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                SUPREME COURT OF ARKANSAS
                                       No.   CV-15-491

THOMAS L. LAGIOS                                  Opinion Delivered   February 18, 2016
                               APPELLANT
                                                  APPEAL FROM THE COLUMBIA
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. PR-2012-106-5]

KENNETH MITCHELL GOLDMAN                          HONORABLE LARRY W.
AND DEANNE FIELDS GOLDMAN                         CHANDLER, JUDGE
                    APPELLEES
                                                  AFFIRMED; COURT OF APPEALS’
                                                  OPINION VACATED.


                          PAUL E. DANIELSON, Associate Justice


       Appellant Thomas L. Lagios appeals from a decree of adoption entered in the Circuit

Court of Columbia County, granting the adoption of his biological daughter to appellees

Kenneth Mitchell Goldman and Deanne Fields Goldman. On appeal, Lagios contends that

(1) the circuit court never acquired jurisdiction of the case due to the Goldmans’ failure to

comply with relevant adoption statutes, (2) the circuit court abused its discretion in allowing

the adoption without his consent, (3) the circuit court abused its discretion in sua sponte

reopening the record to allow the Goldmans to introduce further evidence, and (4) the

evidence does not support the circuit court’s finding that the adoption is in the best interest

of the child. We disagree with each of Lagios’s assertions and affirm the adoption decree.

       Our jurisdiction of this case is pursuant to Arkansas Supreme Court Rule 1-2(e)

(2015), as we granted a petition for review filed by Lagios after the Arkansas Court of Appeals
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affirmed. See Lagios v. Goldman, 2015 Ark. App. 329, 463 S.W.3d 726. When we grant a

petition for review, we consider the appeal as though it had been originally filed in this court.

See, e.g., Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585.

       The child at issue in this case, whom we refer to as M., was born in February 2012.

When M. was born, the biological mother was twenty-eight years old and unmarried. She

was cohabiting with Lonnie Dan Henson, who was sixty-five years old at the time. Henson

was present for M.’s birth and was listed as the father on her birth certificate. M.’s biological

mother died on March 12, 2012, when M. was approximately one month old.

       Henson initially attempted to care for M. himself, but, for various reasons, he was

unable to do so. Prior to M.’s birth, he had become acquainted with appellee Deanne

Goldman, who owned an antique mall and flea market that Henson frequented. According

to her testimony, Henson had come to her store shortly before M.’s birth, introduced M.’s

mother as his girlfriend, and shared that they were expecting a baby. Upon the mother’s

death, Henson contacted Deanne, who became concerned for M. because, as she put it,

Henson weighed over three hundred pounds, he was on oxygen and a walker, he had been

in the hospital with chest pains, he was sixty-five years old, and he had a newborn baby.

Deanne tried to help Henson acquire necessary baby equipment, such as a crib. She offered

to care for M. toward the end of March because Henson was not feeling well. Henson left

M. in Deanne’s care starting March 30, 2012. While this arrangement was originally intended

to be temporary, Henson was unable to resume care of the child. On May 31, 2012, Henson

asked Deanne to adopt M.


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       On June 1, 2012, Deanne filed a guardianship petition in the Probate Division of the

Columbia County Circuit Court. It was granted the same day. According to Deanne’s

testimony, she initially petitioned for guardianship rather than adoption because Henson

wanted to pursue a medical-malpractice lawsuit on M.’s behalf. However, Henson later

indicated that he wanted Deanne to pursue the lawsuit and that he wanted to “remain [the]

beneficiary of her money.” Deanne declined to pursue the lawsuit.

       On June 20, 2012, appellant Thomas Lagios filed a petition to establish paternity and

custody in the Domestic Relations Division of the Union County Circuit Court. Lagios, a

sixty-year-old friend of Henson’s, asserted that both he and Henson believed that he might

actually be M.’s biological father. He also averred that, until recently, he had enjoyed regular

visitation with M. Lagios later testified that he met M.’s mother through Henson, who

arranged a “[b]lind date,” and that he had sexual intercourse with her approximately three

times around the time that M. was conceived.1 He also stated that he had seen M. “[a] bunch

of times” at Henson’s house. A DNA test performed on August 2, 2012, concluded that

Lagios’s probability of paternity was 99.992%.

       On September 6, 2012, Deanne and her husband jointly filed a petition for adoption

in the Probate Division of the Columbia County Circuit Court. Lagios filed a response



       1
         There was some evidence that M.’s mother had an intellectual disability. Her sister
testified that she “was always slow,” developed late, had learning disabilities, had health
problems, and suffered from post-traumatic-stress disorder after having been sexually abused
as a child. It is strongly insinuated that Henson intentionally made her available to Lagios for
sex and that both men took advantage of her.


