000).