ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA03-209

June 25, 2003

MARGARET COCKRELL AN APPEAL FROM CONWAY

APPELLANT COUNTY CIRCUIT COURT

[PR02-32]

V. HON. VAN B. TAYLOR, JUDGE

TEMEKA DEANN DILLARD

APPELLEE AFFIRMED

This appeal arose from an order setting aside an adoption order previously entered in the Circuit Court of Conway County. Margaret Cockrell argues that (1) the trial court erred in setting aside an interlocutory order for adoption without first finding that the biological mother's consent to the adoption was the result of fraud, duress, or intimidation; and (2) the trial court's finding that the minor never resided with appellant was clearly against the preponderance of the evidence, and, even if accurate, was not an appropriate basis for setting aside the interlocutory order of adoption. We affirm the order setting aside the adoption.

Temeka Deann Dillard, appellee, is the natural mother of Mauri, born on June 19, 2001. Mauri's natural father is Cartez Antwan Cockrell, who is Margaret Cockrell's son. Cartez Cockrell was never legally declared the father of Mauri although paternity does not appear to have been disputed as far as we can determine from the record. On April 25, 2002,Margaret Cockrell filed a petition for guardianship of Mauri. The petition stated that Mauri's parents were unable to care for her. Both Temeka Dillard and Cartez Cockrell signed their consent to the guardianship. At the time of the guardianship proceeding, Dillard was twenty-one years of age and Cartez Cockrell was twenty-four. The trial court entered an order, filed April 26, 2002, appointing Margaret Cockrell guardian of the person and estate of Mauri.

A few days later, on May 1, 2002, Margaret Cockrell filed a petition for adoption of Mauri In her petition, Margaret Cockrell alleged that she had custody of Mauri since her birth. As before, regarding the guardianship proceeding, Dillard and Cartez Cockrell signed consent forms, this time entitled "Consent to Adoption." On the first page of the consent form, the statement appears in writing that Mauri "has been residing with Margaret Cockrell . . . since the child's birth." The consent form also clearly stated that "I hereby Consent to a Adoption of the above named minor child and that the Circuit Court, Probate Division of Conway County, Arkansas, may grant said adoption of the child to Margaret Cockrell without further notice to me or any other person of any kind." On the second page of the consent form appears the signature line, signed by Dillard. There is also a "Verification" paragraph, again signed by Dillard, stating that she swears that the statements in the "foregoing Consent to Adoption are true and correct."

The trial court entered an order, filed May 13, 2002, entitled "Final Order of Adoption," granting Margaret Cockrell's petition to adopt Mauri. In its order, the trial court specifically restated that Margaret Cockrell had custody of Mauri since her birth.

A little over five months later, on October 23, 2002, Dillard filed a petition to setaside the adoption. In the petition, she alleged that she had Mauri in her "total care, custody and control at all times since the birth of the child." She further alleged that her consent had been procured "by fraud, deceit and trickery and that she thought and was informed that she was merely agreeing to a guardianship-type arrangement with the child's grandmother to enable the child to be covered by the grandmother's health insurance plan." Dillard asserted that "she never knowingly agreed to place her child for adoption and has been the child's primary caretaker at all times up to and today and plans to continue in that role into the future." In the petition, she also alleged that she had not read the "Consent to Adoption" form filed in this matter and was merely presented with a signatory page of the document to sign by the secretary of the attorney who prepared the pleadings.

During the hearing concerning Dillard's petition to set aside the adoption decree, Dillard testified regarding her relationship with Mauri. Dillard said that she had custody of Mauri and always was the one paying for Mauri's daycare. Mauri has attended daycare in Conway since December 17, 2001, with Dillard taking her there and picking her up. Dillard also testified that she formerly lived with Cartez Cockrell, but subsequently moved in with her mother. Dillard and Cockrell ended their relationship on October 12, 2002. Particularly, Dillard stated that neither she nor Mauri ever lived at Margaret Cockrell's address. According to Dillard, Mauri only spent some time with Margaret Cockrell, "time, more than a day, . . . maybe five or six times."

Dillard stated in court that she now has a job. She now provides health and dental insurance for Mauri. She was the one who saw to it that Mauri received her vaccinations on October 24, 2001, and October 29, 2002.