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contesting the adoption. On January 14, 2013, the Union County Circuit Court, Domestic

Relations Division, entered an order declaring Lagios to be M.’s biological father and

transferring the custody portion of the Union County case to Columbia County to be joined

with the pending adoption case.

       At the adoption hearing, held on June 28, 2013, the Goldmans attempted to introduce

a home study performed on their home by Deborah Rago, a licensed, certified social worker.

Lagios objected on the basis that Rago was not present to be cross-examined and that the

home study contained hearsay.2 The circuit court allowed the Goldmans to proffer the home

study. At the conclusion of the hearing, the court “recessed” for an opportunity to review

the parties’ arguments regarding the home study and allowed the parties to file posttrial briefs.

In his brief, Lagios asserted that the Goldmans had failed to comply with various adoption

statutes, including the requirement of a home study. The Goldmans argued that the court

could reopen the case in order to hear Rago’s testimony and accept the home study into

evidence. Additionally, in a letter to the court, the Goldmans specifically requested a hearing

for this purpose. On August 9, 2013, the circuit court entered an order reopening the record

“for the purpose of receiving additional evidence relevant to the issues involved in this

litigation,” which the court characterized as “life altering.” Lagios opposed this order in a

motion to reconsider. At a subsequent hearing on August 30, 2013, the circuit court stated

that the issue was “so grave and of such importance” that it would constitute an injustice not


       2
        Counsel for the Goldmans stated that Rago was not subpoenaed because she indicated
that she would be present for the hearing. However, she did not appear.


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to allow the record to be completed. The court heard Rago’s testimony and accepted the

home study into evidence.

       The circuit court entered its decree of adoption on September 17, 2013. The court

concluded that Lagios was not a fit and proper person to have custody of M. and that the

Goldmans were fit and proper persons to raise her. The court further found that the

Goldmans had substantially complied with all relevant adoption statutes. Lagios now appeals.

       We begin with our standard of review. Before an adoption petition can be granted,

the circuit court must find from clear and convincing evidence that the adoption is in the best

interest of the child. See In re Adoption of J.P., 2011 Ark. 535, 385 S.W.3d 266. We will not

reverse a circuit court’s decision regarding the best interest of a child to be adopted unless it

is clearly against the preponderance of the evidence, giving due regard to the opportunity and

superior position of the circuit court to judge the credibility of the witnesses. See id. Personal

observations of the court are entitled to even more weight in cases involving the welfare of

a young child. See id.

                               I. The Circuit Court’s Jurisdiction

       For his first point on appeal, Lagios contends that the circuit court never acquired

jurisdiction of this case due to the Goldmans’ failure to comply with various adoption statutes.

Specifically, he alleges deficiencies with respect to the following statutes.

                         A. Arkansas Code Annotated Section 9-9-210

       First, Lagios asserts that the Goldmans’ petition for adoption failed to comply with

Arkansas Code Annotated section 9-9-210 because it failed to state the following:


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              (4) The full name, age, place, and duration of residence of the petitioner;

              (5) The marital status of the petitioner, including the date and place of marriage,
       if married;

              (6) That the petitioner has facilities and resources, including those available
       under a subsidy agreement, suitable to provide for the nurture and care of the minor
       to be adopted and that it is the desire of the petitioner to establish the relationship of
       parent and child with the individual to be adopted;

             (7) A description and estimate of value of any property of the individual to be
       adopted;

             (8) The name of any person whose consent to the adoption is required, but
       who has not consented, and facts or circumstances which excuse the lack of his
       normally required consent, to the adoption; and

               (9) In cases involving a child born to a mother unmarried at the time of the
       child’s birth, a statement that an inquiry has been made to the Putative Father Registry
       and either:

                    (A) No information has been filed in regard to the child born to this
              mother; or

                      (B) Information is contained in the registry.

Ark. Code Ann. § 9-9-210(a)(4)–(9).

       We first note that, for reasons explained later in this opinion, Lagios’s consent to the

adoption was not required. Additionally, in accordance with Arkansas Code Annotated

section 9-9-206, consent to this adoption was not required of any other person. Therefore,

the Goldmans did not fail to comply with section 9-9-210(a)(8). Moreover, as the Goldmans

point out, the need for an inquiry into the putative-father registry had already been obviated

when the petition was filed; DNA testing had already established that Lagios was M.’s




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biological father. Accordingly, the Goldmans did not fail to comply with section 9-9-210

(a)(9).

