Daniel Newell Lestina and Deborah Kaye Lestina v. Melissa Lestina

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

IN THE MATTER OF THE ADOPTION OF JULIANN LESTINA

DANIEL NEWELL LESTINA AND DEBORAH KAYE LESTINA, husband and wife, APPELLANTS

V.

MELISSA LESTINA,

APPELLEE

CA00-993

MAY 30, 2001

APPEAL FROM THE BENTON COUNTY PROBATE COURT,

NO. P99-284-2,

HON. DONALD R. HUFFMAN,

PROBATE JUDGE

AFFIRMED

Appellants Daniel and Deborah Lestina bring this appeal from an order of the Benton County Probate Court denying Deborah Lestina's petition to adopt Juliann "Juli" Lestina. Appellee is Juli's mother, Melissa Lestina. Appellants raise four points on appeal: (1) that the probate judge erred in holding that Melissa's failure to provide any financial support for Juli would not be considered in the adoption proceeding; (2) that the judge erred in holding that Melissa's failure to significantly communicate with Juli was justified and that her consent for adoption was required under Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1998); (3) that the probate judge erred in holding that it was not in Juli's best interest to grant the adoption; and (4) that the judge erred in excluding and not considering evidence relevant to the adoption proceeding. We find no merit in appellants' arguments, and we affirm.

Daniel Lestina and Melissa Lestina conceived a child out of wedlock when they were teen-agers. Daniel joined the service, and he and Melissa married in October 1991. They were transferred to Virginia. Juli, their daughter, was born March 8, 1992. They divorced on December 9, 1994. Two days prior to their divorce, Melissa gave birth to another child, who was not fathered by Daniel. At the time of the divorce, Daniel and Melissa agreed to joint custody of Juli, with Daniel having physical custody subject to Melissa's liberal visitation rights. After Daniel was discharged from the Navy, he notified the court and Melissa that he and Juli were moving to Oklahoma. They moved in June 1995 and lived with his parents until he earned his college degree. In 1998, he and Juli moved to Rogers, Arkansas, and Daniel married Deborah in 1998.

Melissa exercised her visitation rights during Christmas of 1995. She again exercised her visitation rights in June 1996, but it was cut short by three weeks at Melissa's request. During that visit, at Melissa's request, Daniel flew to Virginia, and brought Juli home because Melissa was having domestic problems with her second husband. Daniel testified that he found Juli filthy, with a hand print on her thigh, and a circular scab on her right arm. Melissa denied having any knowledge of Juli's condition. Daniel petitioned the Virginia Circuit Court for full custody, which he was awarded on August 5, 1996. Melissa's visitation was not modified, and there was no order for Melissa to pay child support. Melissa requested visitation for Christmas 1996, but was refused. However, Daniel testified that he offered an alternative weekend for the holiday and that Melissa refused. Daniel agreed to allow Melissa to exercise her visitation rights in April 1999. Daniel testified thatduring that particular visit, he ended the visitation two days early after he learned the Melissa had asked Juli to live with her. In addition, he testified that Melissa told Juli that Melissa's other two children were Juli's siblings and that this was confusing to Juli.

Melissa refuted this testimony, stating that she asked Juli if she would like to visit her in the summer of 1999 and take a vacation to Florida with her and her other children and boyfriend. She also stated that after this incident, Daniel stated that in order for Melissa to see Juli, she would have to go to court and that Juli was not allowed to visit her in the summer of 1999. Daniel argued that even though Melissa called Juli every couple of months, this did not amount to significant contact. Daniel stated that he realized that it would be a fairly serious expense for Melissa to exercise visitation. He testified that Juli's relationship with her mother was not healthy because of Melissa's unstable relationships, unstable working environments, and unstable home.

Melissa Lestina testified that she currently lives in Georgia and is engaged to the father of her third child. She stated that she had moved five times in a span of about a year; however, she stated that she was planning to move to Edmond, Oklahoma, in 2000 where she would remarry and live permanently. She said that she was moving to Oklahoma so that she could see Juli every other weekend. Melissa testified that in April 1998, Daniel informed her of Deborah's plan to adopt Juli.

