# Escobedo v. Nickita

> Supreme Court of Arkansas · March 9, 2006 · 365 Ark. 548

URL: https://www.frixlaw.com/law-library/cases/9630338

## Case

- **Full name:** Rusty Wayne ESCOBEDO v. Mark NICKITA and Jennifer Nickita
- **Court:** Supreme Court of Arkansas
- **Decided:** March 9, 2006
- **Citations:** 365 Ark. 548; 231 S.W.3d 601
- **Precedential status:** Published
- **Opinion:** Concurrence by Imber
- **Judges:** Jim Gunter
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9630338

## How later opinions describe it (automated extraction)

- holding that appellant’s interest was adequately protected by his receipt of actual notice of the pending adoption and rejected his argument that his due-process rights have been violated
- holding that the biological father was not entitled to notice of adoption proceeding where he failed to properly legitimate his child

## Opinion text

Annabelle Clinton Imber, Justice, concurring. While I that the circuit court’s decision in this case must be affirmed, I cannot agree with the reasoning presented by the majority opinion. I must therefore respectfully concur in the opinion.
In its analysis, the majority declines to address the issue of whether Mr. Escobedo was entitled to receive notice of the adoption hearing by simply noting that he received actual notice of the hearing. The majority cites our decisions in Mayberry v. Flowers, 347 Ark. 476 , 65 S.W.3d 418 (2002), and Pender v. McKee, 266 Ark. 18 , 582 S.W.2d 929 (1979), but those cases are inapposite here. In each of those cases, the parent in issue was unquestionably statutorily entitled to notice because his or her consent was required for the adoption. The father in Mayberry was married to the mother of the child at the time of the child’s birth, and thus his consent was required under Ark. Code Ann. § 9-9-206 (a)(2) (Repl. 2002), and the parent in Pender was the biological mother of the child, whose consent is required under Ark. Code Ann. § 9-9-206 (a)(1).
Under Arkansas law, the question of whether a party is entitled to receive notice of an adoption hearing must necessarily begin with the question of whether such party is required to consent to the adoption. The statute governing the hearing on a petition for adoption requires:
At least twenty (20) days before the date of the hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the petitioner to (1) any agency or person whose consent to the adoption is required by this subchapter but who has not consented; and (2) a person whose consent is dispensed with upon any ground mentioned in § 9-9-207(a)(1), (2), (6), (8), and (9).
Ark. Code Ann. § 9-9-212 (a) (Repl. 2002). Additionally, Ark. Code Ann. § 9-9-224 (b) states, “When information concerning the child is contained in the putative father registry at the time of the filing of the petition for adoption, notice of the adoption proceedings shall be served on the registrant unless waived by the registrant in writing signed before a notary public.” Id.; see also Ark. Code Ann. § 20-18-701 etseq. (Repl. 2005). Thus, the only people entitled to notice of an adoption hearing are those persons whose consent to the adoption is required, putative fathers who have registered with the registry, or those persons whose consent is dispensed with upon any ground mentioned in section 9-9-207(a)(1), (2), (6), (8), and (9). 1
Mr. Escobedo clearly does not fall into one of the above-listed categories in section 9-9-207(a). The only way he would be entitled to notice of the hearing would be if his consent were required pursuant to Ark. Code Ann. § 9-9-206 or if he had filed with the putative father registry under Ark. Code Ann. § 9-9-224 . It is undisputed that Mr. Escobedo did not, prior to the hearing, file with the putative father registry or otherwise legitimate the child according to Arkansas law. Moreover, even the majority agrees “that the statutes did not require that notice be provided to appellant at the time the petition in this case was filed.”
In fact, the appellees’ proposition — that because Mr. Escobedo was not entitled to notice of the hearing his consent was not required — holds true. While in In re SCD, 358 Ark. 51 , 186 S.W.3d 225 (2004), we declined to adopt a rule that the filing of the petition for adoption constitutes the cutoff date for purposes of determining the father’s right to consent to adoption, such a
brightline rule must necessarily exist in relation to the hearing itself. 2 According to Arkansas law, all parties whose consent to adoption is required are entitled to notice. Ark. Code Ann. § 9-9-212 (a)(l). In addition, some parties whose consent is not required are nonetheless entitled to notice. Ark. Code Ann. § 9-9-212 (a)(2). Finally, notice of the adoption proceeding must be served on any person registered with the putative father registry. Ark. Code Ann. § 9-9-224 (b). The statutory scheme does not, however, contemplate a separate category of persons who are not entitled to notice but whose consent is nonetheless required.
The rationale for the statutory provisions governing adoption could not be more obvious: the purpose of the hearing on the adoption petition is to determine whether the petition should be granted. Such a determination necessarily involves consideration of whether all the necessary parties have consented to the adoption. Thus, the issue of whether a party qualifies as a person required to consent to the adoption pursuant to Ark. Code Ann. § 9-9-206 must be determined prior to the hearing. In other words, the class of persons required to consent to the adoption is closed by the time of the hearing on the adoption petition. If the party is not a member of that class before the hearing, no actions on his or her part after the hearing can then make him or her part of the class. It is for this reason that the decision in In re SCD, supra, is distinguishable from the case at hand.
