Page:Canerday-Banks v. State, 2018 Ark. App. 523.pdf/18

 Here, the written consent form did not contain the necessary waiver information mandated by section 9-9-209(b)(3), nor had the statutorily required time period expired prior to the hearing. The Bankses cite section 9-9-209(b)(1), which states in relevant part that "[t]he court may waive the ten-day period for filing a withdrawal of consent for agencies as defined by section 9-9-202(5)" and frame the question on appeal as "whether the court had the authority to waive the 10-day period for DHS consent and whether such waiver activated the 5-day period." The Bankses argue that the circuit court should have waived the ten-day period and that the legislature did not intend for the alternative five-day waiting period to apply to agencies because "DHS is not subject to the emotional issues of relinquishing custody." The Bankses cite legislative history regarding DHS’s ability to withdraw consent, demonstrating that agencies were originally governed by the same consent provisions as parents but that in 1995, the legislature amended the statute to prevent DHS from ever being able to withdraw consent. However, in 2009, the legislature again amended the statute, this time allowing DHS to withdraw consent just as a parent can but also allowing for waiver pursuant to subsection 209(b)(1). The Bankses argue that this history indicates an intent to allow the court to entirely waive any waiting period for an agency like DHS.

The Bankses have cited no authority for this interpretation of subsection 209(b)(1), and we find their reasoning unpersuasive. A later subsection, 209(b)(3), mandates that "[t]he consent shall state that the person may waive the ten-day period for the withdrawal of consent for an adoption and elect to limit the maximum time for the withdrawal of consent for an adoption to five (5) days." On its face, this provision applies to all consents, including those executed by an agency such as DHS. It would be inconsistent for the phrase "waive