Pamela Ann Wilson v. Kimberly Spencer

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

MARGARET MEADS, JUDGE

DIVISION II

PAMELA ANN WILSON

APPELLANT

V.

KIMBERLY SPENCER

APPELLEE

CA00-146

October 18, 2000

APPEAL FROM THE WASHINGTON COUNTY PROBATE COURT

[NO. P99-106]

HON. JOHN LINEBERGER,

PROBATE JUDGE

AFFIRMED

Pamela Ann Wilson appeals from the order of the probate court that denied her petition to adopt her step-daughter, Racheal M. Wilson. Appellee, Kimberly Spencer, is Racheal's natural mother.

Appellee and Gillette Wilson were married on May 4, 1985, and divorced on June 23, 1986. Gillette was given custody of Racheal, who was born on September 8, 1985. Appellee was granted reasonable rights of visitation. No child support was ordered. Gillette remarried on August 5, 1990; this marriage also ended in divorce. On July 1, 1998, Gillette married appellant. On March 9, 1999, appellant filed a petition for adoption, alleging that appellee's consent was not required because she failed for a period of at least one year without justifiable cause to either communicate with or to provide for Racheal's care and

support. The trial court found that it was not in Racheal's best interest to be adopted and dismissed appellant's petition for adoption.

The evidence indicated that appellee is disabled, has been on disability since 1992 due to bi-polar and multiple personality disorder, and has not seen Racheal for ten years. Racheal has received $143 per month in Social Security benefits since appellee went on disability; prior to that time appellee worked at a telemarketing firm but did not pay child support. The only attempt that appellee made to contact Racheal in the past thirteen years occurred when she gave her mother, Diana Spencer, a birthday gift for Racheal. However, when Ms. Spencer approached Gillette with the gift, he said it would not be all right to give it to Racheal because he believed appellee should personally give it to her.

Racheal is doing well in school and is happy at home. According to Gillette, Racheal was frightened when she saw appellee in the hall at the courthouse, because she is afraid of what appellee has done in the past and is afraid of having to visit and spend time with her. Gillette said that Racheal does not remember things that happened when she was a baby, but he has let her read the court documents; she knows all about the divorce; and she knows that appellee left her with a complete stranger while Gillette was in the Army. Gillette would have allowed appellee to see Racheal, had she asked, and he would allow visitation now. Racheal did not recognize appellee outside the courtroom and feels like appellant is her real mother. Both Gillette and Racheal want the adoption to take place.

There was also evidence that appellant has had several previous marriages. She remarried within two or three months of her first divorce, was divorced for less than onemonth when she and Gillette married, and they began dating while she was separated but still married.

Appellant argues on appeal that the trial court erred in finding: 1) that appellee's failure to communicate with Racheal for a period in excess of ten years was justifiable; 2) that appellee had supported Racheal as required by law or judicial decree; and 3) that the adoption would not be in Racheal's best interest.

Arkansas Code Annotated section 9-9-207 (a)(2) (Repl. 1998) provides that consent to adoption is not required of a parent of a child in the custody of another if the parent has failed significantly for a period of at least one year without justifiable cause to communicate with the child or to provide for her care and support as required by law or judicial decree. However, if the trial court determines that a parent's consent is unnecessary, such a finding does not require that the adoption be granted; the probate judge must also find that the adoption is in the best interest of the child. Ark. Code Ann. § 9-9-214(c) (Repl. 1998); Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983). The mere fact that a parent has forfeited his right to have his consent to an adoption required does not mean that the adoption must be granted. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). Therefore, we need not address appellant's first two arguments regarding whether the trial judge erred in his findings regarding appellee's failure to communicate with Racheal or provide for her care and support; we consider only whether the trial judge erred in finding that the adoption would not be in Racheal's best interest.

The trial judge stated that it was a shame that appellee had not visited Racheal and that he suspected that if she had wanted to visit her, she probably could. With regard to appellee's lack of support, the trial judge noted that Racheal had been receiving social security benefits since 1992, and that In Re: Administrative Order Number 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998), provides that the court should consider the amount of awards made to the disability recipient's children on account of the payor's disability. The judge also noted that appellee tried to send a gift to Racheal and that Gillette refused it. The judge said that was sad; that it was "awful" when the father turns down a child's gift from her mother; that Gillette should not run down and criticize appellee to Racheal; and that good fathers do not do that. The judge considered appellee's lack of visitation, Racheal's receipt of disability benefits, and "the track record for past marriages" of both appellant and Gillette. He then said that "when I add up all the things I need to consider on behalf of Racheal, it's my judgment that it is not in her best interest to approve this adoption at this time."

The primary objective of the probate court is to determine from clear and convincing evidence that the adoption is in the child's best interest. McCorkle, supra. A probate court's decision regarding a petition for adoption will not be reversed unless it is clearly erroneous, and we must defer to the judge's superior opportunity to assess the credibility of the witnesses. Shemley v. Montezuma, 12 Ark. App. 337, 676 S.W.2d 759 (1984). Here, the trial judge was in a better position to observe the witnesses; he found that it was not in Racheal's best interest to grant the adoption at this time; and we cannot say that he wasclearly erroneous in so doing.

Affirmed.

Pittman and Hart, JJ., agree.