In the Matter of the Adoption of Martindale

IN the MATTER of the ADOPTION of Baby Boy
MARTINDALE  

96-1258                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 24, 1997


1.   Statutes -- construction of -- supreme court has
     responsibility to determine meaning of statutes or rules. --
     In matters of first impression requiring the interpretation or
     construction of an act of the General Assembly or a judicially
     created rule, it is the supreme court's responsibility to
     determine the meaning of the statute or rule in question.  

2.   Civil procedure -- when rules applicable -- exception limited
     to special proceedings. -- Rule 1 of the Arkansas Rules of
     Civil Procedure provides that the Rules of Civil Procedure
     "govern the procedure. . .in all suits or actions of a civil
     nature with the exceptions stated in Rule 81"; Rule 81(a)
     excludes the application of the Rules "in those instances
     where a statute which creates a right, remedy or proceeding
     specifically provides a different procedure in which event the
     procedure so specified shall apply"; the Rule 81(a) exception
     "is limited to special proceedings created exclusively by
     statute where a special procedure is appropriate and
     warranted."  

3.   Civil procedure -- action and special proceeding
     distinguished. -- An action is an ordinary proceeding in a
     court of justice by one party against another for the
     enforcement or protection of a private right or the redress or
     prevention of a private wrong; all proceedings that are not
     ordinary proceedings are "special proceedings" created
     exclusively by statute. 

4.   Adoption -- adoptions are special proceedings -- adoptions are
     governed entirely by statute. -- Adoptions are "special
     proceedings"; there is no mention of adoption, child custody,
     or visitation rights in the Arkansas Constitution;
     jurisdiction of adoption proceedings has been vested in the
     probate court by statute; adoption proceedings were unknown to
     the common law, so they are governed entirely by statute.

5.   Adoption -- adoption is special proceeding -- Arkansas Rules
     of Civil Procedure do not apply. -- Adoption was not known in
     common law; it was created entirely by statute, so it is a
     "special proceeding"; the Rules of Civil Procedure are not
     applicable to adoption proceedings because they are special
     proceedings.

6.   Adoption -- one-year statute of limitations for challenging
     adoption decrees statutory -- limit to be strictly applied. -- 
     The Arkansas Revised Uniform Adoption Act contains a one-year
     statute of limitations for challenging adoption decrees; the
     legislature's one-year rule must be applied strictly in order
     to ensure that adoption decrees obtained under the law possess
     that necessary and required finality so that an adoptive
     parent is not freed of the parental obligations he or she has
     willingly undertaken; the policy of stability in a family
     relationship outweighs the possible loss to the natural parent
     whose rights are cut off even in instances of fraud and
     ignorance.

7.   Adoption -- adoption is special proceeding with necessary
     special procedures enacted to protect significant public-
     policy concerns -- one-year statute of limitations cannot be
     annulled by A.R.Civ.P. 41 (a). -- The Arkansas Revised Uniform
     Adoption Act's one-year statute of limitations provides a
     special procedure enacted to protect significant public-policy
     concerns, such as the rights of adoptive parents and minor
     children to establish a stable and secure family relationship,
     which cannot be annulled by Ark. R. Civ. P. 41(a) and the
     savings statute that allows an action dismissed without
     prejudice to be refiled within one year of the dismissal. 

8.   Adoption -- probate court without authority to grant
     appellee's motion for dismissal without prejudice -- case
     reversed and dismissed. -- The probate court was without
     authority to grant appellee's motion for dismissal without
     prejudice and to find that appellee could refile her claim at
     a later date; the dismissal should have been with prejudice;
     because appellee did not have the right to refile the petition
     to set aside the adoption decree, the supreme court reversed
     and dismissed; to allow such a challenge after the appellants
     had custody of the baby for nearly two years would have
     ignored the legislative intent and nullified the plain meaning
     of Ark. Code Ann.  9-9-216(b) by allowing the petition to be
     filed after the statute of limitations had expired.  
     

     Appeal from Pulaski Probate Court; Collins Kilgore, Probate
Judge; reversed and dismissed.
     Wright, Lindsey & Jennings, by:  Edgar J. Tyler, for
appellants.
     Thurman, Lawrence and Heuer, by:  Sam Heuer, for appellee.

