*1
J.,
Corbin,
dissent.
joins
M.
v. Freddie
Hare BEMIS
T. BEMIS and Debra
Ralph
HARE
En Banc 5, 1986 November delivered Opinion *3 Walls, Firm, P.A., Charles A. Jr. and J. by: Law Walls Stuart, for Michael appellants. Hale, Ward,
Hale, Green & Milas H. Morley, by: Young, appellee. for Judge. L. Bemis Corbin, T. Appellants, Ralph
Donald Bemis, ruling Debra a the Probate Court of Hare appeal by child, Lonoke their for of a County denying petition adoption Hare, 12, David who was born the of age during marriage Paul M. We Hare Bemis to Freddie Hare. appellant appellee, Debra reverse and remand. 1983, evidence was that from October to the undisputed
The time of no the by trial was natural father. support paid appellee, Force, in he who is the Air testified that Appellee, voluntarily chose the and discontinued his military not to child allotment. also that did not dependent appellee It was undisputed visit nor communicate with the child in manner from October any However, of in hearing of 1983 to the time the of 1986. February the trial court ruled had to do justifiable that cause not so, and denied for appellants’ petition adoption. in argue (1) the court erred
Appellants appeal holding (2) consent to the adoption required; appellee’s court in it would be best of the finding erred in the interest (3) child the court erred petition; allowing deny and, (4) of inadmissible settlement testimony negotiations; child over court abused its discretion questioning appel- objection. lants’ 1985) 56-206 (Supp.
Ark. Stat. Ann. provides § must consent to an for it to generally the natural parents adoption in 56-207(a)(2) 1985) be valid. are set forth Exceptions (Supp. § which as follows: provides
(a) (2) Consent is not of parent of: a adoption required another, of in the if the for a custody parent period at least one [1] year has failed significantly justifiable (i) (ii) cause communicate with child or provide the care of the child as required by decree; law judicial
It well settled that statutory provisions involving
of minors are
construed and
Roberts
strictly
applied.
Swim,
v.
(Ark.
268 Ark.
Evidence a by credible witness whose of the facts memory *4 about which he testifies is distinct and whose narration of the details thereof is exact and due order and whose clear, direct, is so testimony weighty and convincing as to enable the conviction, fact finder to come to a clear of the hesitancy, truth of the facts related is and clear . convincing. . . This of measure proof lies somewhere between a preponderance of the and evidence proof beyond a reasonable doubt.. . . It is simply that of degree proof which will in the trier of fact a produce firm conviction as to the allegation to sought be established. 865, 870, v. Kelly, 672, 264
Kelly Ark. 575 S.W.2d 675-676 (1979) (citations omitted). “Failed not mean significantly” does “failed totally” but the be significant failure must a one as contrasted with an one. insignificant It denotes a failure that is
202 that the cause” means “Justifiable meaningful important. of being voluntary be willful in the sense failure must significant intentional; the acted parent arbitrarily it appear must and Money, Henson v. 1 excuse. cause or adequate without just 203, S.W.2d 97, 123, 273 Ark. 617 aff'd, 613 S.W.2d App. Ark. (1981). 367 516, 78 606 S.W.2d v. Ark. Dudgeon,
In Watkins the dismissal of court of reversed 1980), the (Ark. App. appeals the natural holding for In adoption. the appellants’ petition circumstances, under we was not the required father’s consent stated: of statute Stat.
