Richard Thomas Calvin, Jr. and Sharon Kay Calvin v. Missy Dawn Mungary

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

RICHARD THOMAS CALVIN, JR., and SHARON KAY CALVIN

APPELLANTS

V.

MISSY DAWN MUNGARY

APPELLEE

CA00-399

November 29, 2000

APPEAL FROM THE BENTON COUNTY PROBATE COURT

[NO. P-96-205]

HON. OLIVER LEE ADAMS, JR.,

PROBATE JUDGE

REVERSED AND REMANDED

The appellee in this adoption case is the mother of three children that appellants sought to adopt. Appellants filed a petition for adoption in May 1996, together with a valid consent to adoption whereby appellee stipulated that adoption by appellants would be in the children's best interest. The children were then transferred to appellants' custody, although formalities delayed entry of an interlocutory decree of adoption. Appellee withdrew her consent in December 1998, long after the time for unconditional withdrawal of consent had expired. Appellants then modified their petition, asserting that appellee's consent was not required because appellee had failed to support the children or have significant contact with them since the filing of the petition to adopt in May 1996. The probate judge found that

appellee had in fact failed to have significant contact with the children, but that this failure was excusable so that her consent to adoption was required. The petition for adoption was denied, and the children were returned to appellee's custody with the proviso that they would be placed in the custody of the Arkansas Department of Human Services if the mother committed additional violations of her prison probation. From that decision, comes this appeal.

For reversal, appellants contend that the probate judge clearly erred in finding that appellee's failure to maintain contact with the children was excusable. We agree, and we reverse.

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. Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1998). A party seeking to adopt a child without the consent of the natural parent bears the heavy burden of proving by clear and convincing evidence that the parent failed significantly and without justifiable cause to communicate with the child. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). We review probate proceedings de novo, and the decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Id.

We think that the probate judge clearly erred in the case at bar. Without reviewing all the testimony in detail, the record is sufficient to show that appellee is a felon, has beena habitual drug user, and had virtually no contact with the children after executing her consent to adopt other than one fifteen-minute visit while she was a fugitive from justice. Although appellee was incarcerated for part of this time, a parent is not completely relieved of her parental responsibilities while incarcerated and must use the resources at her command while in prison to continue a close relationship with the child. In re: Adoption of Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984). The probate judge apparently found that her failure to visit or support the children during this time was excused because appellee thought that the adoption had been finalized. We cannot conclude that this constitutes a valid excuse under the circumstances of this case. Appellee cannot be excused for her ignorance of the state of the adoption proceedings, a matter that should have been of momentous concern to her, especially if she changed her mind about her consent. Furthermore, appellee was in frequent contact with appellants, to whom she was related, and there was nothing to prevent her from talking to the children on the telephone, sending the children notes or letters, or giving the children small gifts on their birthdays and Christmas. On this record, we hold that the probate judge clearly erred in finding that there was justifiable cause for appellee's significant failure to communicate with or support the children.

We also question the probate judge's finding that it was in the children's best interest to be returned to their mother, who had failed to have any significant contact with them, failed to contribute to their support even while opposing the adoption, and who frankly stated that she planned to raise the children at her boyfriend's house, although she was stillmarried to another man, especially in light of the evidence that the children had thrived while in appellants' care. It appears that the probate judge's finding in this regard was based on an exaggerated view of the importance of preserving the natural family. Although this is a necessary and proper consideration, it is not an overriding one. Parental rights are not to be enforced to the detriment or destruction of the happiness and well-being of the child. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App. 1980). The rights of parents are not proprietary and are subject to the correlated duty to care for and protect their children, and the law secures the preferential rights of parents only so long as they discharge their obligations. Id.

We reverse with directions to restore custody to appellants and for a hearing limited to the question of whether adoption by the appellants would be in the children's best interest. See Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986). We direct the clerk to issue a mandate immediately.

Reversed and remanded.

Griffen and Roaf, JJ., agree.