William R. Vier v. Tammy Vier (Hart) and David P. Hart

William R. VIER v. Tammy VIER (Hart) and
David P. Hart

CA 97-534                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                 Opinion delivered May 13, 1998


1.   Adoption -- heavy burden upon party seeking to adopt child without consent of natural
     parents. -- The 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 party
     failed significantly and without justifiable cause to
     communicate with the child.

2.   Appeal & error -- probate proceedings -- standard of review. -- The appellate
     court reviews probate proceedings de novo; 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.

3.   Parent & child -- cases involving small child's welfare -- weight accorded trial
     judge's observations. -- The personal observations of the trial judge
     are entitled to even more weight in cases involving the
     welfare of a small child.

4.   Adoption -- appellee met burden of proving that appellant failed significantly and
     without justifiable cause to communicate with daughter. -- Giving due regard to
     the trial court's assessment of the credibility of the
     witnesses, the appellate court found the trial court's
     decision that appellees had met their burden of proving by
     clear and convincing evidence that appellant failed
     significantly and without justifiable cause to communicate
     with his daughter was not clearly erroneous.

5.   Adoption -- probate judge did not err in finding appellant unjustifiably failed to
     maintain contact with daughter. -- Where there was evidence that, other
     than placing six one-minute telephone calls to appellee's
     place of business and attempting to write appellee a letter,
     appellant made no attempt to contact or visit his daughter for
     a period of more than one year; where it was undisputed that
     he did not return to the county in which his daughter resided
     until after an adoption action was brought; and where appellee
     and her husband testified that they did not prevent appellant
     from visiting the child, the appellate court could not find
     error with the probate judge's finding that appellant
     unjustifiably failed to maintain contact with his daughter.

6.   Adoption -- parent's failure to seek enforcement of visitation rights -- factor to be
     considered. -- It was significant that appellant never attempted
     to effect his visitation through legal intervention and never
     apprised the trial court of any alleged interference with his
     visitation rights until nineteen months after his last visit
     with his daughter; for purposes of determining whether a
     parent willfully deserted his child or intended to maintain
     his or her parental role, the trial court may consider as a
     factor the parent's failure to seek enforcement of his or her
     visitation rights during the relevant one-year period.

7.   Appeal & error -- argument unsupported by authority or convincing argument. --
     Regarding appellant's contention that his parental rights were
     not waived because any visitation would not have been
     meaningful due to his anonymity and the child's young age, the
     appellate court observed that the pertinent statute did not
     contemplate such an exception and that the argument was
     unsupported by any authority or convincing argument.


     Appeal from Faulkner Probate Court, Second Division; Karen
Baker, Judge; affirmed.
     Josh E. McHughes, for appellant.
     Kenneth G. Fuchs, for appellee.

