# Escobedo v. Nickita > Supreme Court of Arkansas · March 9, 2006 · 365 Ark. 548 URL: https://www.frixlaw.com/law-library/cases/9630339 ## 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:** Dissent by Hannah - **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/9630339 ## 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 Jim Hannah, Chief Justice, dissenting. I respectfully dissent. The characterizes the issue in this case as whether Rusty Wayne Escobedo’s “opportunity interest” in forming a relationship with his infant daughter was “adequately protected.” This court concludes that Escobedo’s opportunity interest was adequately protected by his receipt of notice four business days before an adoption hearing regarding a child he did not know existed. I believe that Escobedo was denied the opportunity to legitimate his daughter in contravention of his right as a putative father under the United States Constitution. Also, common law principles concerning the natural rights of parents were ignored. I also believe that a hearing on whether Escabdeo had to consent to adoption was improperly turned into a hearing on his fitness as a parent. The facts are that in March 2004, Ford and Escobedo had unprotected sexual intercourse. A daughter was conceived and born December 3, 2004. According to Escobedo’s testimony, he and Ford had been seeing each other for three or four months when they had sexual intercourse, and they had known each other since the seventh grade. 1 He also testified that Ford knew at all times that she could reach him through his parents but had not attempted to do so. Escobedo only learned that Ford had been pregnant and had given birth to a baby on December 14, 2004, when he was served with a summons and petition for an adoption hearing on December 20, 2004. It was only at the December 20, 2004, hearing that the results from paternity testing were presented and Escobedo knew for certain that he was the father. 2 At this time, he was also served with a notice of deposition and other pleadings. Pursuant to the notice of deposition, on December 16, 2004, Escobedo appeared at the law offices of counsel representing the adoptive parents for his deposition even though counsel for the Nickitas failed to comply with notice requirements of Ark. R. Civ. P. 27. He submitted to the deposition, and submitted to paternity testing. Escobedo has never denied his paternity. He retained counsel and timely responded to the petition for adoption and filed a petition to establish paternity. He filed with the putative father registry within fourteen days of learning that Ford had delivered a child he had fathered. According to his testimony, he stood ready to take custody of his daughter, and his mother had agreed to quit work and care for his daughter. Previously, on November 19, 2004, Mark and Jennifer Nickita filed a petition for adoption seeking to adopt Ford and Escobedo’s daughter, affirming under verification that the father was unknown. At the hearing, on December 20, 2004, Ford acknowledged Escobedo as the father. It appears that at the very least there was less than adequate investigation undertaken before filing the petition. On the day that Ford and Escobedo’s daughter was born, Ford signed a consent to adoption form and a form agreeing to the delivery of the child to the Nickitas. On that same date, an order was entered allowing the Nickitas to take custody of the child. They did so. This was eleven days before Escobedo knew of the child. It should be noted that Escobedo received only six days notice of the adoption hearing set for Monday, December 20, 2004, two of which were Saturday and Sunday. The trial court’s order granting adoption is unclear and states: The Court finds, based on the credible evidence before it, that the conception of Baby Nickita occurred as the result of an encounter, commonly referred to as a “one night stand,” involving unprotected sex. After that chance union, the Respondent made no effort to determine whether a pregnancy resulted from this brief encounter. The Court finds that he had the means and ability to have taken such action if he had wished to do so. The Court concludes, based on the credible evidence before it, that Mr. Escobedo failed to timely file with the Putative Father Registry. He further failed to timely take meaningful action to otherwise legitimate Baby Nickita. While there may be no explicit time period for such action, it should come, at a minimum, before the date set for final hearing on the adoption. From the order, it appears that the circuit court concluded that Escobedo failed to establish a constitutionally protected relationship with his daughter by not determining Ford was pregnant and failing to file with the putative father registry before his child’s birth or before the hearing. Escobedo is also faulted for his failure to “otherwise legitimate” the child, whatever that means. The United States Supreme Court has made it clear that under the federal constitution, 3 “[t]he fact of biological parentage generally offers a person only ‘an opportunity ... to develop a relationship with his offspring.’ ” Hodgson v. Minnesota, 497 U.S. 417, 445 (1990) (quoting Lehr v. Robertson, 462 U.S. 248 , 262 (1983)). The State has an obligation to adequately protect an unwed father’s “inchoate interest in assuming a responsible role in the future of his child.” Lehr, 462 U.S. at 248. “Parental rights based on the biological relationship are inchoate; it is the assumption of the parental responsibilities which is of constitutional significance.” In re Adoption of John Doe, 543 So.2d 741, 748 (Fla. 1989). The unwed father is under an obligation to “grasp the opportunity.” Id. An unwed father must “quickly grasp his opportunity interest.” In re Adoption of J.D.C., 751 N.E.2d 747, 751 (Ind. Ct. App. 2001). The reason this is required is obvious. A child’s need for permanence and stability cannot be postponed. The facts of the present case depart widely from the facts in the cases handed down by the United States Supreme Court concerning preservation of an opportunity interest. They did not concern an unwed father who learned of the birth of the child four business days before the hearing on adoption. Pursuant to Lehr, supra, due-process rights do not attach until the unwed father acts. Aside from the question of whether Escobedo’s opportunity interest in developing a relationship with his child was adequately protected, this court is also faced with the issue of whether Escobedo had any opportunity to develop a relationship with his daughter. This court in In re S.C.D., 358 Ark. 51 , 186 S.W.3d 225 (2004), stated that there is no temporal requirement that an unwed father commence or complete legitimization of his child by some certain date or event such as filing of the adoption petition. The decision of the majority in the present case cannot be reconciled with S.C.D, supra, unless the majority is holding that by failing to register with the putative father registry before the hearing on the adoption, and by failing to respond to the petition for adoption before the hearing, and before a response was due, Escobedo failed to avail himself of an opportunity to develop a relationship with his daughter. Neither the rules of civil procedure nor due process condone serving a person with a summons and requiring defense on the case referenced in the summons within four business days of service, without the presence of retained counsel, and before a response to the summons is even due. Escobedo filed with the putative father registry soon after the hearing and also filed a petition to establish paternity. In S.C.D., T.F., the father, filed both before the hearing on adoption. However, T.F. was aware of the pregnancy and that he was the father. In reality, while the facts of S. C.D. and the present case are strikingly similar, the decision reached by this court in S. C.D. and the present case could not be more dissimilar. In S.C.D., T.F., prevailed in asserting a right to object to adoption, and in the present case, the father lost in his attempt to assert a right to object to adoption. T.F. in S.C.D. never denied paternity. Escobedo never denied paternity. T.F. filed a response to the petition adoption. Escobedo filed a response within two weeks and well within the statutorily allowed time. T.F. “embraced” paternity by filing a petition himself. S.C.D., 358 Ark. at 56 . Escobedo filed a petition as well. T.F. filed a petition as soon as he learned the baby had been born and there was a petition for adoption. Escobedo did likewise. At the adoption hearing, T.F. stated at the hearing that he wanted the child, that he wanted to be involved, and that his mother would assist in caring for the child. Escobedo testified that he would take care of her that, “I would do anything in the world to provide for her.” His mother offered to resign her job to care for the child. Yet in the present case the majority affirms a finding by the circuit court that Escobedo failed to establish a relationship with this child sufficient to give him a right to have a say in the adoption of his daughter while under basically the same facts in S.C.D. the court held that, “Clearly, TF has ‘legitimated’ this child, not only by signing the Putative Father Registry, but also by petitioning for a determination of paternity, and by taking significant steps to prepare for having the baby with him if he is awarded custody.” S. C.D., 358 Ark. at 58-59 . Escobedo did both these things as well. What more could Escobedo do under the circumstances of this case? Clearly, Escobedo legitimized his daughter, too, at least to the extent required in S.C.D, if not more given the few days he had before the hearing. However, there are admittedly some distinctions between the facts of the present case and S.C.D. that should be noted. In S.C.D., T.F. was pursuing college and preparing for life in a way the father in the present case is not. Escobedo is not pursing college, but instead works at low wage jobs in manufacturing. I also note that Escobedo’s testimony in the hearing covers 23 pages. In the course of those 23 pages, approximately five pages include questions relevant to Escobedo’s relationship to his child. The vast majority of the questions were directed to Escobedo’s fitness as a parent, a matter that was not at issue in this hearing. However, facts were elicited to show that the Nickitas would make better parents than Escobedo. This court once said that: [D]ue regard must be given to natural desires. We said in Verser v. Ford, 37 Ark. 27 , “It is one of the cardinal principles of nature and of law that, as against strangers, the father — however humble and poor — if able to support the child in his own style oflife, and [if the father be] of good moral character, cannot, without the most shocking injustice, be deprived of the privilege, . . . however brilliant [the advantages offered] may be.” Hazelip v. Taylor, 209 Ark. 510, 512-13 , 190 S.W.2d 982, 983 (1945). I have a further concern. At the December 20, 2004, hearing, Escobedo informed the court that he had counsel but that his attorney could not be there that