Tommy Lyn Wilkerson and Gavaughn Lynn Wilkerson v. James V. Scroggins

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

TOMMY LYN WILKERSON and

GAVAUGHN LYNN WILKERSON

APPELLANTS

v.

JAMES V. SCROGGINS

APPELLEE

CA02-741

APRIL 16, 2003

APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT

[P-2001-25-4]

HONORABLE LEON N. JAMISON, CIRCUIT JUDGE

AFFIRMED

Appellants, Tommy Lyn Wilkerson, Sr. and Gavaughn L. Wilkerson, appeal from the denial of their petition for adoption by the Lincoln County Circuit Court. Appellants have two arguments on appeal. First, appellants argue that the trial court erred in finding that a $5,000 check from appellee to appellant, Gavaughn Wilkerson, should be counted as support. Second, appellants argue that the trial court erred in finding that appellee, James V. Scroggins's, failure to pay support for a period of at least a year was not willful. We affirm.

Mrs. Wilkerson and Mr. Scroggins had a son, Zachary, born August 28, 1996. The two separated in January 1998, after living together since 1995. Mr. Scroggins testified that he did not pay child support to Mrs. Wilkerson after their separation because he "had the child most of the time right after she left." While Mrs. Wilkerson was working, Mr. Scroggins kept Zachary. James O. Scroggins, appellee's father, testified that he also kept Zachary after his son and Mrs. Wilkerson

separated. He stated, "I had Zachary the biggest part of every weekend, or every other weekend,after they split up."

In October 1998, Mr. Scroggins, his fiancée, and Zachary were involved in a head-on collision. At the time, Mr. Scroggins was working for the post office. On that particular Saturday, he had the afternoon off after delivering mail in Dumas. The accident occurred on his way back to the mail truck. As a result of the accident, Mr. Scroggins suffered a broken neck, back, and three broken bones in his leg. He had a compound fracture in his ankle, which severed his foot. Although the foot was reattached, he has a rod in his leg, and screws and plates in his neck and back. Mr. Scroggins testified that he has been unable to work since the accident.

More than a year after the parties' separation, on May 19, 1999, Gavaughn Wilkerson filed a complaint to establish paternity of Zachary. In an order filed September 9, 1999, in the Jefferson County Circuit Court, Mr. Scroggins was found to be Zachary's biological father. The order also set out appellee's rights as to visitation and set his child support at $50 per week.

After the paternity order, Mr. Scroggins testified that his mother paid his child support for him, with his money. He admits that he last paid child support in November 1999; however, he testified that he stopped paying because he had no money. Since the accident, Mr. Scroggins testified that he has attempted to work and tries to do anything that he feels like he can do. He often works on his neighbors' automobiles and receives payment in the form of groceries or payment on an electric bill. His inability to maintain steady employment is due to trouble with pain in his legs associated with the injuries from the automobile accident. Mr. Scroggins's father testified that his son was not capable of steady employment because of his back, neck, and leg pain.

On January 18, 2000, the court entered an order with more specific findings as to Mr. Scroggins's visitation rights. The court made further findings in the order that "Mr. Scroggins, as a result of this unfortunate accident, does have severe disabilities, at least from the evidencespresented today. He is pursuing a claim with the Social Security Administration disability proceeding." The court reduced Mr. Scroggins's child support obligation to $25 per week.