     W.H."Dub" Arnold, Chief Justice.
     This case raises the issue of whether the Arkansas Rules of
Civil Procedure Rule 41(a) voluntary nonsuit provision is
applicable to adoption proceedings.  Jurisdiction is proper
pursuant to Rule 1-2(a)(3) as an interpretation of the Arkansas
Revised Uniform Adoption Act, Ark. Code Ann.  9-9-201 et seq.
(1993 & Supp. 1995), and the Arkansas Rules of Civil Procedure.
     Appellee is the biological mother of Baby Boy Martindale who
was born on March 22, 1995.  Prior to her child's birth, Appellee
contacted an adoption agency, Adoption Services, Inc., to make
arrangements to place the child for adoption.  On March 23, 1995,
Appellee signed a relinquishment of parental rights and a consent
of adoption; both of these documents contained an acknowledgment
signed by Appellee that she understood she had ten (10) days to
withdraw her consent.  Appellee also signed an affidavit of
paternity at that time; in the affidavit, she swore that she did
not know the identity of the child's father because her pregnancy
was the result of a rape by an unknown assailant.  
     The ten-day withdrawal period passed without Appellee
withdrawing her consent.  After the ten-day period, the child was
placed in the custody of the Appellants, and an adoption decree was
entered.  
     On September 15, 1995, approximately six months after she had
given her consent to the adoption, Appellee filed a petition with
the probate court to set aside the adoption.  In her petition,
Appellee claimed the information in the sworn affidavit of
paternity was false because she knew the identity of the father and
that the circumstances she provided regarding her pregnancy were
fraudulent.  She also claimed that she had contacted the social
workers at Adoption Services, Inc., during the ten-day withdrawal
period to inform them that she was having second thoughts, but they
intimidated her and instructed that she should not pursue her right
to withdraw consent.
     The Appellant's responded to the petition, denying the
allegations of intimidation and claiming that the consent was
valid.  A hearing was scheduled to begin on July 17, 1996.  
     On June 12, 1996, the attorney of record for the Appellee
filed a motion with the probate court requesting to be relieved as
Appellee's attorney.  He claimed that the Appellee had not
responded to his communications, would not participate in the
preparations for the proceeding, and had not complied with the
arrangement for costs and fees.  Appellants filed a response to the
motion in which they did not object to the attorney's withdrawal;
however, in the response, Appellants stated they would object to
any motion for continuance.  
     The probate court held a hearing on the attorney's motion on
July 9, 1996.  Appellee did not attend the hearing although her
attorney gave a sworn statement that she had been given notice of
the hearing.  The probate court granted the attorney's motion to
withdraw.
     On July 18, 1996, the originally scheduled hearing on the
petition to set aside the adoption was held.  Appellee's former
counsel made a special appearance on behalf of Appellee, who had
failed to obtain new counsel.  Appellee offered a motion for a
continuance; Appellants objected.  The probate court denied the
motion ruling that it was Appellee's fault that she was not
prepared for trial.  Appellee then moved for a dismissal without
prejudice pursuant to Rule 41(a).  Appellants objected on the
grounds that such procedure was not permissible because the
adoption proceeding was a special proceeding and moved that the
petition be dismissed with prejudice.  The probate court granted
the Appellee's motion to dismiss without prejudice, thus giving the
Appellee a year from the date of the order to refile her petition.
     Appellants filed this appeal challenging the probate judge's
order dismissing the petition without prejudice.  Appellants claim
that the probate court erred in ruling that Rule 41(a) of the
Arkansas Rules of Civil Procedure is applicable to adoption
proceedings.  Appellee claims that the right of voluntary dismissal
is absolute and must apply to adoption proceedings.
     This is a case of first impression, which requires
interpretation of the Arkansas Revised Uniform Adoption Act, Ark.
Code Ann.  9-9-201 et seq. (1993 & Supp. 1995), and the Arkansas
Rules of Civil Procedure.  In matters of first impression requiring
the interpretation or construction of an act of the General
Assembly or a judicially created rule, it is this court's
responsibility to determine the meaning of the statute or rule in
question.  See, Arkansas DOH v. Westark Christian Action, 322 Ark.
440, 910 S.W.2d 199 (1995); Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995); Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520
(1993).
     Rule 1 of the Arkansas Rules of Civil Procedure provides that
the Rules of Civil Procedure "govern the procedure. . .in all suits
or actions of a civil nature with the exceptions stated in Rule
81."  (Emphasis supplied).  Rule 81(a) excludes the application of
the Rules "in those instances where a statute which creates a
right, remedy or proceeding specifically provides a different
procedure in which event the procedure so specified shall apply." 
In Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556 (Ark. 1995), we found that the Rule 81(a) exception "is limited
to special proceedings created exclusively by statute where a
special procedure is appropriate and warranted."  
      We have addressed the distinction between an "action" and a
"special proceeding."   In Coleman v. Coleman, 257 Ark. 404, 407,
520 S.W.2d 239 (1974), we defined an action as "an ordinary
proceeding in a court of justice by one party against another for
the enforcement or protection of a private right or the redress or
prevention of a private wrong."    All proceedings which are not 
ordinary proceedings are "special proceedings" created exclusively
by statute. 
     In Poe v. Case, 263 Ark. 488, 490, 565 S.W.2d 612, 613 (1978),
we determined that adoptions are "special proceedings" without
utilizing the label "special proceeding."  In Poe, we found that
"[t]here is no mention of adoption, child custody or visitation
rights in the Arkansas Constitution.  Jurisdiction of adoption
proceedings has been vested in the probate court by statute. 
Adoption proceedings were unknown to the common law, so they are
governed entirely by statute."
     Although we have not addressed the specific issue of whether
the Rules of Civil Procedure apply to adoption proceedings, we have
determined that the Rules do not apply to other special
proceedings.  In Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847
(1981), a will contestant appealed from a probate court order
dismissing her contest with prejudice on the contention that the
contest should have been dismissed without prejudice.  We upheld
the probate court order and determined that a dismissal without
prejudice pursuant to Rule 41(a) is not an appropriate procedure in
a will contest.  We noted that will contests are special
proceedings to which the rules of civil procedure do not apply.  We
stated:  
     "It [the will contest] does not constitute a civil action
     within ARCP, Rules 2 and 3.  A will contestant cannot
     take a nonsuit under Rule 41, because such a contest is
     not an independent proceeding in itself.  It would
     seriously disrupt the administration and distribution of
     estates if a will contest could be dismissed voluntarily
     or without prejudice, and refiled at some indefinite
     later date."   

