Page:Canerday-Banks v. State, 2018 Ark. App. 523.pdf/23

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Instead, the Bankses claim that withholding consent was reasonable in light of the maltreatment allegations against the Bartons, and that is the issue on which the dissenting judges base their analysis. The issue must be addressed in two parts: (1) whether DHS included the allegations of maltreatment as one of the "written reasons for withholding consent" pursuant to section 9-9-207(a)(8), and if so, (2) whether the circuit court's determination that DHS unreasonably withheld consent was clearly erroneous.

As to the first question, there is no basis in the record for concluding that DHS presented the maltreatment allegations as one of its reasons for withholding consent. The May 15 letter did not include mention of the allegations, nor could it, as the decision to deny consent was issued before the allegations arose. The August 11 letter does not constitute a "reason for withholding consent" to the Bartons' adoption under any common-sense reading of that phrase.^[1] Unlike the May 15 letter, which clearly refers to the Pope County

↑ It is also important to note that the Bankses do not argue in their appellant's brief that the August 11 letter qualifies as a "written reason for withholding consent." Instead, they completely ignore the statute's writing requirement and erroneously rely on Lewis v. Arkansas Department of Human Services, 2012 Ark. App. 347, for the proposition that "where there is justifiable cause for withholding the consent, there can be no finding by the court that DHS is unreasonably withholding consent." Lewis stands for no such rule; in fact, when discussing whether DHS had unreasonably withheld consent to the Lewises' adoption petition, we noted that "[t]here was no evidence that appellants sought DHS’s consent." Id. We affirmed the circuit court’s dismissal of the Lewises' adoption petition on numerous grounds, including their failure to file necessary documents, the court's finding that adoption was not in the child's best interest, and its finding that DHS did not unreasonably withhold consent. Lewis does not purport to override the statutory requirement that the circuit court must evaluate DHS's written reasons for withholding consent, nor could it.

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[1] It is also important to note that the Bankses do not argue in their appellant's brief that the August 11 letter qualifies as a "written reason for withholding consent." Instead, they completely ignore the statute's writing requirement and erroneously rely on Lewis v. Arkansas Department of Human Services, 2012 Ark. App. 347, for the proposition that "where there is justifiable cause for withholding the consent, there can be no finding by the court that DHS is unreasonably withholding consent." Lewis stands for no such rule; in fact, when discussing whether DHS had unreasonably withheld consent to the Lewises' adoption petition, we noted that "[t]here was no evidence that appellants sought DHS’s consent." Id. We affirmed the circuit court’s dismissal of the Lewises' adoption petition on numerous grounds, including their failure to file necessary documents, the court's finding that adoption was not in the child's best interest, and its finding that DHS did not unreasonably withhold consent. Lewis does not purport to override the statutory requirement that the circuit court must evaluate DHS's written reasons for withholding consent, nor could it.

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