Dillard also testified about the alleged purposes and intentions behind the adoption proceeding now in challenge. She reiterated her claim that the proceeding was merely meant to help her to obtain insurance for Mauri at a time when neither she nor Cartez Cockrell could afford insurance because they were both students. Thus, the proceedings should only have resulted in a "temporary guardianship," for Margaret Cockrell to put Mauri on her insurance. Dillard again claimed that she did not know that she was signing adoption papers. Specifically, she stated that she "went in to sign the paperwork, [and] found out it was to be adoption papers." She "did not understand that it was adoption papers." She "thought it was the same thing as temporary custody." Later in the testimony, she stated again that she thought "a guardianship and adoption were the same." Dillard allegedly signed the consent form because she "just wanted [Mauri] to have some insurance," "because at the time my daughter was sick a lot." Dillard signed the adoption papers even though she realized that the consent form declared that Mauri had been living with Margaret Cockrell and that that was not true.

Dillard also explained in her testimony that she was aware of the guardianship proceeding that had been initiated just a short time before the adoption. She stated:

When we first went to the office, [the attorney] was going to have papers drawn up for a guardianship. Then he said he would go before the judge. I figured he went before the judge. When we went back to sign those papers, that's what I thought it was. I thought this was a continuation of the guardianship that had already been started. No one at any time informed me this was an adoption, or that I was giving up rights to my child. I never told anyone that I wanted to give up my rights as a mother to this child.

She further testified that when she went to sign the consent form the attorney was not in the office. According to Dillard, the secretary, who was present, did not explain the form andsimply indicated where to sign.

Rita Purtle, a child-care provider in Conway, testified that Mauri had attended her child care facility for at least one year and that Dillard was the one who had paid the bills for the daycare. Only on a couple of occasions did she see Cartez Cockrell come in and pay the bill, but even then Temeka Dillard had called her beforehand to inform her of the matter. Purtle never saw Margaret Cockrell bring Mauri in to daycare, pick her up, or pay the bill. She never received checks from Margaret Cockrell.

The next witness was Ramona Criswell, Temeka Dillard's best friend. They grew up together and talk every day. She knew Mauri and Cartez Cockrell, but did not know Margaret Cockrell very well. Ramona Criswell stated that Mauri "lived with Ted and Temeka the whole time ever since birth." According to her, Mauri never lived with Margaret Cockrell. Criswell verified that Dillard had moved out of Cartez Cockrell's house on October 12, 2002, and that Mauri had moved with her. She never saw Mauri in Margaret Cockrell's custody.

Stephanie Robinson testified that she lived three houses away from Margaret Cockrell's residence and that she had never seen Margaret Cockrell with Mauri. She had seen Dillard and Cartez Cockrell at Margaret Cockrell's house with the child.

Dorothy Smith, Dillard's cousin, testified that she knew Mauri and Cartez and Margaret Cockrell. She testified that Dillard never mentioned anything to her about putting Mauri up for adoption, even though she saw Dillard all the time because they lived close by. She testified further that she now sees Dillard about once a week and that she has a baby with her. She never heard anyone say anything about Mauri living anywhere else.

Beverly Williams, Dillard's mother, stated that her daughter moved in with her on October 12, 2002, along with Mauri. Williams further testified that she formerly visited her daughter and Cartez Cockrell once or twice a week and that Mauri had always been there. She had never heard anything about adoption plans. According to Williams, Dillard had always had the child. She stated in court that her daughter now has a good job and takes care of Mauri. She also stated that Dillard had insurance for Mauri To her knowledge, Mauri had never lived with anyone else. Williams testified that she had paid for certain medical expenses for Mauri in the past.

Margaret Cockrell, the adoptive mother of Mauri and Cartez's mother, testified that the guardianship and adoption proceedings started because Dillard and her son were unable financially to take care of Mauri. She stated that she had given them money to pay for bills and necessities, instead of paying those bills herself. According to Cockrell, Mauri had been with her from the age of about two months. Cockrell denied that the primary intent behind the adoption was for insurance purposes, but also stated that she did not want Mauri "to go without." She testified that she wanted guardianship of Mauri because she was the one who took care of Mauri financially. She then stated that the proceeding changed to an adoption proceeding

because we did start the guardianship papers, and I draw disability like I said. So, I needed some help financially, for the baby and them. The purpose in seeking the adoption is because I couldn't get help for the baby without adopting her-social security, that type of thing.