          With respect to the other four items, the Goldmans respond that any information

missing from their petition was introduced and made part of the record through testimony,

subsequent pleadings, and exhibits. As they point out, this court has upheld the validity of

an adoption petition where there was substantial compliance with the statutory requirements.

See Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927). In Arkansas Department of Human

Services v. Couch, 38 Ark. App. 165, 171, 832 S.W.2d 265, 269 (1992), our court of appeals

explicitly rejected the argument that a petition for adoption was fatally defective for failure

to include all of the information required by section 9-9-210: “Other statutory information

required was introduced by the pleadings and testimony of the parties. We find there was

substantial compliance with the statutory requirements and the petition was not fatally

defective.” The same can be said here.

          It is true that this court has held that adoption statutes are to be strictly construed and

applied because they are in derogation of the common law. See, e.g., Swaffar v. Swaffar, 309

Ark. 73, 827 S.W.2d 140 (1992). However, we have simultaneously held that an adoption

decree is void unless all “jurisdictional” requirements “appear in the record.” Id. at 79, 827

S.W.2d at 144; see also Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930). We have

limited our strict-compliance standard to those statutory requirements that are jurisdictional

in nature—specifically and primarily, those having to do with consent. See Martin v. Martin,

316 Ark. 765, 875 S.W.2d 819 (1994); Swaffar, 309 Ark. 73, 827 S.W.2d 140; In re Adoption


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of Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990); In re Adoption of Glover, 288 Ark. 59, 702

S.W.2d 12 (1986). In addition, we have held that statutory requirements—even jurisdictional

ones—are satisfied when the necessary evidence is made part of the record “before the

adoption decree [is] entered.” Martin, 316 Ark. at 770, 875 S.W.2d at 821. Our court of

appeals has explained as follows:

               In Swaffar v. Swaffar, 309 Ark. 73, 80, 827 S.W.2d 140, 144 (1992), the
       Arkansas Supreme Court cited the jurisdictional requirement of consent and that “the
       consent of the person to be adopted, as required by statute, must not be presumed.”
       The court emphasized that it was the total lack of evidence of consent in the record, that
       resulted in the probate court’s lack of jurisdiction. The court in Swaffar simply recognized
       that with no evidence of consent in the record, the court could not substantiate the
       probate court’s jurisdiction over the minor to be adopted. See id. at 79–80, 827
       S.W.2d at 144; see also In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997)
       (finding suggestion that probate court lacked subject-matter jurisdiction for lack of
       strict compliance with the adoption statutes was not valid where cases addressed
       jurisdiction of the person).

               Similarly, the consent and knowledge of the adoptive parent must not be
       presumed. In stark contrast to Swaffar, however, the record in this case provides ample
       evidence of knowledge and consent. [The petitioner] appeared before the judge and
       under oath verified the allegations in the petition. He presented additional testimony
       about himself, his concern for the child’s welfare, and his commitment to providing
       for the child financially and emotionally. The evidence concerning [the petitioner’s]
       knowledge and participation in the adoption proceeding was before the court, and the
       probate judge did not abuse his discretion in finding statutory requirements had been
       satisfied.

Reid v. Frazee, 72 Ark. App. 474, 478, 41 S.W.3d 397, 399–400 (2001) (emphasis added).

       In short, this court has specifically rejected the suggestion that “any noncompliance

with the adoption code, however slight, would prohibit a probate court’s entry of an adoption

decree.” Martin, 316 Ark. at 769, 875 S.W.2d at 821. Accordingly, we hold that the failure

of the Goldmans’ adoption petition to include all of the information required by section 9-9-


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210(a) did not deprive the circuit court of jurisdiction where all of the information was made

part of the record before the adoption decree was entered.

                       B. Arkansas Code Annotated Section 9-9-211

       Second, Lagios contends that the Goldmans failed to comply with section 9-9-211,

which provides as follows, in pertinent part:

              (a) Except as specified in subsection (b) of this section, the petitioner, in any
       proceeding for the adoption of a minor, shall file, before the petition is heard, a full
       accounting report in a manner acceptable to the court of all disbursements of anything
       of value made or agreed to be made by or on behalf of the petitioner in connection
       with the adoption. The petitioner shall file a sworn affidavit showing any expenses
       incurred in connection with:

                      (1) The birth of the minor;

                      (2) Placement of the minor with petitioner;

                     (3) Medical or hospital care received by the mother or by the minor
              during the mother’s prenatal care and confinement;

                     (4) Services relating to the adoption or to the placement of the minor
              for adoption which were received by or on behalf of the petitioner, either
              natural parent of the minor, or any other person; and

                     (5) Fees charged by all attorneys involved in the adoption, including
              those fees charged by out-of-state attorneys.