     John B. Robbins, Chief Judge. 
     Appellant William R. Vier and appellee Tammy Vier (now Hart)
were married on December 23, 1983.  Although they separated in
October 1991, their child, Jessica Vier, was born on March 20,
1992.  The parties divorced on March 31, 1992, and the divorce
decree provided that Mrs. Hart was to have custody of the child. 
Mr. Vier was given liberal visitation, but limited to the presence
of either Mrs. Hart or Mr. Vier's parents.  Mr. Vier visited with
Jessica on several occasions, but it is undisputed that his last
visit occurred on February 13, 1993.
     On July 18, 1994, Mrs. Hart and her current husband, David P.
Hart, filed a petition for adoption in the Faulkner County Probate
Court.  In the petition, it was alleged that Jessica had had no
contact with her natural father for more than one year, and that
she had been reared by the petitioners since the time of her birth. 
Mr. Vier contested the adoption, contending that he had failed to
visit Jessica only because the appellees had prohibited him from
doing so.  In addition, Mr. Vier filed a motion for visitation on
November 29, 1994, in which he requested that the chancery court
enter an order establishing his entitlement to specific visitation
with the child.  After hearings were conducted before the chancery
and probate courts on these pleadings, the probate court granted
the appellee's petition for adoption, finding that Mr. Vier failed
without justifiable cause to have any meaningful contact with
Jessica since February 1993, and that adoption by Mr. Hart was
in the child's best interest.  Mr. Vier now appeals this ruling,
arguing that the probate court erred in finding that he failed to
maintain meaningful contact with Jessica and that such failure was
without justifiable cause.  We affirm.
     Mrs. Hart testified at the hearings and expressed her desire
that Mr. Hart adopt Jessica.  Mrs. Hart indicated that Mr. Vier
moved to Louisiana after they separated and that she has continued
to reside in Mayflower, Arkansas, with Mr. Hart, Jessica, and
a child that was born of her current marriage.  According to
Mrs. Hart, Mr. Vier visited Jessica fairly regularly until February
13, 1993.  Then, in March 1993, when he came to Mayflower for
visitation, he was arrested for failing to pay child support. 
Mr. Vier did not see Jessica on that occasion, and had not returned
to Mayflower prior to the institution of these proceedings. 
Mrs. Hart acknowledged that, since the March 1993 incident,
Mr. Vier has stayed current on his child-support obligation. 
However, she asserted that his parental rights should be terminated
because "he [Mr. Hart] is the only father she [Jessica] has known." 
With regard to Mr. Vier's efforts to visit with Jessica, Mrs. Hart
testified that, "I have done nothing to prevent Bill Vier from
visiting or seeing his child."  Mrs. Hart stated that she is a
veterinarian and her husband is the Mayflower Chief of Police, and
asserted that they are financially able to support both of her
children.
     Mr. Hart testified that he frequently spends time with
Jessica and wants to adopt her because he has raised her since
she was seven months old.  He further testified that he has never
discouraged visitation between Jessica and Mr. Vier.
     Mr. Vier testified that he has remarried, and that for the
past three years he has lived with his wife in Ventress, Louisiana. 
He acknowledged that he has not seen Jessica since February 1993,
but indicated that he had repeatedly tried to do so, but his
efforts were thwarted by Mrs. Hart.  Mr. Vier testified that he
did not know Mrs. Hart's home phone number because it was unlisted,
but that he attempted to contact her on a monthly basis at her
veterinary clinic.  Mr. Vier insisted that on each occasion he
would leave a message asking Mrs. Hart to return his call and set
up a time for visitation, but that Mrs. Hart never returned any of
his calls.  In her testimony, Mrs. Hart acknowledged that phone
records revealed that Mr. Vier called the clinic for one minute
each in March, September, October, November, and December 1993,
and also in January 1994.  However, she testified that she rarely
answers the telephone at the clinic, and that she never instructed
anyone to hang up on him or be uncooperative.  Indeed, two of her
employees, who were responsible for answering the telephone, could
not recall receiving any calls from Mr. Vier.  Mrs. Hart asserted
that she never received any messages or had any other contact with
Mr. Vier during this time frame, and surmised that Mr. Vier must
have been calling and hanging up.
     Mr. Vier also testified that, in the spring of 1994, he sent
Mrs. Hart a letter and asked her to call him, but that she failed
to do so.  However, Mrs. Hart denied receiving such a letter. 
Mr. Vier acknowledged that, despite his repeated failed efforts to
set up visitation with Jessica, he never had Mrs. Hart cited for
contempt, nor did he take any other legal action until after he was
served with the petition for adoption.  However, he explained that
although he had planned to take legal action earlier he did not
have enough money to hire a lawyer.
     For reversal in this case, Mr. Vier asserts that the probate
court erred in ordering Jessica's adoption.  Arkansas Code
Annotated section 9-9-207(a)(2) (Repl. 1993) provides:
       (a)  Consent to adoption is not required of:
       (2)  A parent of a child in the custody of another,
     if the parent for a period of at least one (1) year has
     failed significantly without justifiable cause (i) to
     communicate with the child or (ii) to provide for the
     care and support of the child as required by law or
     judicial decree[.]
Mr. Vier does not dispute that he failed to communicate with
Jessica for more than one year.  However, he notes that "failed
significantly" means a failure that is "meaningful or important,"
see Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983), and
submits that his failure to communicate was not significant because
any communication would not have been meaningful to the young child
because of her age and the fact that the only father figure that
she knew was Mr. Hart.  Mr. Vier further argues that the probate
court erred in finding that his failure to visit was without
justifiable cause, and notes that parental rights should not be
terminated unless the lack of visitation was willful in the sense
of being voluntary and intentional.  See Taylor v. Hill, supra. 
Mr. Vier contends that he justifiably failed to visit Jessica
because he repeatedly attempted to contact Mrs. Hart but was unable
to do so, and because he was afraid to enter Faulkner County for
fear of getting arrested.  He points out that, in the past few
years, he had twice been arrested in Faulkner County for allegedly
writing hot checks, and his wife had been arrested once.  The last
time Mr. Vier presented for visitation in March 1993, he drove a
long distance, was arrested, and was never able to see the child.
     We have held that the 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 party failed
significantly and without justifiable cause to communicate with the
child.  Taylor v. Hill, supra.  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.  Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).  We have stated that the personal observations of the
trial judge are entitled to even more weight in cases involving the
welfare of a small child.  In the matter of adoption of Titsworth,
11 Ark. App. 197, 669 S.W.2d 8 (1984).  In the instant case, giving
due regard to the trial court's assessment of the credibility of
the witnesses, we find its decision that the appellees met their
burden by clear and convincing evidence was not clearly erroneous.
     From March 1993 until appellees filed their petition for
adoption on July 18, 1994, there was evidence that Mr. Vier placed
six one-minute telephone calls to Mrs. Hart's veterinary clinic. 
There was also some evidence that he attempted to write her a
letter in the spring of 1994, but the trial judge was entitled to
believe Mrs. Hart's statement that the letter was never received. 
Other than these efforts, Mr. Vier made no attempt to contact or
visit his daughter.  It is undisputed that he did not return to
Faulkner County until after the adoption action was brought in July
1994.  Mrs. Hart and Mr. Hart both testified that they did not
prevent Mr. Vier from visiting the child.  On these facts, we
cannot find error with the probate judge's finding that Mr. Vier
unjustifiably failed to maintain contact with Jessica.  It is
significant that Mr. Vier never attempted to effect his visitation
through legal intervention, and he never apprised the trial court
of any alleged interference with his visitation rights until
nineteen months after his last visit with Jessica.  It has been
held that, for purposes of determining whether a parent willfully
deserted his child or intended to maintain his or her parental
role, the trial court may consider as a factor the parent's failure
to seek enforcement of his or her visitation rights during the
relevant one-year period.  See Mead v. Roberts, 702 P.2d 1134 (Or.
App. 1985).  As for Mr. Vier's contention that his parental rights
were not waived because any visitation would not have been
meaningful due to his anonymity and the child's young age, suffice
it to say that the pertinent statute did not contemplate such an
exception and this argument is unsupported by any authority or
convincing argument.  See Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994).
     Affirmed.
     Bird and Roaf, JJ., agree.