Id. at 169-70.  See, Garret v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987)(elections are special proceedings to which the Arkansas
Rules of Civil Procedure do not apply).
     As we found in Poe, adoption was not known in common law and
it was created entirely by statute, so it is a "special
proceeding."  We now specifically follow the Screeton decision in
holding that the Rules of Civil Procedure are not applicable to
adoption proceedings because they are special proceedings.
     The Arkansas Revised Uniform Adoption Act contains a one year
statute of limitations for challenging adoption decrees.  Ark. Code
Ann.  9-9-216(b)(1) (1993 & Supp. 1995).  Specifically, the
statute provides:  
     "Subject to the disposition of an appeal, upon the
     expiration of one (1) year after the adoption decree is
     issued, the decree cannot be questioned by any person
     including the petitioner, in any manner upon any ground,
     including fraud, misrepresentation, failure to give any
     required notice, or lack of jurisdiction of the parties
     or of the subject matter ...."   
(Emphasis supplied.)  
     We have held that the legislature's one year rule must be
applied strictly in order to "ensure adoption decrees obtained
under the law possess that necessary and required finality so that
an adoptive parent is not freed of the parental obligations he or
she has willingly undertaken."  Martin v. Martin, 873 S.W.2d 819
(Ark. 1994).  In quoting commentary from the Uniform Revised
Adoption Act which discusses the importance of the one year limit,
the Martin opinion further states, "the policy of stability in a
family relationship. . . outweighs the possible loss to a person
[the natural parent] whose rights are cut off [even in instances
of] fraud and ignorance."  Id. at 822.
     Clearly, adoption is a special proceeding with appropriate and
necessary special procedures enacted to protect significant public
policy concerns such as the rights of adoptive parents and minor
children to establish a stable and secure family relationship. The
Arkansas Revised Uniform Adoption Act's one-year statute of
limitations provides a special procedure which cannot be annulled
by Rule 41(a) and the savings statute that allows an action
dismissed without prejudice to be refiled within one year of the
dismissal.  Ark. Code Ann.  16-56-126 (1987).  
     The probate court was without authority to grant Appellee's
motion for dismissal without prejudice and to find that Appellee
could refile her claim at a later date.   Allowing such a challenge
after the Appellants have had custody of Baby Boy Martindale for
nearly two years would effectively ignore the legislative intent
and nullify the plain meaning of Ark. Code Ann.  9-9-216(b) by
allowing the petition to be filed after the statute of limitations
has expired.  
     Accordingly, the order of the probate court granting dismissal
without prejudice was without authority; the dismissal should have
been with prejudice.  Because Appellee does not have the right to
refile the petition to set aside the adoption decree, we reverse
and dismiss.  
     Reversed and dismissed.  
     Imber, J., not participating.