Cockrell also testified that "this was never an attempt to take the baby away from my son or Temeka. I would take the baby to them and they would keep the baby." On cross-examination, she also stated that the adoption was done because Dillard "was a bad mom." Cockrell denied tricking Dillard into signing her consent form for the adoption. In fact, she claimed that Dillard had brought up adoption as an alternative to the guardianship herself. Cartez Cockrell testified that he and Dillard had discussed the differences between guardianship and adoption. He asserted that both the attorney who drafted the pleadings and consent forms as well as his secretary explained the documents to both Dillard and him on two different occasions. Cartez Cockrell claimed that Mauri stayed with his mother, Margaret Cockrell. He also denied that the adoption took place to get social security and other benefits for the child. He stated that Dillard was "an unfit mom," but that he had continued to live with her for months after that to see if things worked out. Cartez Cockrell testified that he would see Mauri whenever he liked if Mauri could stay with Margaret Cockrell and the adoption were upheld. He also pointed out that, if the adoption were set aside, Dillard had threatened him that he would no longer be able to see Mauri

The next witness was Sandee Bridgeman, the secretary of the attorney who drafted the documents in question. She stated that there were no problems when Dillard and Cartez Cockrell came into the office to review and sign the consent forms. According to her, they both read the forms. She asked them if they had any questions, but they indicated that they understood what they were about to sign. Bridgeman did not remember telling Dillard that the attorney was not in the office that day. However, she confirmed in her testimony that the guardianship proceeding took place to cover Mauri with health insurance.

At this point, the trial court intervened:

COURT: The purpose of that [the guardianship proceeding] was drawing SocialSecurity, wasn't it?

WITNESS: Yes. They were all staying together, and the child was with the grandmother is what I understood.

COURT: Do you know that to be a fact?

WITNESS: No, I don't know that to be a fact. That is what was presented to us by all three parties in the office.

COURT: The whole purpose of this adoption was getting Social Security for the child, wasn't it? That's the reason for the guardianship first, to find out the guardianship couldn't draw Social Security, so they come back and have the adoption, wasn't that what it was?

WITNESS: What I understood.

Finally, Michael Allison, the attorney in question, testified that he was in the office the day when Dillard and Cartez Cockrell signed the consent forms and that he did speak to them then. He explained that Bridgeman, his secretary, gave them the paperwork, and that they both took a good time to look over it. The attorney further stated:

I heard them get up and they were standing, and stood up and signed them. I was in my office during the time they were sitting there reading. I at least said, "Hello."

Upon the conclusion of the hearing, the trial court stated the following from the bench:

I think the parties did understand what was going on. I think they understood that they were putting this child-first, the guardianship, so that they could draw Social Security, and found out that guardianship wouldn't do it. And, they had to have an adoption to do. And then, they decided that would be the way to go. Whether there was a conspiracy or not, I don't know. But, I don't think the child ever resided with the grandmother. I think the child resided with the mother. The evidence couldn't establish this, the child lived with the grandmother at the time the adoption was granted or at the time the consent was signed. I think it was living with its natural parents.

I find it is not in the best interest of this child that this adoption be granted. And, I am therefore setting it aside.

The trial court filed an order setting aside the adoption decree on December 2, 2002. That order specifically stated that Mauri resided with Dillard both before and after the signing ofthe Consent to Adoption. Particularly, the

child never resided with Margaret Cockrell, let alone resided with her for six months or more as called for by Ark. Code Ann. § 9-9-213 and until the child's biological parents ended their relationship, on or about October 12, 2002, no claim for physical custody of the child was ever asserted by Margaret Cockrell.

The trial court found that Dillard had been Mauri's primary caretaker since birth. Furthermore, the trial court stated that this

was an adoption in name only, but not in actual practice, and it was arranged for the purpose of obtaining Social Security and/or benefits on behalf of the child. Such an arrangement is improper and potentially fraudulent. However, the court makes no findings as to who may have orchestrated or arranged the adoption for this purpose.

The appeal before us arises from that order.

Analysis

We review probate matters de novo and will not reverse probate findings of fact unless they are clearly erroneous. Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002); Morton v. Patterson, 75 Ark. App. 62, 54 S.W.3d 137 (2001). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Morton, supra. We also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).

