In Re Adoption of H.L.M., Wade L. McNew
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DIVISION II
CA 07-11
May 23, 2007
IN RE ADOPTION OF H.L.M., WADE L.
MCNEW
APPELLANT
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT
[NO. PAD 2006-1276]
HONORABLE ALICE SPRINKLE GRAY,
JUDGE
REVERSED AND REMANDED
Appellant Wade L. McNew appeals from an order dismissing without prejudice his petition
as a step-parent to adopt his wife’s adoptive child. For reversal, he contends that the trial court erred
in ruling that, before the adoption could go forward, he was required to either obtain the consent of
the child’s biological father, or produce an order demonstrating that the biological father’s parental
rights had been terminated. We agree that the trial court’s ruling was in error and thus reverse and
remand.
By a petition and an amended petition, filed respectively on July 26 and August 28 of 2006,
appellant sought to adopt his wife’s child. The amended petition and attached exhibits disclose that
appellant married his wife Tammy in August of 2005. Prior to their marriage, Tammy, as a single
woman, had adopted the child in question. Both the interlocutory decree of adoption, dated August
24, 2005, and the final decree of adoption, entered on January 19, 2006, state that the child’s
biological mother and biological father had executed their consent to Tammy’s adoption of their
daughter.
A hearing was held on appellant’s amended petition on September 28, 2006. During this
hearing, the trial court inspected the previous interlocutory and final decrees of adoption, whereby
Tammy had adopted the child, and noted that, although the biological father had consented to the
adoption, neither decree specifically terminated the biological father’s parental rights. The court thus
required appellant to either obtain the biological father’s consent to the present adoption, or an order
from the court that granted Tammy’s adoption stating that the biological father’s rights had been
terminated in the previous proceeding.
On September 28, after the hearing, appellant filed a motion to transfer the amended petition
to the Seventeenth Division of the Pulaski County Circuit Court where the prior adoption had been
heard. The trial court denied the motion to transfer that same day.
On October 2, 2006, appellant’s counsel sent a proposed order of dismissal to the trial court
for its signature. When the trial court did not act on the proposed order, appellant’s counsel wrote to
the court again on October 16 to inquire about the order, stating “[i]f the order is not to your
satisfaction, please revise and sign for appeal purposes.” The trial court entered its own order
dismissing without prejudice appellant’s amended petition on October 31, 2006. In it, the court
reiterated its position that it was necessary for appellant to obtain the consent of the biological father
or an order reflecting the termination of his parental rights. The basis for the trial court’s ruling was
stated as follows:
The Court explained to Petitioner’s attorney [at the hearing]
that the wording of the biological father’s consent filed in the previous
adoption matter was identical to the wording of Tammy Lanee
NcNew’s consent filed in this proceeding. It did not appear that the
biological father authorized a termination of his parental rights when
he consented to a female adopting his daughter. ... To explain its
reasoning, the Court noted that Tammy Lanee McNew’s identical
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consent to adoption for Petitioner to adopt her child would not
terminate her parental rights in this matter. Accordingly, the
biological father’s consent to adoption would not operate to terminate
his parental rights in the previous adoption proceeding, either.
However, if the Pulaski County Circuit Court, Seventeenth Division,
in the previous adoption case entered an order that the biological
father’s rights were terminated in that case then this Court would
accept that Court’s finding regarding the termination.
On November 6, 2006, appellant filed a motion to set aside the order of dismissal, taking issue with
certain statements made by the trial court in its dismissal order. The motion to set aside was not acted
upon in thirty days and was thus deemed denied on December 6, 2006. Ark. R. App. P. - Civil
4(b)(1). This timely appeal followed.
Appellant contends that the trial court erred by requiring him to acquire the consent of the
child’s biological father or an order showing the termination of his parental rights before he, as a stepparent, could adopt his wife’s child. There is decided merit in this argument. Arkansas Code
Annotated section 9-9-204(2) (Repl. 2002) authorizes an unmarried adult, such as appellant’s wife
Tammy, to adopt a child. Arkansas Code Annotated section 9-9-215 (Supp. 2005) addresses the
effect of a decree of adoption and provides in relevant part that:
(a) A final decree of adoption and an interlocutory decree of
adoption which has become final, whether issued by a court of this
state or of any other place, have the following effect as to matters
within the jurisdiction or before a court of this state:
(1) Except with respect to a spouse of the petitioner and relatives of
the spouse, to relieve the biological parents of the adopted individual
of all parental rights and responsibilities, and to terminate all legal
relationships between the adopted individual and his or her biological
relatives, including his or her biological parents, so that the adopted
individual thereafter is a stranger to his or her former relatives for all
purposes.
(Emphasis added.)
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T he supreme court has interpreted this statute as an expression of public policy favoring a
complete severance of the relationship between the adopted child and his or her biological family in
order to further the best interest of the child. Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914
(1997); Suster v. Arkansas Dep’t of Human Services, 314 Ark. 92, 858 S.W.2d 122 (1993). Based
on these authorities, appellant was not required to obtain the consent of the child’s biological father,
nor was it necessary for there to be an order specifically terminating his parental rights. By operation
of law, the former adoption decree forever severed and held for naught the biological father’s rights,
responsibilities, and legal relationship with the child. In terms of severing parental rights, the statute
does provide that the parental rights of “a spouse of a petitioner,” like Tammy, are not severed upon
a step-parent adoption; however, the statute carves out no exception for a biological parent where an
adoption is granted to an unmarried person.
The trial court clearly erred in ruling otherwise.
Accordingly, we reverse and remand for proceedings consistent with this opinion.
In closing, we note that at the end of the record, after the clerk’s certificate, there appears a
letter written by the trial court to appellant’s counsel on December 29, 2006, that purports to address
appellant’s motion to set aside the order of dismissal. We do not approve of this belated attempt to
address the motion, and we have not considered this letter in reaching our decision. The letter is not
file-marked and thus was not entered of record.
We will not consider matters that are outside the
record to determine issues on appeal. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d
3d 61 (2003).
Reversed and remanded.
M ARSHALL and V AUGHT, JJ., agree.
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