              ....

              (c) The petitioner shall file a signed, sworn affidavit verifying that all expenses
       as required by this section have been truthfully listed and shall be informed by the
       court as to the consequences of knowingly making false material statements.

Ark. Code Ann. § 9-9-211(a) & (c).




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       Lagios acknowledges that the Goldmans did file an affidavit of expenses as required by

section 9-9-211. However, he avers that it was deficient because it was filed on July 2,

2013—in other words, it was not filed “before the petition was heard” on June 28, 2013. For

the reasons stated above, we hold that Lagios has failed to establish that section 9-9-211 sets

forth a jurisdictional requirement subject to strict compliance. The Goldmans substantially

complied with the statute by filing their affidavit of expenses two business days after the first

adoption hearing.

                       C. Arkansas Code Annotated Section 9-9-212

       Third, Lagios argues that the Goldmans failed to comply with certain subsections of

section 9-9-212. He points to subsection (b)(1)(A), which requires that a home study be

conducted “[b]efore placement of the child in the home of the petitioner” and to subsection

(b)(4)(B), which states that “[a] written report of the home study shall be filed with the court

before the petition is heard.” Ark. Code Ann. § 9-9-212(b)(1)(A) & (b)(4)(B). Here, a home

study was conducted in a timely manner. M. was already living with the Goldmans at that

point, but there was a guardianship in place; the home study was conducted before the

adoption was granted. Furthermore, the written report of the home study was filed with the

court at the August 30, 2013 hearing. While Lagios takes issue with the fact that it was not

filed at or prior to the June 28, 2013 hearing, we conclude that there was substantial

compliance with the statute. The circuit court’s decision to hold a subsequent hearing for the

purpose of introducing the home study into evidence is addressed later in this opinion.




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       Lagios also alleges noncompliance with subsection (f), which provides as follows:

               When one (1) parent of a child or children is deceased, and the parent-child
       relationship has not been eliminated at the time of death, and adoption proceedings are
       instituted subsequent to such decease, the parents of the deceased parent shall be
       notified under the procedures prescribed in this subchapter of such adoption
       proceedings, except when the surviving parent-child relationship has been terminated
       pursuant to § 9-27-341.

Ark. Code Ann. § 9-9-212(f). The Goldmans submit that the requirement of notifying the

biological mother’s parents of the adoption proceeding was eliminated by virtue of the

testimony of the mother’s sister. She stated on the record that their father was deceased and

that they “didn’t have a mother present” for most of their lives. Lagios maintains that M.’s

maternal grandmother should have received notice nonetheless.

       This court has not had an occasion to interpret section 9-9-212(f), beyond our holding

that it grants to grandparents a right to notice of adoption proceedings but does not grant to

them a right to intervene or a right to be heard in adoption proceedings. See In re Adoption

of Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000) (interpreting then section 9-9-212(g),

which was redesignated section 9-9-212(f) in 2003). However, in the context of the notice

requirement for natural parents, we have specifically rejected the argument that a failure to

give notice “was fatal to the [t]rial [c]ourt’s ‘jurisdiction’ because of the lack of strict

compliance with the adoption statutes requiring such notice.” In re Adoption of Lybrand, 329

Ark. 163, 167, 946 S.W.2d 946, 948 (1997). In so holding, we suggested that notice

requirements have to do with jurisdiction of the person, not subject-matter jurisdiction. Id.




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On this basis, we hold that the failure to strictly comply with section 9-9-212(f) in this case

did not deprive the circuit court of jurisdiction.

                                     II. Lagios’s Consent

       For his second point on appeal, Lagios contends that the circuit court abused its

discretion in allowing the adoption of M. to proceed without his consent. As Lagios points

out, the circuit court did not address this issue in the decree of adoption. However, the court

did find that Lagios had failed to make any efforts to visit the child or to provide any support

to the child, which would have eliminated any requirement that he consent pursuant to

Arkansas Code Annotated section 9-9-207.

       While neither party mentions it, this issue is controlled by statute. Arkansas Code

Annotated section 9-9-206(a) lists those who must consent to an adoption of a minor.

Subsection (a)(2) provides that the father of the minor must consent in the following

circumstances:

               (A) The father was married to the mother at the time the minor was conceived
       or at any time thereafter;

              (B) The minor is his child by adoption;

              (C) He has physical custody of the minor at the time the petition is filed;

              (D) He has a written order granting him legal custody of the minor at the time
       the petition for adoption is filed;

              (E) A court has adjudicated him to be the legal father prior to the time the
       petition for adoption is filed;

              (F) He proves a significant custodial, personal, or financial relationship existed
       with the minor before the petition for adoption is filed; or


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              (G) He has acknowledged paternity under § 9-10-120(a).

