In re the Adoption of Pollock

Tom Glaze, Justice. In this appeal, this court is presented its first opportunity to interpret Arkansas’s Revised Uniform Adoption Act [Ark. Stat. Ann. §§ 56-201 — 221 (Supp. 1985)] to determine whether, under that Act, this state’s probate courts are empowered to grant an adoption when neither the adopting parents nor the child sought to be adopted are residents of this state. The trial court concluded that, under such circumstances, it had no jurisdiction and dismissed the adoption proceedings. Appellants, Martin J. and Sandra Gail Pollock, challenge the trial court’s decision here, arguing the lower court did have authority to grant their adoption of the infant child, Bradley. We hold the trial court was correct, and, therefore, affirm. The facts are undisputed. The Pollocks are residents of Marlboro, New Jersey. After having adopted one child, a daughter, Erica, from a private adoption agency in Pennsylvania, in 1983, the Pollocks decided that Erica should not be reared alone, so they looked to adopt another child. Because they were unable to obtain a second child from the agency they previously had employed, the Pollocks called some friends’ attorney who, in turn, had a Richard Gettleman telephone the Pollocks. Gettleman gave the Pollocks some names of people whom he helped with adoptions in the New York, New Jersey and Pennsylvania areas, and after calling and obtaining some good, as well as bad, stories from those references, the Pollocks opted to request Gettleman’s assistance in finding them a child to adopt. Gettleman subsequently arranged for such an adoption, which, he directed the Pollocks, was to take place in Malvern, Arkansas. The mother, Jenay, was (and is) a resident of the State of Washington, but she came to Malvern for the delivery of her child, Bradley. After Bradley’s birth, Jenay executed a consent for his adoption, and she then returned to Washington. The Pollocks then petitioned for both guardianship and the adoption of Bradley in Malvern, Hot Spring County, Arkansas, and the Hot Spring County Probate Court initially obliged the Pollocks by granting temporary orders in each proceeding. The court later extended the guardianship order, but dismissed the adoption proceeding, which led to this appeal. The Pollocks testified they understood Gettleman had arranged for this adoption to be consummated in Arkansas because of the legal difficulties to obtain adoptions in other jurisdictions more convenient to the parties. The Pollocks’ argument that the Arkansas court has jurisdiction to order the adoption is based primarily upon their interpretation of § 56-205(a). That provision provides that adoption proceedings must be brought in the court for the place in which, at the time of filing or granting the petition, the petitioner or the individual to be adopted resides or in which the agency having the care, custody or control of the minor is located. The Pollocks contend § 56-205(a) is not a jurisdictional requirement — as the trial judge held below — but rather only a venue requirement which the parties could, and did, willingly waive. Such an interpretation wholly ignores the intent of the framers of our Revised Uniform Adoption Act (RUAA). One need only refer to the Commissioner’s Note to § 4 [the same as our § 56-205(a)] of the RUAA which in relevant part reads: Jurisdiction is based on residence of either the person seeking to adopt the child or the residence of the child at the time of adoption. In the instant case, the Pollocks in no way contend that they, Bradley or Bradley’s mother have ever resided in Arkansas. To the contrary, the Pollocks specifically concede they reside in New Jersey and Bradley’s mother in Washington. As was adroitly pointed out by the trial judge, the parties’ only purpose for entering Arkansas was this adoption, and, afterwards, they most likely will have no reason to return to the state again. In adopting § 4 of the RUAA without variation as a part of Arkansas’s adoption law, the General Assembly’s intent, in view of the RUAA’s commissioner’s note, is clear that jurisdiction to obtain an adoption in Arkansas is based upon the residence of either the person seeking the adoption or the child sought to be adopted. The General Assembly’s intent in this respect is fortified further by noting the relevant and comparable provisions of the Uniform Adoption Act (UAA), which, if it had been enacted by the General Assembly, would have permitted the adoption of a child who was merely present in, and not a resident of, this state. See Uniform Adoption Act, § 4,U.L.A. (1957); seealso% 2 of the same Act (any child present within this state at the time the petition for adoption is filed, irrespective of birth or place of residence may be adopted). Even though the framers of the UAA provided no residency requirement for the adopted child as the basis of its adoption, they did restrict jurisdiction of the state to grant adoptions to where the petitioners, adoptive parents, reside. See Commissioner’s Note to Uniform Adoption Act § 4,9 U.L. A. 30 (1957). In so providing, the authors of the UAA, in their commissioner’s note, said: The reason for so limiting jurisdiction is to place the emphasis on getting the best parents for the child. It is believed that the courts of the state where the parents reside will be better able to judge the adoptive home and adoptive parents than a court in a state foreign to the new parents. In adopting the RUAA instead of the UAA, the Arkansas General Assembly allowed more flexibility in the state’s adoption procedure by not restricting Arkansas’s jurisdiction in such matters only to when and where the prospective or adoptive parents reside in this state. As we earlier noted, the state extended jurisdiction under § 56-205(a) to award an adoption also in situations when and where (1) the child to be adopted resides in Arkansas or (2) an agency in this state has the care, custody or control of the child. These two added situations to when this state obtains jurisdiction of adoption proceedings still insures — as does the UAA — our court’s opportunity to survey and judge the best interests and placement of the child to be adopted. At the same time, such jurisdictional requirements reflect the modern tendency for the state to seek greater assurance of protection to the child. To this effect, see generally R. Leflar, American Conflicts Law § 239 (1977). In this same vein, the trial judge in the instant case voiced concern over the prospects of when a child is born with a defect, left in this state and the biological mother and adoptive parents — residents of other states — abandon any further interest in the child or Arkansas adoption proceeding. Obviously, the General Assembly, in enacting § 56-205(a), widely has assured this state has a genuine interest or contact with at least one of the parties (adoptive parents, adopted child or local agency that has care and control of the child) involved before an adoption matter is filed or granted within its borders. Restricting the state’s jurisdiction to such instances, the General Assembly has placed our courts in a position to better ensure that the adopted child’s best interests are achieved. In conclusion, we note the Pollocks’ argument that, assuming the trial court had no jurisdiction, it had otherwise acquired jurisdiction when it appointed the Pollocks as temporary guardians of Bradley. Upon such appointment, the Pollocks reason, citing In re Adoption of Johnson, 399 Pa. 624, 161 A.2d 358 (1960), that Bradley became a ward of the court, and, therefore a domicile of Hot Spring County, Arkansas. The Pennsylvania case cited is clearly distinguishable from the situation at hand, since there the child was a resident of that state and the question was simply which county in the state could decree the adoption. In further response to the Pollocks’ second argument, we point out that the Pollocks failed to raise such a theory below, and, therefore, we are in no position to address it on appeal. Even had this point been raised below, a serious question exists, based upon the record before us, concerning whether the trial court’s temporary guardianship order was actually valid. See Ark. Stat. Ann. §§ 57-826 — 827 (Supp. 1985). Because we agree with the trial court’s holding it has no jurisdiction in this cause, we affirm. Holt, C.J., and Hays and Newbern, JJ., concur. Purtle, J., dissents. Footnotes [*] Purtle, J., would grant rehearing.