Anita Cassidy v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ANITA CASSIDY

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-582

January 28, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TENTH DIVISION

[NO. PAD 02-1460]

HON. JOYCE W. WARREN,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The appellant in this adoption case is the mother of Lisa Cassidy. In a prior proceeding, Lisa Cassidy's parental rights to the two children involved in the present case were terminated on October 10, 2000. The order terminating parental rights was affirmed by this Court in Cassidy v. Arkansas Department of Human Services, 76 Ark. App. 190, 61 S.W.3d 880 (2001). Appellant attempted to intervene in the termination case, and did not file a timely appeal from the denial of her motion to intervene. Almost two years later, appellant filed a petition to adopt the two children. The Arkansas Department of Human Services (ADHS) filed a motion to dismiss the petition, alleging that the petition had not been properly served, and that allowing the petition to be heard would constitute a collateral attack on the termination order insomuch as appellant and Lisa Cassidy lived together in the same home from which the children were removed. On March 11, 2003, the trial court dismissed the adoption petition, finding that ADHS had not been properly served with the adoption petition, and that ADHS had not unreasonably withheld its consent to adoption. This appeal followed.

For reversal, appellant contends that the trial court erred in denying her motion to intervene in the termination proceeding and by not granting her a hearing on her petition for adoption; by relying on res judicata and collateral estoppel to deny appellant an adoption hearing; and by failing to give proper consideration to the best interests of the children and the preference for placement with an adult relative set out in Ark. Code Ann. § 9-9-102(a) (Repl. 2002).

We are unable to address appellant's contention that she was denied due process when her motion to intervene in the termination proceeding was denied because appellant never filed a timely notice of appeal from that decision. The failure to file a timely notice of appeal deprives the appellate court of jurisdiction. Monk v. Farmers Insurance Co., 290 Ark. 38, 716 S.W.2d 201 (1986).

With respect to the issues properly relating to the dismissal of the adoption petition in the present case, we note that the trial court based its dismissal of appellant's petition on two separate grounds: first, that appellant failed to properly serve ADHS with the adoption petition and, second, that ADHS had not unreasonably withheld its consent to adoption. However, appellant did not argue in her brief 1 that the trial court erred in finding inadequate service, or that this finding of inadequate service was not a valid basis for dismissing her petition for adoption. Where, as here, the trial court expressly bases its decision on two independent grounds,2 the appellate court will affirm without addressing either ground if the appellant challenges only one of the grounds on appeal. Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999).

In any event, we could not say, even were the issue properly before us, that the trial court erred in dismissing appellant's petition for adoption. Pursuant to Ark. Code Ann. § 9-9-206(a)(3) (Repl. 2002), a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by the guardian or person lawfully entitled to consent to adoption. Consent is not required, however, if the legal guardian or lawful custodian of the individual to be adopted (other than a parent) is found by the court to be withholding his or her consent unreasonably after examination of his or her written reasons for withholding consent. Ark. Code Ann. § 9-9-207(a)(8) (Repl. 2002). This section gives the trial court authority to decide the issue of whether ADHS, as legal guardian of the minor, has unreasonably withheld its consent to adopt. Patterson v. Robbins, 295 Ark. 511, 749 S.W.2d 330 (1988).

Here, we could not say that ADHS has unreasonably withheld its consent to adopt. It is undisputed that Lisa Cassidy, whose parental rights to the children were terminated, resides in appellant's home. Arkansas Code Annotated § 9-27-353(e)(1) (Repl. 2002) provides that:

It shall be the duty of every person granted custody, guardianship, or adoption of any juvenile in a proceeding pursuant to or arising out of a dependency-neglect action under the this [sic] subchapter to ensure that the juvenile is not returned to the care or supervision of any person from whom the child was removed or any person the court has specifically ordered not to have care, supervision, or custody of the juvenile.

Furthermore, failure to abide by the provisions of subdivision(e)(1) is punishable as a criminal offense. § 9-27-353(e)(3) (Repl. 2002). Given that appellant resides with Lisa Cassidy, whose parental rights were terminated, and that the order terminating parental rights specifically found that appellant was not a proper person "to have custody or contact with these children," we could not say that the written reasons given by ADHS for its refusal to consent to appellant's adoption of the children were unreasonable.

Affirmed.

Neal and Vaught, JJ., agree.

1 Appellant did attempt to raise this issue for the first time in her reply brief; however, we do not consider arguments raised for the first time in a reply brief because the appellee has no opportunity to rebut the argument. Helena/West Helena Schools v. Hislip, 78 Ark. App. 109, 79 S.W.3d 404 (2002).

2 Appellant asserts in her reply brief that she did not raise the issue of service in her initial brief because she assumed that the trial court had agreed with her argument on this issue because it was not discussed in the trial court's opinion denying her Motion to Reconsider. However, in the absence of any discussion or ruling on this argument, we cannot assume that the trial court addressed it. It was appellant's duty to obtain a ruling on this point from the trial judge in order to preserve the issue for appeal, and her failure to do so was fatal to her appeal in this regard. Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997).