Ark. Code Ann. § 9-9-206(a)(2).

       Lagios does not fall into any of these categories. He was never married to the mother,

M. is not his child by adoption, he did not have physical custody of M. when the adoption

petition was filed, there was no written order granting him legal custody of M. when the

adoption petition was filed, and he did not acknowledge paternity under Arkansas Code

Annotated section 9-10-120(a). While the Union County Circuit Court did adjudicate him

to be M.’s legal father, that order was entered on January 14, 2013; therefore, it was not

entered prior to the time the adoption petition was filed on September 6, 2012. Additionally,

while Lagios referred in his testimony to having visited M. “[a] bunch of times” at Henson’s

home while she was still in his care, there can be no doubt that he failed to prove that he had

a significant custodial, personal, or financial relationship with M. before the adoption petition

was filed. Accordingly, Lagios’s consent to the adoption was not required. See Ark. Code

Ann. § 9-9-207(a)(3) (stating that consent to adoption is not required of the father of a minor

if the father’s consent is not required by § 9-9-206(a)(2)).

                                   III. Reopening the Record

       For his next point on appeal, Lagios argues that the circuit court abused its discretion

in reopening the record for the purpose of hearing Rago’s testimony and receiving the home

study into evidence. The parties—and even the circuit court—characterized the court’s ruling

reopening the record as sua sponte. It is true that neither side filed a motion requesting that

the record be reopened; however, both sides addressed the issue in their posttrial briefs, and


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the Goldmans specifically requested that the record be reopened in a letter to the court.

        In any event, this court has made clear that trial courts have considerable discretion in

the control and management of proceedings before them. See, e.g., Midwest Lime Co. v.

Independence Cnty. Chancery Ct., 261 Ark. 695, 551 S.W.2d 537 (1977). In explaining the

scope of that discretion, we have addressed the same situation as that presented in the instant

case:

                Even in a jury trial, the reopening of a case for further proof, after both sides
        have rested, is a matter lying within the sound discretion of the trial court. In a non-
        jury trial the latitude of the court’s discretion to hear further evidence when the court
        has the case under submission after trial but before any judgment has been entered is
        quite broad. . . .

                It has been said that courts should exercise their discretion as to the admission
        of evidence pertinent to a material issue in the case for the advancement of the right
        and to the end that justice may be done conformably to the laws and that refusing to
        allow testimony under appropriate circumstances is not a proper exercise of judicial
        discretion. On the other hand, the court’s purpose in admitting testimony in order to
        ascertain the truth of the matter to be determined is an important consideration
        militating against our finding of an abuse of discretion.

Id. at 703–04, 551 S.W.2d at 540–41 (internal citations omitted). Thus, in this case, which

was tried to the bench, the circuit court had broad discretion to reopen the case for further

proof after both sides had rested, particularly to “ascertain the truth of the matter to be

determined” on a material issue. Id. at 704, 551 S.W.2d at 541. See also Tackett v. First Sav.

of Ark., F.A., 306 Ark. 15, 810 S.W.2d 927 (1991) (stating that a trial court has discretion to

reopen the record before entry of a final decree, so long as both parties are afforded the

opportunity to be heard on the matter).




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       It is true that adoption proceedings, unknown to the common law, are governed

entirely by statute. See, e.g., In re Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491

(1997). There is an adoption statute addressing this issue: Arkansas Code Annotated section

9-9-214(b) provides that “[t]he court may continue the hearing from time to time to permit

further observation, investigation, or consideration of any facts or circumstances affecting the

granting of the [adoption] petition.”      Lagios attempts to draw a distinction between

continuing a hearing and reopening a record. This argument is not well taken. At the

conclusion of the June 28, 2013 hearing, the circuit court expressed that the hearing would

be “recessed” to give the court an opportunity to review the arguments made by the parties,

which included whether the home study should be accepted into evidence.

       In accordance with Midwest Lime, 261 Ark. 695, 551 S.W.2d 537, and section 9-9-

214(b), we conclude that the circuit court did not abuse its broad discretion in holding a

subsequent hearing so that the Goldmans could introduce the home study into evidence. As

the circuit court stated, the issue presented in the case was so grave and of such importance

that it would constitute an injustice not to allow the record to be completed.

                                       IV. Best Interest

       Finally, Lagios argues that the evidence presented in this case does not support the

circuit court’s finding that the adoption of M. by the Goldmans is in her best interest. As

stated above, before an adoption petition can be granted, the circuit court must find from

clear and convincing evidence that the adoption is in the best interest of the child. See, e.g.,

In re Adoption of J.P., 2011 Ark. 535, 385 S.W.3d 266. We will not reverse a circuit court’s


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decision regarding the best interest of a child to be adopted unless it is clearly against the

preponderance of the evidence, giving due regard to the opportunity and superior position

of the circuit court to judge the credibility of the witnesses. See id.

       Here, the circuit court found that the adoption was in M.’s best interest because Lagios

was not a fit and proper person to have custody of her and because the Goldmans were fit and

proper persons to raise her. On the issue of Lagios’s unfitness, the court noted that he was

fifty-six years old—though Lagios actually testified that he was sixty-one years old at the time

of the hearing—that he was single; and that he worked shift work at a water utility and part-

time as a security guard, in addition to owning and maintaining four rent houses. The court

focused on three primary concerns.

       First, it noted Lagios’s testimony that, approximately three years prior, he had met a

woman named Marie Addams online and had brought her to live with him. Lagios and

Addams both testified that she had previously been living in a barn “like an animal” and that

she was in danger, although they did not identify what the danger was. The court stated in

its decree that this situation was “enormously disturbing” and that a child should not be

exposed to such risks. The court also noted Lagios’s testimony that both he and Addams

would be the caregivers of M. if he were granted custody. The court pointed out that

Addams had never met M. and that there was no evidence that she had any experience caring

for children.

       Second, the court noted Deanne Goldman’s testimony that M. is allergic to smoke and

Lagios’s testimony that he smokes a pack of cigarettes per day. The court found that “the


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health and safety of [M.] would immediately be compromised if she were required to reside

in the residence of Mr. Lagios.”

       Third, the court pointed out that Lagios had learned in August 2012 that he was M.’s

biological father. After that point, he made no efforts to establish a relationship with her or

offer support to her.

       Conversely, the court found that the Goldmans were financially, physically, morally,

and socially fit to raise M. Specifically, the court found that Kenneth Goldman had worked

for the same employer for more than thirty years; that Deanne Goldman owned and operated

a successful retail business; that the Goldmans were regular, active members of a local church;

and that M. had spent the vast majority of her life being cared for, nurtured, and loved by the

Goldmans. Importantly, the court found that a strong familial bond existed between M. and

the Goldmans.

       These findings constitute clear and convincing evidence that the adoption is in M.’s

best interest. Certain findings are not persuasive; for example, as Lagios points out, the fact

that he works shift work and has an additional part-time job tends to show that he is

hardworking, if anything. But his questionable judgment—as reflected in the testimony about

his living arrangement with Addams—and his failure to offer any support to M. are critical.

       We are convinced that the circuit court’s best-interest finding is not against the

preponderance of the evidence for two primary reasons. First, the circuit court was in a far

superior position to observe the parties and judge the credibility of the witnesses. See, e.g.,

In re Adoption of M.K.C., 2009 Ark. 114, 313 S.W.3d 513. It is well settled that we give great


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weight to a trial judge’s personal observations when the welfare of young children is involved.

See id. We have said that this is so because there are no cases in which the superior position,

ability, and opportunity of the trial judge to observe the parties carries a greater weight than

those involving the custody of minor children. See, e.g., McNutt v. Yates, 2013 Ark. 427, 430

S.W.3d 91.

       Second, as the circuit court pointed out, M. has spent almost her entire life in the care

of the Goldmans. Henson placed her in their care when she was approximately one month

old, and she is now four years old. The evidence clearly showed that the Goldmans are the

only people she knows as her parents and that Lagios is a stranger to her. For these reasons,

we cannot say that the circuit court’s finding that the adoption is in her best interest is against

the preponderance of the evidence.

       The only argument that Lagios develops on appeal is that the circuit court ignored

certain facts about Deanne Goldman. For the most part, Lagios badly misrepresents Deanne’s

testimony. For example, contrary to Lagios’s claim that she lied in court about her address,

Deanne explained that an incorrect address was set forth on her guardianship petition due to

an oversight. Contrary to Lagios’s claim that she lied in court about M.’s receipt of Social

Security income, Deanne explained that the income was not listed in the guardianship petition

because M. was not receiving it at that time; Henson was receiving it until March 2013. In

short, each of Lagios’s contentions is either factually inaccurate or irrelevant. Accordingly,

we are not convinced by Lagios’s arguments on the issue of best interest.




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       For all of the above-stated reasons, we affirm the circuit court’s decree of adoption.

       Affirmed; court of appeals’ opinion vacated.

       Special Justice LONA MCCASTLAIN joins in this opinion.

       BAKER, J., concurs.

       HART, J., dissents.

       WOOD, J., not participating.

       KAREN R. BAKER, Justice, concurring. Although I agree with the majority in this

case, I write separately to address two separate points.

       First, with regard to Lagios’s consent, based on the record and Lagios’s point on appeal,

I agree that the circuit court did not err. Pursuant to Ark. Code Ann. § 9-9-206, Lagios

simply does not fall within any of these categories that would require his consent to the

adoption. However, I must emphasize that Lagios did not assert that this statute infringed

upon his fundamental right as a natural parent or challenge the constitutionality of the statute.

In his brief, Lagios states,

       One thing is absolutely clear and that is that the integrity of the relationship between
       a biological parent and a child is sacred . . . . [I]f the statute was open to construction
       and interpretation, it should be construed in support of the right of the natural parent.

However, Lagios failed to present a constitutional challenge to the statute. Therefore, based

on the record before us, the applicable statute, and our standard of review, we must affirm the

circuit court.

       Second, I write to address Lagios’s argument regarding Ark. Code Ann. § 9-9-212(f)

which states:


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       When one (1) parent of a child or children is deceased, and the parent-child
       relationship has not been eliminated at the time of death, and adoption proceedings are
       instituted subsequent to such decease, the parents of the deceased parent shall be
       notified under the procedures prescribed in this subchapter of such adoption
       proceedings, except when the surviving parent-child relationship has been terminated
       pursuant to § 9-27-341.

       Lagios contends that the circuit court did not acquire jurisdiction because the

Goldmans failed to comply with this subsection. Specifically, Lagios asserts that Morgan’s

parents were not notified of the adoption proceedings — “no proof of such notification was

presented at trial” — and therefore, the circuit court did not acquire jurisdiction to enter the

adoption decree. This argument fails for two reasons. First, at the June 28, 2013 hearing,

Ensminger testified that Morgan’s father had predeceased Morgan, and their mother was not

present in their lives since their childhood. Based on her testimony, it is evident that, based

on the particular facts in this case, the notice requirement was satisfied because Morgan’s

father was deceased and her mother was not present and able to be notified. Further, the

Goldmans were not required to notify the next of kin, here, Ensminger, but did so as is

demonstrated by Ensminger’s testimony. Accordingly, notice under this subsection was

provided. Second, Lagios appears to have misread this subsection because it does not apply

to him. Lagios is not “the parents of the deceased,” and notice to him was not required based

on this subsection. Simply put, Lagios does not have standing to make this argument and

cannot complain that the circuit court did not acquire jurisdiction. See generally Racine v.

Nelson, 2011 Ark. 50, at 15, 378 S.W.3d 93, 101.




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       Based on my discussion above, I concur in the majority’s opinion and would affirm

the circuit court.

       JOSEPHINE LINKER HART, Justice, dissenting. In this remarkable decision, the

Arkansas Supreme Court has affirmed the adoption of a child without the consent of the

child’s only natural parent, where that person was known to the court, was not incompetent,

and whose parental rights had not been terminated in a proceeding brought by the State of

Arkansas. Strip away all the legalese and what you have is an Arkansas circuit court, over the

objection of a child’s only living natural parent, giving that child to a legal strangers.

       Just as remarkable, this court has affirmed the circuit court’s decision even though it

is clear that our adoption statute—the formalities embodied therein constituting the due-

process protections afforded to a natural parent—was not strictly complied with. The

Supreme Court of the United States has said:

       The interest of parents in the care, custody, and control of their children—is perhaps
       the oldest of the fundamental liberty interests recognized by this Court. More than 75
       years ago, in Meyer v. Nebraska, 262 U.S. 390 (1923), we held that the “liberty”
       protected by the Due Process Clause includes the right of parents to “establish a home
       and bring up children.”

Troxel v. Granville, 530 U.S. 57 (2000). I cannot agree that this court has afforded Mr. Lagios

due process when this court picks and chooses which parts of a comprehensive uniform

adoption code must be strictly followed and relegates the rest to “substantial compliance”

only. The majority’s citation to Swaffar v. Swaffer, 309 Ark. 73, 827 S.W.2d 140 (1992),

which states that adoption statutes must be “strictly construed,” is obviously intended only

to be ironic. Saying it and doing it are quite different.