In In re SCD, the putative father had filed with the putative father registry and was consequently entitled to notice of the adoption proceedings. Moreover, the actions of the father in submitting to a paternity test and seeking custody of the child were all completed before the hearing on the adoption petition. The issue in that case was whether such actions, completed after the filing of the adoption petition but before the hearing on the petition, could be considered in determining whether the father had “otherwise legitimated” the child. In re SCD, 358 Ark. 51 , 186 S.W.3d 225 (2004). We held that the actions were properly considered. Id. In this case, Mr. Escobedo had not filed with the putative father registry and had not “otherwise legitimated” the child before the hearing on the petition, and thus was not entitled to notice of the petition. Moreover, the above analysis demonstrates that, in any case where the putative father’s consent is required for adoption at the time of the hearing, such father is also entitled to notice of the hearing, but in any case where the putative father’s consent is not required at the time of the hearing, no subsequent actions on the part of the putative father will resurrect a consent requirement.
The harshness of the result that there is nothing a putative father can do to “otherwise legitimate” a child after the hearing on the adoption petition where the putative father has not filed with the registry before the filing of the adoption petition must be balanced with the state’s interest in finality and the need for prompt action in adoption proceedings. The New York Court of Appeals stated:
To conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstme whose timetable is relevant. Promptness is measured in terms of the baby’s life not by the onset of the father’s awareness. The demand for prompt action by the father at the child’s birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State’s legitimate interest in the child’s need for early permanence and stability.
Robert O. v. Russell K., 80 N.Y.2d 254, 266 , 604 N.E.2d 99 (1992). Similarly, the Supreme Court of Vermont has summarized the rationale expressed by most courts and commentators:
Relying on Lehr’s observation that strict compliance with the requirements of the New York putative father registry promoted the state’s interest in ensuring ‘promptness and finality’ to the process of finding the child a permanent and stable placement, 463 U.S. at 266, 103 S.Ct. 2985 , most courts and commentators have concluded that the ‘opportunity interest’ must be grasped promptly both before and after the child’s birth, or it will be lost.
In re C.L., 878 A.2d 207, 211 (Vt. 2005) (citing Adoption of Kelsey S., 1 Cal.4th 816 , 4 Cal.Rptr.2d 615 , 823 P.2d 1216 (1992); In re Raquel Marie X., 76 N.Y.2d 387 , 559 N.Y.S.2d 855 , 559 N.E.2d 418 (1990); In re Baby Boy K, 1996 SD 33 , 546 N.W.2d 86 (1996); E. Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v. Robertson, 45 Ohio St. L.J. 313 (1984). Numerous courts have also concluded that “it is the father’s burden to discover the existence of his child, even if he had no notice of the pregnancy or birth, or risk losing the opportunity to transform a biological link into a full and enduring parental relationship.” In re C.L., 878 A.2d 207 , 211 (citing In re S.J.B., 294 Ark. 598 , 745 S.W.2d 606 (1988); In re Zacharia D., 6 Cal.4th 435 , 24 Cal.Rptr.2d 751 , 862 P.2d 751 (1993); In re Tinya W., 328 Ill.App.3d 405 , 262 Ill.Dec.606, 765 N.E.2d 1214 (2002); In re Baby Doe, 734 N.E.2d 281 (Ind. Ct. App. 2000)).
The most significant point, as expressed by the Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1983), is that all that is required for the putative father to be entitled to notice is for him to file with the putative father registry. Lehr v. Robertson, 463 U.S. 248, 264 (1983) (“the right to receive notice [is] completely within [the putative father’s] control”); see also Ark. Code Ann. § 20-18-701 et seq. Such registries have repeatedly been upheld as sufficient protection for the constitutional rights of putative fathers. See, e.g., Lehr v. Robertson, supra; State ex rel S.H., 119 P.3d 309 (Utah 2005); In re C.L., 878 A.2d 207 (Vt. 2005); Matter of Baby Boy K, 546 N.W.2d 86 (S.D. 1996). Utah first upheld its registry as constitutional in Wells v. Children’s Aid Society of Utah, 681 P.2d 199 (1984) and has reaffirmed this holding in numerous cases. See, e.g., State ex rel S.H., supra; Sanchez v. L.D.S. Social Services, 680 P.2d 753 (1984).
Much like the Arkansas statute concerning .the putative father registry, the Utah statute does not provide notice to putative fathers who fail to register with the registry. U.C.A., 1953, § 78-30-4(3). Indeed, the Utah statute specifically provides:
Any father of such child who fails to file and register his notice of claim to paternity and his agreement to support the child shall be barred from thereafter bringing or maintaining any action to establish his paternity of the child. Such failure shall further constitute an abandonment of said child and a waiver and surrender of any right to notice of or to a hearing in any judicial proceeding for the adoption of said child, and the consent of such father to the adoption of such child shall not be required.
U.C.A., 1953, § 78-30-4(3). Despite the harsh consequences of failure to register, the Utah courts have repeatedly held the statute to be sufficient protection for a putative father’s constitutional rights. In Sanchez v. L.D.S. Social Services, 680 P.2d 753 (Utah 1984), for example, the Utah supreme court held that the statute barred a putative father from obtaining custody of a child born out of wedlock where the father failed to file with the registry until the day after the child was relinquished to social services. Despite the fact that Sanchez, the putative father, filed with the registry only four days after the child was born, the court nonetheless held, “It is of no constitutional importance that Sanchez came close to complying with the statute. Because of the nature of subject matter dealt with by the statute, a firm cutoff date is reasonable, if not essential.” Id. at 755 .