Under Arkansas law, a "final decree of adoption shall not be issued and an interlocutory decree of adoption does not become final" until the minor adoptee has lived in the home for at least six months after the petition for adoption was filed. Ark. Code Ann. § 9-9-213 (Repl. 2002). Any decree of adoption is a final decree, whether it is interlocutory or final, if no subsequent hearing is required by the terms of that decree. In re AdoptionOrders, 277 Ark. 520, 642 S.W.2d 573 (1982). Therefore, the order in the present case constituted a final order for purposes of the subsequent proceeding to set aside the adoption and this appeal. However, we affirm the trial court's finding that Mauri had not been in Margaret Cockrell's parental care for any time, and certainly not for six months following the date of adoption, at the time when Dillard filed her petition to set aside the adoption.

Arkansas Code Annotated section 9-9-213 makes it clear that our legislature contemplates that an adopted minor will come within the care of the adoptive parent. The necessity of the adoptive parent taking custody of the minor adoptee further becomes clear in Ark. Code Ann. § 9-9-216(b) (Repl. 2002):

Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor . . . .

(Emphasis provided.)

We note that the issue before us is not one involving the expiration of a statutory period of limitation. However, the issue is whether the adoptive mother, Margaret Cockrell, assumed custody of Mauri, so that we can find the adoption to be completed. Ordinarily, a natural mother can withdraw her consent to an adoption only within the statutory ten-day period provided under Ark. Code Ann. § 9-9-209 (Repl. 2002). However, the present case is sufficiently analogous to a recent case decided by this court so that we must affirm the trial court's decision to set aside the adoption decree.

In Wunderlich v. Alexander, 80 Ark. App. 167, 92 S.W.3d 715 (2002), we held thatthe trial court's decision to set aside an adoption decree even after the statutory one-year period provided under Ark. Code Ann. § 9-9-216(b) was not clearly erroneous. In that case, we found it clearly established that the parties' respective relationships with the proposed adoptee did not change with the purported adoption and that the grandparents in that case did not consider the child to be their child or hold the child out to be theirs in the community. Id. In the Wunderlich opinion, we stated that the issue in that case was "whether appellants had `taken custody' of the child so as to permit the adoption decree to be set aside beyond the one-year period." Id. at 171, 92 S.W.3d at 717. Based on the facts in that case, we concluded that the trial court could find that appellants had never taken custody of the child. Id. at 173, 92 S.W.3d at 719.

We apply the same principles here. There was ample testimony before the trial court establishing that the primary caretaker of Mauri was Dillard, before and after the so-called adoption. Several witnesses stated that they had always seen Mauri with Dillard, that they had never seen Mauri living with Margaret Cockrell, that Dillard was the one who dropped off and picked up Mauri from daycare, and that Dillard was the one who paid the daycare bills. Admittedly, according to Margaret Cockrell's testimony, the money for those bills might have come from Margaret Cockrell, but that does not create an inference that Cockrell actually exerted custody in any parental sense over Mauri. In fact, Cockrell emphasized in her testimony that she took care of Mauri "financially." Besides asserting that Mauri actually resided with her-an assertion not corroborated by any witnesses other than her son-she never stated in specific details that she took care of Mauri, that she transported her to and from places, took care of Mauri's medical needs, held Mauri out to the communityas her daughter, or otherwise behaved like Mauri's mother toward the community.

Therefore, we agree with the trial court that this adoption was one in name only. We also point out, as did both the majority and the concurring opinion in Wunderlich v. Alexander, supra, that our refusal to put a judicial stamp of approval on such adoptions actually preserves the integrity of our adoption statutes. Our statutes were intended for real adoptions where adoptive parents assume the full role and responsibility of a parent. They were not intended to provide some sort of mechanism through which one might obtain social services or other benefits.

Arkansas Rule of Civil Procedure 60(c) (2003) states that the court in which a judgment other than a default judgment has been rendered or order made, shall have the power, after the expiration of ninety days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order: 4) for misrepresentations or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party. In the present case the trial court found that the adoption was procured in order for the child to draw social security benefits. In the petition for adoption appellant alleges that she has had custody of the minor child since birth. The trial court found this "potentially fraudulent." We agree.

Affirmed.

Gladwin and Bird, JJ., agree.