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       One month before the Goldmans filed their adoption petition, DNA testing proved

that Mr. Lagios was MH’s natural father. Even though there was a curiously long delay

between when Mr. Lagios was conclusively shown to the natural parent and when the circuit

court actually entered the paternity order, had the circuit court strictly complied with our

adoptions statutes, it would have been required to dismiss the Goldmans’ petition.

Accordingly, by the time the Goldmans refiled their petition, Mr. Lagios would have been

declared “the legal father prior to the time the petition for adoption [was] filed.” Ark. Code

Ann.§9-9-206(a)(2)(E). In short, Mr. Lagios’s consent would have been required for the

adoption. So, while the legal strangers were only required to substantially comply with our

adoption statutes, Mr. Lagios, the known, natural father, was stripped of his parental rights by

holding him to strict compliance. In my view, the circuit court—and the majority—got it

backwards.

       I am mindful that the circuit court also found that Mr. Lagios’s consent was not

necessary, pursuant to Arkansas Code Annotated section 9-9-207. As I have noted previously,

Mr. Lagios’s parental rights were not and have not been terminated pursuant to an action filed

by the Arkansas Department of Human Services. Likewise, section 9-9-207 should not have

been applied here because Mr. Lagios did not “abandon” the child. As soon as he suspected

that he might be MH’s father, he began trying to establish paternity. Finally, it is not disputed

that Mr. Lagios visited the child frequently and that when the Goldmans secured a

guardianship, they kept Mr. Lagios from visiting the child.




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       Finally, the majority has ignored key parts of Mr. Lagios’s fourth point on appeal. Mr.

Lagios’s argument begins by asserting that the starting point of the court’s analysis should be

the sanctity of his rights as a natural parent. He refers to his citation of Martin v. Martin, 316

Ark. 765, 875 S.W.2d 822 (1994), which stands for the proposition, “No matter what the

standard is relative to substantial compliance or strict compliance to the statutory provisions

of the Arkansas Adoption Code, one thing is absolutely clear that is that the integrity of the

relationship between a biological parent and a child is sacred and is to be protected absent a

showing that the parent from whom the adoption is being sought is a danger to the child.”

His argument next addresses his ability as a parent who has already raised a family, his work

ethic, and his compassion. The majority should have addressed the argument that Mr. Lagios

actually made, at least if it had intended to give Mr. Lagios even a modicum of due process.

       The majority treats its review as if it was looking only for any evidence to support the

circuit court’s decision. Accordingly, the majority has employed the wrong standard of

review; its review appears to be the sufficiency of the evidence, not a de novo review under

a clear and convincing evidence standard. See Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93.

It launches directly into Mr. Lagios’s supposed unfitness: his advanced age—56 years old, that

he worked two jobs, that he had a three-year relationship with a woman whom he met

online, and that he smoked tobacco. Without examining the record too closely, the majority

judged the Goldmans to be better people, “financially, physically, morally, and socially.”

Perhaps this is the most disturbing aspect of this opinion.




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       Previously, this court has recognized the rights of natural parents, “however poor and

humble they might be, if able to support their child in their own style of life, not as a cardinal

principle of law and nature, to be deprived of parental privileges, except when urgently

necessary to afford the child reasonable protection.” Davis v. Smith, 266 Ark. 1125, 83

S.W.2d 37 (1979). Nothing found by the circuit court shows that Mr. Lagios is unable to

properly care for his daughter. Undoubtedly, if he was granted custody of his child, Mr.

Lagios would be obligated to make some changes in his life, but so would every family faced

with the arrival of a new child. It is an unfair and meaningless to compare Mr. Lagios’s

situation with the Goldmans, who have already accommodated the addition of a child.

Certainly, that does not make Mr. Lagios “unfit.” It is totally disingenuous for the circuit

court and for this court to suggest otherwise.

       The majority has eliminated the parental rights of a natural parent in favor of people

who are wealthier and more socially prominent, calling it in the “best interest of the child.”

Nearly a century and a half ago, this court condemned this type of decision, stating, “Any

system of jurisprudence which would enable the Courts, in their discretion and with a view

solely to the child’s best interests, to take from [a natural father] that right and interfere with

[his parental] duties, would be intolerably tyranical, as well as Utopian.” Verser v. Ford, 37

Ark. 27 (1881). I caution my colleagues on this court to understand that once we start

deciding who should parent our children based on such seemingly objective criteria as wealth

or social standing, no family is safe.

       I dissent.

       Depper Law Firm, Inc., by: Robert L. Depper, Jr., and Caleb Baumgardner, for appellant.

       Burbank Dodson & Barker, PLLC, by: Jack W. Barker, for appellees.


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