Likewise, the Oklahoma Supreme Court has upheld its registry and notice statutes, which are substantially similar to our statutes. The Oklahoma statute provides that certain persons are entitled to notice of a hearing to terminate parental rights including:
1. any person adjudicated by a court in this state to be the father of the child;
2. any person who is recorded on the child’s birth certificate as the child’s father;
3. any person who is openly living with the child and the child’s mother at the time the proceeding is initiated or at the time the child was placed in the care of an authorized agency, and who is holding himself out to be the child’s father;
4. any person who has been identified as the child’s father by the mother in a sworn statement;
5. any person who was married to the child’s mother within ten (10) months prior or subsequent to the birth of the child; and
6. any person who had filed with the paternity registry an instrument acknowledging paternity of the child, pursuant to Section 6 of this Act.
Title 10 O.S.1991 § 29.1(B). The Oklahoma appellate court, in Matter of C.J.S., 903 P.2d 304 (Okla. 1995), held that a putative father’s constitutional rights were not violated when he did not receive notice of a hearing to terminate his parental rights where he did not meet any of the statutory terms, including filing with the registry. As in this case, the trial court had nonetheless provided notice, but the Oklahoma court stated:
We hold that notice to Tariah [the putative father] was not required, either under our statutes or by the Due Process Clause of the Federal Constitution. In an abundance of caution, the trial court authorized publication notice in order to insure the validity of the adoption of these children. We need not address the sufficiency of the unnecessary publication notice.
Id. at 309 . So, too, in the instant case, Mr. Escobedo was not entitled to notice under our statutes or the Due Process Clause of the Federal Constitution, and consequently, any notice he received was unnecessary and need not be addressed.
Moreover, the fact that Mr. Escobedo was unaware of the child’s existence in this case is immaterial. We have held, along with numerous other courts, that the putative father’s lack of knowledge is not sufficient grounds upon which to exempt him from the statutory requirements. In re S.J.B., 294 Ark. 598 , 745 S.W.2d 606 (1988) (reversed on other grounds) (“the biological father was not interested enough in the outcome of his sexual encounter ... to even inquire concerning the possibility of her pregnancy”); see also In re Baby Boy K, 546 N.W.2d 86 (S.D. 1996) (“when a putative father is ignorant of his parenthood due to his own fleeting relationship with the mother and her unwillingness to later notify him of her pregnancy, the child should not be made to suffer”); In re Paternity of Baby Doe, 734 N.E.2d 281 (Ind. Ct. App. 2000) (“courts from sister states considering cases similar to this one have placed the responsibility for promptly asserting parental rights on the putative father, even when the mother of the child has attempted to prevent the father’s knowledge of or contact with the child”); Robert O. v. Russell K., 604 N.E.2d 99 (N.Y. 1992) (“to conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby’s life not by the onset of the father’s awareness”). In the instant case, the Arkansas putative father registry sufficiently protected Mr. Escobedo’s due process rights in connection with the adoption proceeding. Because he chose not to avail himself of those procedures and did not “otherwise legitimate” the child before the date of the adoption hearing, I would affirm the circuit court’s decision.
Brown, J., joins. These subsections provide that consent to adoption is not required of:
(1) A parent who has deserted a child without affording means of identification or who has abandoned a child;
(2) A parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;
(6) A parent judicially declared incompetent or mentally defective if the court dispenses with the parent’s consent;
(8) Any legal guardian or lawful custodian of the individual to be adopted, other than a parent, who has failed to respond in writing to a request or consent for a period of sixty (60) days or who, after examination of his written reasons for withholding consent is found by the court to be withholding his consent unreasonably; or
(9) The spouse of the individual to be adopted, if the failure of the spouse to consent to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.
Ark. Code Ann. § 9-9-207 (a)(1), (2), (6), (8), (9) (Repl. 2002).
The legislature has subsequently made it clear that the relevant date is the date of the filing of the petition for adoption. Act 437 of 2005, codified at Ark. Code Ann. § 9-9-207 (10), (11),provides that the putative father’s consent to adoption is not required where the putative father has failed to establish a significant custodial, personal, or financial relationship with the juvenile prior to the time the petition for adoption is filed. Ark. Code Ann. § 9-9-207 (10), (11) (Supp.2005). Additionally, Ark. Code Ann. § 20-18-702 (c) now provides that the putative father registry “may accept the information prior to the birth of the child or at any time prior to the filing of the petition for adoption.” Ark. Code Ann. § 20-18-702 (c) (Repl. 2005).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9630338. Public record. Not legal advice.