day. The hearing went forward because, according to the court, Escobedo had notice of it. The court then informed Escobedo that the petitioners, the Nickitas, had to prove by clear and convincing evidence that they were entitled to adoption, or in other words, that Esdcabedo’s consent was not required. The circuit court should have continued the matter until Escobedo’s counsel could have been present. At the hearing, counsel for the Nickitas raised the issue of Escobedo’s fitness as a parent. This is an issue that is relevant to termination of his parental rights. Escobedo found himself in an adversarial proceeding where his morals and integrity were being challenged in an attempt to convince the court he should not be given custody when what was at issue was whether his opportunity to develop a relationship with his daughter had been adequately protected and whether he had failed to avail himself of an opportunity to develop a relationship with his daughter. If the circuit court considered the evidence offered by the Nickitas to show Escobedo was not a fit parent, then arguably termination of parental rights were at issue, and if so, Escobedo was entitled to counsel. Briscoe v. State, 323 Ark. 4 , 912 S.W.2d 425 (1996). He was without counsel even though he had retained counsel. The circuit court was aware Escobedo had retained counsel and should have continued the hearing until Escobedo’s counsel could be present. Finally, in regard to the hearing, I also note that contrary to statute and the constitution, there was no showing by clear and convincing evidence that Escobedo’s consent was not necessary. In In re: Adoption of Lybrand, 329 Ark. 163, 169 , 946 S.W.2d 946, 949-50 (1997), this court stated: Adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416 , 844 S.W.2d 343 (1993); Harper v. Caskin, 265 Ark. 558, 561 , 580 S.W.2d 176, 179 (1979) (stating adoption petitioner’s burden is “heavy”). I do not in any way discount the great concern that the circuit court and this court have for the best interests of the child. “The State’s interest in providing for the well-being of illegitimate children is an important one.” Caban v. Mohammed, 441 U.S. 380, 391 (1979). However, constitutional law should be followed. In this case the constitutional protections afforded Escobedo have been ignored. I also must note that at the hearing, counsel for the Nickitas relied heavily upon Arkansas Code Annotated Section 9-9-206 (Repl. 2002). This code section is constitutionally suspect in failing to adequately protect putative fathers as required under Lehr, supra. Under Lehr, a putative father’s attempt to establish a substantial relationship with his child determines the constitutional protection afforded the relationship. If the facts of this case were similar to the facts in Lehr, we would be examining whether Escobedo failed to take advantage of the opportunity to develop a relationship with his child. However, in this case, the question is whether there is anything he could have done but did not do to establish such a relationship in the few days before the hearing. Lehr does not stand for the proposition that where a putative father is given four business days notice, and has done all that can be accomplished in those four days, he has failed to establish a relationship giving him a right to object to adoption. The statute does not adequately protect Escobedo’s inchoate right to an opportunity to develop a relationship with his daughter as required under Lehr. I do not believe that filing with the putative father registry upon having unprotected sexual intercourse is required as a condition precedent 4 under Lehr or the other opinions of this court. Escobedo did what was reasonably possible in the time he had. Lex non intendit aliquid impossible is a familiar maxim of the law. Heong v. United States, 112 U.S. 536 (1884). The law does not intend that impossible requirements be met. This opinion is inconsistent with the principles set out in Lehr, inconsistent with this court’s holding in S.C.D. and the decision of the circuit court should be reversed as regrettable as that may be. Such a decision would serve the best interest of the children who will be adopted in the future. The circuit court concludes that the child was born of a “one-night-stand.” The evidence does not support this conclusion, and how the child was conceived was not relevant. On December 2, 2004, Billy Ray Gibbons filed with the putative father registry listing Misty Ford as the mother. Under the common law in Arkansas, the mother enjoyed the greatest rights over an illegitimate child, her rights being “superior to that of anyone else.” Waldron v. Childers, 104 Ark. 206, 210 , 148 S.W 1030, 1031 (1906). However, “as between strangers,” the father of an illegitimate child was preferred under the common law in Arkansas. The father of an illegitimate child has “rights superior to that of a stranger in custody disputes over the child” Roque v. Frederick, 272 Ark. 392, 396 , 614 S.W.2d 667, 669 (1981) (citing Lipsey v. Battle, 80 Ark. 287 , 97 S.W. 49 (1906). Consistently in Lee v. Grubbs, 269 Ark. 205 , 599 S.W.2d 715 (1980), the court again indicated that the father of the illegitimate child enjoys preference over strangers unless he is unfit. The purpose of the putative father registry is to entitle putative fathers to notice of legal proceedings pertaining to the child for whom the putative father has registered. Ark. Code Ann. § 20-18-702 (a)(2) (Repl. 2005). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9630339. Public record. Not legal advice.