Cite as 2016 Ark. App. 123 

ARKANSAS COURT OF APPEALS

DIVISION III

No. CV-15-570

 

SUSAN HILL

 APPELLANT

V.

TABITHA MARSHALL POWELL

 APPELLEE

Opinion Delivered February 24, 2016

APPEAL FROM THE LONOKE COUNTY 

CIRCUIT COURT 

[NO. 43PR-14-300] 

HONORABLE JASON ASHLEY PARKER, 

JUDGE

AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Susan Hill appeals the order entered by the Lonoke County Circuit Court 

denying her petition to adopt her grandson, M.C.T. (d/o/b March 5, 2008). She contends that 

the circuit court clearly erred in finding that the consent of M.C.T.’s mother, appellee Tabitha 

Marshall Powell, was required. We cannot address the argument on appeal because Hill did 

not also appeal the circuit court’s finding that it was not in M.C.T.’s best interest to be adopted. 

Therefore, we affirm. 

M.C.T.’s parents, Powell and Christopher Tribe, were never married. Tribe’s paternity 

was established in an order entered by the Circuit Court of Jackson County, Mississippi, on 

January 23, 2012. In that order, the parties were awarded joint custody of M.C.T., and Tribe 

was ordered to pay monthly child support.

On September 18, 2012, Tribe filed a motion in the Circuit Court of White County, 

Arkansas, to register the Mississippi order and to modify child custody. On January 25, 2013, 
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2 

the White County Circuit Court entered an order finding that Arkansas was the home state of 

M.C.T. and had been since January 2012; that both Tribe and M.C.T. resided in White County, 

Arkansas; and that Powell resided in California. The order registered the Mississippi order and 

awarded custody of M.C.T. to Tribe with reasonable visitation to Powell; terminated Tribe’s 

child-support obligation; and ordered Powell to pay child support as of March 1, 2012. The 

circuit court also found that Powell’s boyfriend, “Tim,” was prohibited from having any 

contact with M.C.T. 

On July 16, 2013, Hill, Tribe’s mother and M.C.T.’s paternal grandmother, filed a 

petition in White County for the appointment of a permanent guardian of M.C.T. On 

September 18, 2013, the White County Circuit Court entered an order granting Hill’s petition, 

finding that Tribe had consented to Hill’s guardianship, Powell had been served with the 

petition, and she had failed to appear at the guardianship hearing.

Thereafter, on September 16, 2014, Hill filed a petition in the Lonoke County Circuit 

Court to adopt M.C.T. Hill alleged that she and M.C.T. were residents of Lonoke County, 

Tribe had consented to the adoption, and Powell’s consent was not required pursuant to 

Arkansas Code Annotated section 9-9-207(a)(2). Hill alternatively alleged that Powell’s 

parental rights should be terminated pursuant to section 9-9-220(c)(3) because her consent 

was unreasonably withheld contrary to the best interest of M.C.T. 

An adoption hearing before the Lonoke County Circuit Court was held February 15, 

2015. Powell testified that she opposed the petition, that her consent to the adoption should 

be required, and that it was not in M.C.T.’s best interest to be adopted. Powell stated that she 

and Timothy, now her husband, had moved to California in April 2012 in search of better 
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3 

jobs. She conceded that she did not visit M.C.T. from March 2012 to March 2013 and that she 

was not denied visitation during that time; however, she said that she kept in monthly contact 

with him via the telephone, that she sent child support to Tribe after the entry of the January 

2013 order directing her to do so, and that she sent M.C.T. clothes and gifts (birthday and 

Christmas) during that time. She added that she had recorded twenty-four phone 

conversations with M.C.T. that occurred between August 2013 and November 2014, and that 

she had visited M.C.T. in the summer of 2013, in March 2014, and in October 2014. Powell 

said that after Hill was appointed guardian, she (Powell) did not know to whom to pay child 

support, so she called and asked Hill about it. Hill told Powell that she was not obligated to 

pay Tribe and that Hill did not want child support. Finally, Powell testified that she filed a 

motion to terminate the guardianship in March 2014.1 

Hill testified that she had been the primary caregiver for M.C.T. since March 2012 and 

that Powell did not visit M.C.T. from March 2012 to March 2013. While Powell may have 

called once a month during that time, Hill testified that Powell never spoke to M.C.T. (Hill 

said that Powell called to complain to Hill about Tribe.) Hill stated that Powell asked to speak 

to M.C.T. one time between March 2012 and March 2013, and, on that occasion, M.C.T. ran 

from the phone. Hill stated that Powell did not send Christmas or birthday gifts to M.C.T. 

until March 2013. After March 2013, Hill testified that Powell had made up to two calls per 

 

1 The White County Circuit Court, on November 5, 2014, entered an order denying 

Powell’s motion to terminate the guardianship. The court found that Powell failed to prove 

that the guardianship was no longer necessary, citing evidence that Powell and Tribe were not 

able to provide appropriate homes for M.C.T.
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4 

month to M.C.T. and that he was happy to talk to his mother. Hill agreed that Powell had not 

abandoned M.C.T. because after March 2013, she called him, sent him gifts, and visited him. 

Hill also confirmed that she had received a call from Powell offering to pay child 

support. Hill testified that she called the child-support division and reported back to Powell 

that once she (Hill) had been appointed guardian, the child-support obligation ceased. She 

added that she told Powell to not worry about child support and that she did not expect Powell 

to pay it. Hill added, however, that while Powell was under no legal obligation to pay Hill 

support, all parents are obligated to support their children. 