The obvious the purpose applicable [Ark. real father is to a child a provide Ann. § 56-207] conduct, who, be a his has to by proven instead of one cannot force legislature blood only. Although father by meaning be proper a man to a father within term, whereby method a judicial it can and has afforded a to the benefits of have an may opportunity experience real Our statute having by permits a father adoption. courts, them- present where the circumstances proper selves, to who petitioners to grant petition love, child, care for a demonstrate affection and true dissent natural father. regardless arbitrary by 521, omitted). (citations at S.W.2d at 81 Id. de we novo probate proceedings
While review record, will judge it is well settled that the decision of the probate (clearly not be disturbed erroneous against unless clearly evidence), regard of the due preponderance giving opportu of the judge judge trial nity superior position credibility 52(a); supra. of the witnesses. ARCP Rule Henson Money, had Debra appellant David been awarded Custody Bemis and was ordered the divorce decree dated June appellee by $100 month for David’s per support. Appellant Debra Bemis and involved in were subsequently litiga- arrearages tion over David in reference to child with visitation. was ordered increase his problems Appellee *5 $150 arrearages child and the month support payments per were reduced to him. of counsel for judgments against Argument arrearages totalling for judgments reflects that the appellants $10,000 hearing of were at the time of the excess unsatisfied of February 1986. his and testified that he wanted to child
Appellee acknowledged would see him He regular that he like to on a basis. his that willing love his son and indicated he was place on During his cross-examina- military again. allotment tion, son admitted that he had made no effort to see his appellee 1983; since October of he missed visitation with scheduled his and he son could not remember if had notified Debra appellant visitation; Bemis that he would not be exercising his and that he a given had not his son Christmas since 1982 nor he present had called David or done for David on his as of anything birthdays 1982. his Appellee son seemed to acknowledged good receive care from and that he was a to be of. appellants proud Appellee questioned the court in to his by regard voluntary of allotment and suspension stated that he took that payments action because was it harder to getting get David. Appellee testified that each time he went home to appellants’ pick up David, appellant Debra Bemis had David his ready go and suitcase packed. stated that on Appellee one occasion he had physically pick David who was up, and screaming kicking, put David the truck. noted that lot of Appellee times David run would from However, while still in appellee the house. appellee testified that unequivocally Debra Bemis appellant never physically his exercise of prevented visitation with David. Debra Bemis
Appellant testified that David was two of years age at time her divorce from She married appellee. 16,1976. appellant Bemis June Ralph She stated that appellee had not made regular visits David since 1981. She would have David each time and on ready occasions many would not show up. Appellant Debra Bemis acknowledged there had never been any birthday or Christmas cards Christmas sent to presents David She by appellee. described the her relationship between husband and David as that of a father and son. did lot of They together were things very happy.
Appellant Bemis Ralph testified that he had lived with David since he was two and had years age enjoyed relationship father son with him since that time. He was a *6 fishing hunting, and enjoyed leader of David’s troop Scout Boy aged daughters, had two other with Appellants and David. sports able to six, he was financially in He stated and their home. three David. support and her grandson she loved mother testified that
Appellee’s filed and husband had him. stated that she her wanted to visit She times. Mrs. with David several rights seeking visitation petitions those exercising in she was unsuccessful Hare testified that in took events which place She described the rights. visitation her to exercise times she during attempted home appellants’ She was a “scene”. always stated there visitation with David. She would Mrs. Debra Bemis tell would David appellant ask for would ask David Mrs. Hare Hare David was in the house. She her husband had her. go and David would refuse with since not visited with David 1983. in order his findings made judge specific
The probate his are following denying adoption appellants’ petition failure to which are to the issue of findings appellee’s pertinent in of one year: with David excess or communicate support Hare, Max has (5) The Freddie respondent, nor for over one year, visited the child paid however, was Court believes in case action of A.S.A. 56-207. justified within the meaning witnesses, it is view of the (6) From the Court’s possible Debra S. Bemis did everything believed that father, Mr. avoid from natural collecting support Hare, Mr. was led effect an That Hare order to adoption. was since he to believe that he should not pay support child, greatly visitation with the unable have Mr. Hare’s testimony him. The Court upsetting accepts this regard. record, our de novo review the we must
Upon failure judge’s finding appellee’s conclude the probate In Henson v. erroneous. justified clearly David is Court, granting the Arkansas Money, Supreme supra, father, over objection duty stated “[t]he of the custodial duty independent visitation, by to allow both be enforced the courts.” parent may as *7 Green, 868, In v. Ark. S.W.2d 41 Id. at 207. Green 232 341 (1960), recognized the court that the father’s to supreme duty support his minor child cannot be excused on the basis of the others, conduct of unless that conduct him from prevents per- forming McKee, 18, his See also Pender v. 266 Ark. 582 duty. Johnson, S.W.2d (1979); 929 Brown v. 10 Ark. 661 App. (1983). S.W.2d 443 The probate judge undoubtedly overlooked the above law in had principles determining appellee justifiable cause to not David. There was no evidence to support competent show that appellants’ conduct precluded from appellee making his support There was payments. no evidence that was appellee financially unable to meet his obligation the record clearly reflects that appellee chose not to the voluntarily pay The support. probate judge in concluded his findings that Debra appellant Bemis “did to everything possible avoid collecting support... order to an effect Her adoption.” as well testimony, as witnesses, of all the testimony does this support conclusion. She testified that she had been to court twelve approximately times since her divorce from Her reasons for not appellee. having pursued recourse any against for child appellee since support March of 1984 as were follows: she did (1) not feel one should child; have to make a (2) father his support if the father did not it, it; want to do you can’t make him do it was (3) not worth staying court and going through (4) man expense; any who loved his child would not have be to made child pay support. case,
Under circumstances it made simply no difference if appellee believed interfered his appellants with ability observevisitation with David or not. has a Appellee duty and obligation to David whether ordered to so support do aby McKee, court or not. See v. Pender The supra. probate judge also determined that was appellee led to believe that he by appellants did not have to since he was pay support unable to have visitation with David and the court appellee’s accepted testimony regard. The evidence in this case illustrates clearly beginning 1, 1976, unjustifi- on June time of the divorce child. Appellee to his obligations his failed to meet
ably support three-year period David in the his failure to contends justifiable hearing adoption petition on the preceding Debra Bemis he and alleges appellant of an he agreement because also This support. obligation into his excusing entered obligation of his duty did not relieve appellee David. Neil, 661 S.W.2d 10 Ark. App.
In Dangelo consent of ruling judge’s we affirmed the (1983), probate her son by for the required mother was not natural had no communication The natural mother had the appellees. the care and no contribution toward and had made significant was evidence year. of her son in of one There excess believe no contribu- gave the natural appellees mother cause stated, however, “Whether from We tion was her. expected from appellant contributions appellees expected requested *8 to parent obligation support factor. has the determining not the A is Ann. 57- child, and no Stat. necessary. a minor Ark. request § 122, 1971).” Id. at 450. 633 at S.W.2d (Repl. 661 was an to Appellee’s failing action We find that without cause excuse. arbitrary just adequate act convincing evidence that proved by appellee clear appellants to for the significantly provide failed and without cause justifiable adoption care and of David. consent the Appellee’s therefore required. not of whether
A closer the issue question presented by failed without cause commu- justifiable significantly In view of year. nicate with David for a of more than one period our holding significantly on the issue of failure appellee’s David, we cause need not decide this justifiable have raised in appellants nor the other which question arguments their appeal. grant
A
court
for
probate
may
petition
adoption
it
of
the
hearing
required
if determines at
conclusion
the
the
is in
have been obtained or
and that
adoption
consents
excused
of
to be
Ark. Stat.
adopted.
best interest
the child or individual
Dixon,
128,
Ann.
Dixon v.
286 Ark.
56-214(c) (Supp. 1985);
§
100,
Howard,
v.
271 Ark.
607
(1985);
207
(1980).
S.W.2d 369
In the case at bar the
of the probate
order
does not address
appellants’ petition
adoption
for
judge denying
it is in the best interest of David
be
the issue whether
adopted.
logical
It is
for this court to assume that
only
probate
judge did not consider this
view of his determination
question
consent was
We stated in McKee v.
appellee’s
necessary.
Bates,
10
if
Ark.
S.W.2d 415
the trial
App.
(1983),
determines a
unnecessary,
court
consent is
such a
parent’s
finding
does not
that the
require
granted.
be
Before an
adoption
adoption
be
petition
may
granted,
judge must find that the
probate
is in
the best interest of
child.
Shemley
See also
v.
Montezuma,
337,
Reversed and remanded.
Cracraft, C.J., Cloninger, J., Wright, Judge, Special . join the majority.
Cooper JJ., Mayfield, dissent. Mayfield, dissenting. doI
Melvin
Judge,
agree that
judge’s
trial
decision in this case should be reversed. The rules
by which we review the trial judge’s decision were clearly set out
in our
Hill,
Taylor
case
Ark.
Ark. Stat. Ann.
56-207 has been the subject of a
§
*9
of
number
recent opinions of the
courts
appellate
of this
state from which the
principles
issues of this
governing
appeal have been established. Statutory
involv-
provisions
ing the
of
are
minors
and
strictly construed
Swim,
applied.
917,
Roberts v.
268 Ark.
597
840
S.W.2d
(Ark. App. 1980). The party seeking to
a child
adopt
without the consent of a natural parent bears the heavy
of
burden
proving by clear and convincing evidence that
the parents have failed
justifiable
and
significantly
without
cause to
communicate
the child or to
for its
provide
care and
the prescribed period.
v.
Harper
Caskin,
558,
265 Ark.
(1979).
“Clear and of facts whose memory of witness evidence a credible whose narration of is distinct and about which he testified as clear, direct, convincing weighty, is and the details so conviction, to come to a clear the finder of fact enable facts related. This truth of the hesitancy, of the a between preponderance measure of lies somewhere proof is doubt. It and reasonable beyond of the evidence proof will the trier of which degree proof produce simply be allegation sought fact a firm conviction as of 865, S.W.2d 672 264 Ark. 575 Kelly Kelly, established. v. does not mean “failed to- “Failed (1979). significantly” one as con- must be a significant but the failure tally” one. It denotes a failure that trasted with an insignificant cause” means that meaningful important. “Justifiable being be willful in the sense of significant failure must intentional; it that the parent must voluntary appear cause or arbitrarily just adequate acted and without 97,613 1 Ark. S.W.2d 123 Money, App. excuse. Hensonv. 203,617 273 Ark. S.W.2d 367 (1981) on appeal [affirmed McKee, 18, S.W.2d 929 v. 266 Ark. 582 (1981)]; Pender (1979). on de novo
While we review probate proceedings
record,
judge
it is well
that the decision a probate
settled
erroneous, giving
will
be
unless
due
clearly
disturbed
of the trial
regard to the
opportunity
superior position
ARCP Rule
credibility
of witnesses.
judge
judge
82,
v.
644
52(a); Chrisos
Ark.
S.W.2d
Egleston,
App.
v.
(1983);
Money,
Henson
Personal observa-
supra.
weight
entitled to even more
in cases
judge
tions
are
Wilson,
the welfare of a small child. Wilson
involving
789,
(1958).
228 Ark.
I allotment stopped my because payments it was getting harder and harder get to David. Everytime I would go over there she’d have him She would have his ready. suitcase but he wouldn’t be ready go. to One time I had to him pick just up kicking screaming put him the truck and take him with us. A lot of times he would run in the house and I wouldn’t him I get out. wouldn’t want to go in there after him. It just would seem like it wasn’t going She had made anywhere. this offer several times to me. The same offer that is on that paper.
THE COURT: What paper?
A. On the —the letter there that Mr. sent me. Craig Well, THE COURT: tell me what the offer was. A. She said if I quit seeing my son that I wouldn’t have support. THE COURT: When did that start?
A. Several years ago. Almost from the first. THE COURT: What was and her yours relationship on these times you when were attempting to exchange child?
A. Mine and hers?
THE COURT: Yeah. A. They were I peaceful enough, I didn’t guess. have—it wasn’t her gave me the trouble. Not directly. *11 to talked, got ready fine until I was everything
We when all the trouble And that’s and take David. leave try physically every you She didn’t would start. know— — get to me, try mentally you but she stop to know— never— either. go him to ready abstract, 24-25. pages Appellants’ evidence, from there was evidence to In addition the above grandson. her not allowed to see mother that she was Freddie’s but said rights visitation allowing order She obtained a court even there right because exercise that successfully not able to she was him, Debra get went to the house to When she was scene. usually “I not am say, is in and David would would “He there” say, visit him in 1983. going.” stopped trying She evidence, then 12 boy, talked The court heard all the old, chambers, in court: open in and then stated years I under advisement. am
I to take this case going am statement, in Court basically, make this one going to more thought a child that I I have never seen today. is what to It say. very upsetting, coaxed and prepped with that child to see what has occurred my opinion, that’s all his father. And how he has been turned against now. right I’m going say order, findings: following pertinent In made the judge his Hare, has not Freddie Max
(5) The respondent, one year, nor for over visited the child paid however, the action was the Court believes in this case 56-207. meaning within the A.S.A. justified witnesses, it From the Court’s view of (6) did everything possible believed S. Bemis that Debra father, Mr. from the natural collecting avoid Hare, That Mr. Hare was led to effect an adoption. order he was not since to believe that he should child, greatly with the unable to have visitation testimony accepts him. The Court Mr. Hare’s upsetting this regard. of the twelve
(7) year That the Court’s examination Hare, child, The old David was most important. Paul has done Court believes that Debra Bemis everything this) to turn possible, (although may recognize she not child from his father. That the child was his taught hate father, he was unable to that dislike. although explain Although jurisdiction, within this Court’s the Court is certain that of the unjustified because child’s attitude *12 father, towards the will visitation be almost impossible so, number of will be years. This if the particularly mother continues to the child’s thought relating to control his father.
(8) The Court the accepts of the father testimony it was to visit impossible the child without greatly upsetting him.
(9)That the petition for should be and is hereby denied. that, Hill,
Considering under Taylor one supra, seeking to a child adopt without the consent of a natural parent bears “the burden of heavy proving by clear and convincing evidence” that the natural parent has failed justifiable without significantly to cause communicate with the child or to for its provide care and support for the prescribed that in period; order for the failure to or support communicate be significant, it must appear that the parent acted arbitrarily “and just without cause or adequate excuse”; and that we are not to disturb the decision of the trial judge erroneous, unless it is clearly giving due regard to his superior position to the judge witnesses, credibility of the it is clear to me that we should affirm the trial judge’s decision in case.
The opinion majority lays great stress the upon fact that the appellee has paid the child ordered support court. by However, as the statute provides, the right without adopt consent of a natural is allowed parent where the failure is only without justifiable cause-—or as the case law provides, Here, “just cause adequate excuse, excuse.” the appellee’s court, accepted by was the problem visitation. While both mother did not concede that the boy’s and his mother father there is clear evidence rights, by boy’s visitation refuse no have mother made boy’s attempt grandmother Thus, the father mentally ready for their visitation. the boy making support payments. stopped exhibit, failure shows that the abstracted by appellants, An by different occasions eight was raised to allow visitation noted that specifically in the court. The judge motions filed trial no real to collect the mother had made effort in court staying that it was not worth She even testified payments. not have and that should “you to enforce support payments try reason for this make father his child.” The real to attitude, submit, who was in the same I is that the stepfather, the boy’s with the father and who married military boy’s unit divorced, able, mother were mother 15 after the father and days testified, and, therefore, have been they the boy as he to support if visiting content father’s he would forget stop fact, such an agreement In is evidence to the effect that boy. there None of this the debt forgives was made between the parties. *13 view, does, in the trial is owed for but it my past support, adoption. court’s decision to deny petition joins am to state Judge Cooper I authorized dissent. v. Bob BOARD
ALCOHOLIC BEVERAGE CONTROL LIQUOR L. HICKS BOB’S STORE d/b/a CA 85-485 718 S.W.2d of Arkansas Court Appeals
Division I 5, delivered November Opinion [Rehearing denied December 1986.]