Melissa also testified that there were times that Daniel would not give her a telephone number where she could reach Juli. She stated that in the past she had tried to call at least twice a week, but she currently called whenever she had a moment to pick up the phone. She conceded that visitation had been sporadic and that she did not request visitation from December 1996 through December 1998. However, she stated that during that time she gave birth to her third child, a daughter, who was born with lung problems and that, because of her daughter's health problems, she was not able to travel to see Juli. However, she maintained telephone contact with Juli. She testified that in 1998, Daniel had asked Juli to refer to her as Melissa rather than mother, but that Juli had only called her that one time. She said that after she and Daniel divorced, Juli lived with her part of the time before Daniel and Juli moved to Oklahoma. Melissa did not take any action after Daniel moved Juli to Oklahoma.

Melissa also conceded that she had not provided child support for Juli but stated that she was not required to do so. She stated that after Daniel was awarded full custody of Juli, she was directed to see someone at the Child Support Enforcement Office in order for someone to review her pay stubs and expenses. She did so, but was not ordered to pay child support, even though she had worked after she and Daniel separated. She stated that she did not currently work because she moved often due to her fiancé's job requirements. In addition, she stated that because of her third daughter's health complications, she was required to pay about $9,000 in medical expenses that was not covered by insurance. She stated that she had sent Juli birthday presents and Christmas gifts and that although the gifts did not amount to much, it was all she could afford. She testified that some of the gifts were returned to her. She introduced her W-2s into evidence that showed that in 1995, she earned approximately $15,000; in 1997, she earned $17,900. In 1998, between January and June,she earned $10,000. In June 1998, she quit working and moved to Georgia.

Linda Lestina, Daniel's mother, testified that when Daniel and Juli were living with her, Melissa's contacts with Juli were very sporadic. She stated that when Daniel and Juli first moved to Oklahoma, Melissa would call one or two times a month. After June 1996, Melissa would sometimes call one or two times a month, but that months would go by without a phone call. In addition, Linda stated that, in the first year that Juli lived with her, Melissa wrote two letters. Linda stated that in three years, Melissa had sent only two gifts to Juli.

Linda testified that when Daniel and Melissa were still married, she and Daniel's father, Roger, had visited Melissa and Juli on her first birthday. Daniel was out to sea at that time. Linda was "appalled" at what she saw. She said that she filled two garbage sacks with dirty diapers that she found on the floor. Linda stated that Juli was not just dirty, but sour smelling, and that she had a bloody rash on her bottom from not being kept clean. In addition, she stated that Melissa would go out late at night, with a bottle of wine in her backpack.

Roger Lestina testified that after Juli's visit with her mother in June 1996, he noticed "signs of abuse," which included scabbing on one of Juli's forearms, and a hand print and bruising on one of Juli's hips. In addition, he stated that Juli seemed agitated and would rock a great deal and bang her head a great deal.

Deborah Lestina testified that she has been involved in Juli's life since 1997 and that since that time Melissa had not had any substantial contact with or provided any financialsupport to Juli. Deborah said that since May 31, 1998, Melissa called approximately once a month. However, after Melissa's visitation was cut short in April 1999 Melissa had called very little. Deborah stated that Melissa did not call between May and September 1999. Daniel, Deborah and Juli had moved into a new house in July 1999 but did not send notice to Melissa of the new address until two months later. However, the phone number had not changed.

Juli's attorney ad litem prepared a report in which she recommended that the adoption petition be granted because Melissa had failed for a period of at least a year 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. She stated that Melissa's instability was a detriment to Juli's well-being and that as Juli gets older, Melissa's contact will be more disruptive and detrimental.

After a hearing on the issue, the probate judge denied the adoption petition, stating that consent was required and that it was not in the best interest of Juli at the current time to be adopted by Deborah. The chancellor stated that even though there had been a lot of testimony regarding the fact that Melissa had failed to provide any support for Juli, he had "no say over that except as provided by court order ... ."

Daniel and Deborah contend that the court erred in dismissing Deborah's petition for adoption upon findings that consent was required and that it was not in Juli's best interest to be adopted. They contend that consent was not required because Melissa had failed significantly, without justifiable cause, to both communicate with Juli and to provide supportfor Juli.

The statutory requirements involving the adoption of minors are to be strictly construed and applied. In Re: Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997); Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986). Unless consent is not required under Ark. Code Ann. § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by the mother of a minor. Ark. Code Ann. § 9-9-207(a)(1). Arkansas Code Annotated section 9-9-207 states:

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[.]

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 party 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 will not be disturbed unless clearly erroneous. Vier v. Vier, supra; In Re: Adoption of Lybrand, supra. We have stated that the personal observations of the trial judge are entitled to even more weight in cases involving the welfare of a minor child. Vier v. Vier, supra; In Re: Adoption of Lybrand, supra.

Failure to communicate without justifiable cause is failure that is voluntary, willful, arbitrary, and without adequate excuse. In Re: Adoption of Lybrand, supra. The one-year period may be any one-year period, not merely the one-year period preceding the filing ofthe adoption proceeding. In Re: Adoption of Lybrand, supra. It is not required that parents fail totally in their obligations in order to fail "significantly" within the meaning of the statutes. In Re: Adoption of Lybrand, supra. Furthermore, the duty to support is not excused on the basis of other people's conduct unless such conduct prevents the performance of duty of support. In Re: Adoption of Lybrand, supra. The duty to support a minor child is a legal obligation, independent of statute. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). Abandonment, in the sense of the adoption statutes, means conduct that evinces a settled purpose to forego all parental duties. Pender v. McKee, supra.

Appellants first argue that the probate judge erred in holding that Melissa's failure to provide any financial support for Melissa would not be considered. They argue that the fact that she was not under court order to provide child support does not excuse her obligation of support. During the hearing, the judge stated that the parties did not need to "argue" about what is not court ordered. Later in the hearing, he stated that the court order does not provide that she pay child support, and that he has no say over that except what is provided by court order. Daniel and Deborah argue that by making these statements the court committed reversible error because under Arkansas law a parent always has a duty to provide for the child. We do not find that the court was clearly erroneous in its findings. At the end of the hearing, the probate judge stated that even considering the fact that Melissa has not provided any support, it was not in Juli's best interest to grant the petition. The probate judge did not make any findings regarding Melissa's justification or lack of justification for failing to support Juli. However, testimony was presented that Melissa hadtwo other children, the youngest of whom was born with lung complications, including a collapsed lung, for which Melissa incurred substantial medical expenses, amounting to approximately $9,000. The most Melissa earned in one year was $17,900. In addition, there was also testimony that Melissa had sent birthday presents to Juli, which included toys and clothing.

Daniel and Deborah's second argument is that Melissa's consent was not needed because she had failed to significantly communicate with her daughter. Appellants assert that the failure to exercise her visitation rights amounted to a significant failure to communicate. We do not agree. We do not commend Melissa for her lack of parental skills, and we acknowledge that her communications with Juli were sporadic, but there was testimony that Melissa did not let one year lapse without communication. Phone records were introduced showing that Melissa had communicated with Juli. In addition, Melissa testified that she sent gifts to and received letters from Juli. There was some disputed testimony as to whether any gifts were sent to Juli from March 1996 to November 1998. Melissa claims to have sent the gifts but claims that they were returned. Daniel, Deborah, Linda, and Roger Lestina testified that they had not returned any gifts. Such a credibility determination lies within the sound discretion of the probate judge. In Re: Adoption of Lybrand, supra.

Daniel and Deborah's third argument is that the court erred in not finding that it was in Juli's best interest to be adopted. A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained orexcused and that the adoption is in the best interest of the child or individual to be adopted. Bemis v. Hare, supra. Again, we defer to the probate judge's personal observations when the welfare of young children are involved. In Re: Adoption of Lybrand, supra.

In the case at bar, testimony was introduced that proved that Melissa had given Juli several small gifts over several years and that she had attempted to maintain a relationship with Juli. Testimony was presented that Melissa had attempted to exercise her visitation rights sporadically. Also, there was testimony that Juli had been encouraged to maintain a relationship with her mother. Based upon the evidence presented during the hearing, and deferring to the probate judge in making credibility determinations, we cannot say that the judge was clearly erroneous in finding that it was not in Juli's best interest to grant the adoption proceeding at this time.

Appellants' final argument is that the court committed reversible error by not considering relevant evidence. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401. We will not reverse a judge's ruling on the admission of evidence absent an abuse of discretion. In Re: Adoption of K.M.C., 62 Ark. App. 95, 969 S.W.2d 197 (1998). The issues that appellants attempted to introduce into evidence through testimony included whether Melissa had another child out of wedlock (which was introduced into evidence during the proceeding); how often appellants spent time together; the size of their home; testimony about Deborah's relationship with Juli (which was also later introduced into evidence); andtestimony of a child-support enforcement worker regarding Melissa's location. After a review of the various objections made and the rulings by the court, we cannot say that the court erred. In addition, the probate judge was not bound by the attorney ad litem's recommendation, but could consider it along with other evidence in making his determination.

We affirm.

Jennings and Griffen, JJ., agree.