Rebecca Eppinette, M.C.T.’s counselor, testified that she diagnosed him with 

disruptive-behavior disorder and mood-instability disorder. He initially presented with crying 

fits, anger outbursts, difficulty sleeping, and maintaining behaviors. He was socially isolated, 

struggled in school, and had general fear and anxiety. She testified that the root of M.C.T.’s 

issues was a sense of not being secure or safe. She said that M.C.T. felt safe around Hill but 

unsafe around Timothy Powell. Eppinette also stated that M.C.T. really missed his mother. 

On April 1, 2015, the Lonoke County Circuit Court entered an order denying Hill’s 

petition to adopt M.C.T. The court found that Powell did not lose her right to consent to the 

adoption under Arkansas Code Annotated section 9-9-207 because she had significant 

contacts with M.C.T. between the dates of March 2012 and March 2013 and she had paid 

support between those dates. The court also found that granting the adoption petition was 

not in M.C.T.’s best interest. Hill’s appeal followed.

In adoption proceedings, we review the record de novo, but we will not reverse the 

lower court’s decision unless it is clearly erroneous or against a preponderance of the evidence, 
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after giving due regard to its superior opportunity to determine the credibility of the witnesses. 

Hollis v. Hollis, 2015 Ark. App. 441, at 6, 468 S.W.3d 316, 320. We have said that in cases 

involving minor children a heavier burden is cast upon the court to utilize to the fullest extent 

all its power of perception in evaluating the witnesses, their testimony, and the children’s best 

interest; that the appellate court has no such opportunity; and that we know of no case in 

which the superior position, ability, and opportunity of the circuit court to observe the parties 

carry as great a weight as one involving minor children. Id., 468 S.W.3d at 320. When the issue 

is one of terminating parental rights, the appellate courts have referred to the “heavy burden” 

on the party seeking to terminate the relationship. Id. at 6–7, 468 S.W.3d at 320. Adoption 

proceedings are in derogation of the natural rights of parents, and statutes permitting such are 

to be construed in a light favoring continuation of the rights of natural parents. Id. at 7, 468 

S.W.3d at 320. 

Generally, consent to an adoption is required by the mother of the minor child to be 

adopted. Ark. Code Ann. § 9-9-206(a)(1) (Repl. 2015). Under certain circumstances, however, 

the consent of the mother may not be required. Arkansas Code Annotated section 9-9-

207(a)(2)(i) & (ii) provides that consent to adoption is not required of a parent of a child in 

the custody of another, if the parent for a period of at least one year has failed significantly 

without justifiable cause to communicate with the child or to provide for the care and support 

of the child as required by law or judicial decree. Additionally, 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. Hollis, 2015, Ark. App. 441, at 7, 468 S.W.3d at 320; see also

Ark. Code Ann. § 9-9-214(c) (providing that the circuit court can issue a final decree of 
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6 

adoption if, at the conclusion of the hearing, the court determines that the required consents 

have been obtained or excused and that the adoption is in the best interest of the individual 

to be adopted).

The circuit court’s order denying Hill’s petition for adoption found that Powell did not 

lose her right to consent to the adoption pursuant to section 9-9-207(a)(2)(i) & (ii) because 

Powell had significant contacts with M.C.T. between the dates of March 2012 and March 2013 

and she had paid support between those dates. The circuit court also found that granting the 

adoption petition was not in M.C.T.’s best interest. However, Hill’s appeal challenges only the 

former finding.2 She fails to challenge the circuit court’s finding that the adoption was not in 

M.C.T.’s best interest.3 The mere fact that a parent has forfeited her right to have her consent 

to an adoption required does not mean that the adoption must be granted—the court must 

further find from clear and convincing evidence that the adoption is in the best interest of the 

 2 Hill also argues on appeal that the circuit court erred in not finding that, pursuant to 

Arkansas Code Annotated section 9-9-220(c)(3), Powell’s consent was unreasonably withheld 

contrary to the best interest of M.C.T. However, because the circuit court did not make a 

ruling on this issue, it is not preserved for appeal. Lucas v. Jones, 2012 Ark. 365, at 9, 423 S.W.3d 

580, 585 (holding that when an appellant fails to obtain a specific ruling below, we do not 

consider that point on appeal).

3 While the heading of Hill’s brief on appeal states that she is appealing the circuit 

court’s best-interest finding, the body of her brief contains no argument on this point. In the 

absence of an argument on the circuit court’s best-interest finding, we consider the point 

waived. Daniel v. Spivey, 2012 Ark. 39, at 5 n.1, 386 S.W.3d 424, 427–28 (noting that listing an 

issue in the heading of an appellant’s argument on appeal is insufficient for the court to 

consider it an appellate argument when the issue is not further discussed in the “body” of the 

brief). And Hill’s challenge to the circuit court’s best-interest finding in her reply brief is too 

late. It is well settled that we will not address arguments raised for the first time in an 

appellant’s reply brief, because the appellee is not given a chance to rebut the argument. 

Coleman v. Regions Bank, 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005).
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child. Hollis, 2015 Ark. App. 441, at 7, 468 S.W.3d at 320. Therefore, we are left with an 

unchallenged basis for affirming the denial of the adoption petition. 

When the circuit court bases its decision on two independent grounds and appellant 

challenges only one on appeal, the appellate court will affirm without addressing either. 

Coleman, 364 Ark. at 64, 216 S.W.3d at 573. Consequently, Hill’s first argument cannot be 

examined because she did not challenge both independent grounds on which the circuit court 

relied in making its decision to deny her adoption petition. In re Adoption of I.C., 2014 Ark. 

App. 513, at 6–7 (holding that the issue of the withdrawal of the relinquishment of parental 

rights could not be addressed because the appellants failed to challenge the circuit court’s bestinterest finding—which was an independent basis supporting the denial of the appellants’ 

adoption petition). We thus must summarily affirm.

Affirmed. 

HOOFMAN and BROWN, JJ., agree. 

Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellee.