Derrick Beeks v. Jackie David Atkins and Charlotte Sue Atkins

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CA 02-252

November 13, 2002

DERRICK BEEKS

APPELLANT APPEAL FROM BENTON COUNTY

CIRCUIT COURT

VS.

HONORABLE XOLLIE DUNCAN

CIRCUIT JUDGE

JACKIE DAVID ATKINS

and CHARLOTTE SUE ATKINS AFFIRMED

APPELLEES

Derrick Beeks appeals from a decree allowing the adoption of his son by the child's maternal grandparents. For reversal, appellant contends that the trial court erred in finding that he had failed significantly without justifiable cause to support or communicate with the child for a period of one year and in finding that the adoption was in the child's best interest. We affirm.

The child in question was born in December 1990 to appellant and his wife, Rhonda. Appellant and Rhonda divorced in January 1993 when the child was two years old. In the divorce, Rhonda wasgranted custody of the child, and appellant was accorded reasonable visitation "restricted in the presence of [Rhonda] or her desig nated representative" and was ordered to pay $50.00 a week in child support.

Since the divorce, the child has lived in the home of Rhonda's parents, appellees David and Charlotte Atkins. With Rhonda's consent, appellees filed a petition to adopt the child in January 2001 when the boy was ten years old. In the petition, appellees alleged that appellant's consent was not necessary because he had failed significantly without justifiable cause to support or communicate with the child for over one year.

At the hearing, it was established that both Rhonda and appellant had a history of drug abuse. Specifically, appellant testified that he had a serious methamphetamine habit that persisted from 1993 to 1999. During that time, appellant had been incarcerated on three occasions. He spent three months in jail in 1996. He spent thirteen months in prison from April 1994 to May 1995. He had also been in a Missouri prison from October 1998 to August 1999.

Appellant paid no support through the registry of the court in 1993, 1994, 1995, 1996, 1997, 1998, and 1999. At the time of the hearing, appellant had been employed for eighteen months and had paid support by wage withholding since February 2000, as a resultof an action brought by child support enforcement. Appellant testified that he had given Rhonda cash when she had asked for money in those years when he had not paid support through the court's registry. He also testified that Rhonda had received $2,500.00 when he worked in a work-release program when he was in jail.

Appellant further testified that he had seen his son forty times between 1993 and 1996 but that he had not visited with the child since 1996. He said that he had once called the appellees' home and had asked for visitation but that he was denied access to the child. He also testified that he had sent the child cards and letters on birthdays and at Christmas. Appellant's sister testified that she had once called appellees asking for visitation on appellant's behalf and that her request had been denied.

Appellant also testified that he had not been a good person when he was using drugs and that his being on drugs was the worst mistake he had made in his life. He testified, however, that he had been drug-free since his release from prison in 1999. He said that he was now employed, that he had remarried, and that he had recently purchased a ten-acre farm where he and his wife were to live. Appellant testified that he was now able to resume responsi bility for the child and that he wished to be reunited with him.

Appellee Charlotte Atkins testified that appellant had called once asking to see Rhonda and the child sometime in 1994 or 1995. She said that Rhonda was not there at the time and that she had told appellant that Rhonda had asked her not to allow him to visit with the child unless Rhonda was present. She said that she told appellant to call back but that this call was the first and last time appellant had contacted her about visitation. She also testified that there had been only one letter from appellant in all of those years. On recall, she said that she had never met appellant's sister and did not recall receiving a phone call from her.

In its ruling, the trial court applauded appellant's efforts to turn his life around, but found that appellant's consent was not necessary because he had failed significantly without justifiable cause to communicate with or support the child. The court granted the adoption, finding that it was in the child's best interest.

Parental rights are not proprietary and are subject to the performance of duties and obligations of a parent to care for and support a child; the law only protects the rights of parents so long as the parent discharges these duties. Apel v. Cummings, 76 Ark. App. 93, 61 S.W.3d 214 (2001). Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 2002) provides that consent to an adoption is not required of a parent of a child in the custody ofanother, 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. The one-year period referred to in the statute may be any one-year period, not merely the one-year period preceding the filing of the adoption petition. In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997). It is also not required that a parent fail "totally" in their obligations in order to fail "significantly" within the meaning of the statute. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). Rather, it means a failure that is voluntary, willful, arbitrary, and without adequate excuse. Cassat v. Hennis, 74 Ark. App. 226, 45 S.W.3d 866 (2001).

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 either communicate with or support the child. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). We review the record de novo on appeal, and the decision of the trial judge 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 witnesses. Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758 (2000). The personal observations of the trial judge are entitled to even more weight in cases involvingthe welfare of a child. In re Adoption of Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984).

In this appeal, appellant argues that the trial court erred in finding that he had failed significantly without justifiable cause to support or communicate with the child. We hold that the trial court's ruling that appellant had made no meaningful effort to communicate with the child for a number of years is not clearly erroneous. Appellant had not seen the child since 1996. Although appellant testified that he had sent the child cards and letters and that his efforts to visit the child had been thwarted, those assertions were disputed in the testimony of Ms. Atkins. It was for the trial court to determine the credibility of the respective testimony, and the court resolved that issue in appellees' favor. In addition, the trial court could take into account appellant's failure to seek enforcement of his visitation rights as a factor weighing against appellant's position. See Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). We can find no error in the trial court's finding on the communication issue. The statute, Ark. Code Ann. § 9-9-207(a)(2), provides that a parent's consent is not necessary if the parent fails significantly without justifiable cause to communicate with or support the child. Our holding that appellant failed to communicate with the child for one year is enough reason to dispense with appellant's consent; therefore, weneed not discuss the trial court's finding that appellant also failed to support the child.

Appellant's final issue is that the trial court erred in finding that the adoption was in the child's best interest. The evidence in this case was that appellees had raised the child for eight years before the petition was filed. Appellees had already adopted the child's fourteen-year-old half brother, and it was said that appellees and the two children lived together as a cohesive family. Appellees were also said to be heavily involved with the children and their activities. We cannot say that the trial court's finding is clearly erroneous.

Affirmed.

Hart and Griffen, JJ., agree.