As a result of the automobile accident, Mac Norton, the attorney representing Mr. Scroggins on his claim for damages in the automobile accident, testified that Mr. Scroggins received a settlement of $50,000. Mr. Norton testified that of the $50,000 settlement, he sent $5,000 to Mark Chadick, the attorney representing Zachary in the accident. The memo line of the check read "Zachary Scroggins." Although the check did not indicate that it was for Zachary's support, Mr. Scroggins testified this portion of his settlement was for support for Zachary. He specifically stated that, "I intended the five thousand dollars to be for Zach. He had been sick and in the hospital and I hadn't been able to pay child support and it was just for whatever he needed." The check was payable to Gavaughn Wilkerson. Attorney Mark Chadick testified that Zachary's file indicated that the $5,000 was for support. However, the back of the check indicated that it was deposited into a trust account for Zachary. As a result of the accident, Zachary received a total of $29,750; however, $18,955 was dispersed for medical expenses for Zachary. The balance of money, including the $5,000, was used for legal fees and to fund the guardianship account that had been established. Gavaughn Wilkerson had been appointed guardian of the trust account for Zachary by an order from the Jefferson County Probate Court on June 28, 1999. At the time of the June 1999 order, there was a $6,000 balance in the guardianship account. The settlement worksheet indicated that the $5,000 was for medical payment coverage; however, Mark Chadick testified that he could not trace the $5,000 check to any medical payment coverage. Although the check was endorsed by Gavaughn Wilkerson, she denies endorsing the check or having any knowledge of it until the day of trial. Her testimony at trial was that the check was not support for Zachary because it was not given to her; rather, it was placed in the trust account established by Zachary's attorney. Mr. Scroggins, on theother hand, testified that "I knew that Mr. Norton sent a check to Mr. Chadick for $5,000 that was intended as child support for Zach."

Testimony at trial reflected that Mr. Scroggins exercised his visitation with Zachary until Easter 2000. After that date, Mr. Scroggins testified that the only way he was able to see Zachary was through his father, James O. Scroggins, Zachary's paternal grandfather, who was allowed to continue visitation. Visitation with the paternal grandfather continued until September 2000. In September 2000, Gavaughn Wilkerson refused to allow any visitation between Zachary and his paternal grandfather. Although Ms. Wilkerson testified that Mr. Scroggins made no effort to contact her, Mr. Scroggins testified that he unsuccessfully attempted to make contact with Mrs. Wilkerson throughout the year 2000. On July 9, 2001, Tommy Wilkerson filed a petition for adoption of Zachary, alleging that because Mr. Scroggins failed to support his child and failed to visit the child for a period of one year, the court should grant the adoption without the consent of Mr. Scroggins.1 Mr. Scroggins filed his answer on September 4, 2001, alleging that Mrs. Wilkerson did not allow him to visit Zachary per the court's order.

The trial judge made the following findings of fact in this case: that Mr. Scroggins had justifiable cause in not consistently paying his court ordered support due to the serious injuries that he received and the physical limitations that resulted from the automobile accident; that he had not had any meaningful employment since the accident and was pursuing a social security disability claim; that the $5,000 from Mr. Scroggins's settlement was for the day to day support of Zachary; that Mr. Scroggins maintained communication with Zachary through his father until September 2000; that Mr. Scroggins's communication was limited due to Mrs. Wilkerson's failure to cooperateregarding visitation; and that he never went more than a period of one year without significant communication with Zachary. As a result of these findings, the trial court denied the petition for adoption. The Wilkersons appeal only two of the trial judge's rulings; that the $5,000 check was support for Zachary and that Mr. Scroggins's failure to pay support was not willful.

In an adoption proceeding, the natural relationship between parent and child is subject to absolute severance. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983). When the adoption is sought without the consent of a parent and against his or her protest, the courts are inclined to favor the maintaining of the natural relationship. Id. (citing Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979)). Under Arkansas law, a petition to adopt a minor may not be granted without written consent of the parents, unless that consent is not required. In re Adoption of Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989). Arkansas Code Annotated § 9-9-207(a)(2) (Repl. 2002) provides in part that consent to adoption is not required of:

A parent of a child in the custody of another, if the parent for a period of a 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 provided by law or judicial decree.

The party seeking to adopt a child without the consent of a natural parent must provide proof of clear and convincing evidence. In re Adoption of Milam, supra (citing Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988)). On appellate review, we will reverse findings of fact only if they are clearly erroneous or against the preponderance of the evidence. Id.

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d

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²··Mr. and Mrs. Wilkerson first argue that the trial court erred in finding that a $5,000 check from Mr. Scroggins to Mrs. Wilkerson was support for Zachary. The evidence demonstrated that the $5,000 was deducted for Zachary from Mr. Scroggins's settlement statement. Mr. Norton testified that of the $50,000 settlement, he sent $5,000 to Mark Chadick, Zachary's attorney. Testimony showed that Mr. Chadick received the check, which had Zachary's name in the memoline, and that Zachary's file indicated that the $5,000 was for support. Mr. Scroggins testified that, "I intended the five thousand dollars to be for Zach. He had been sick and in the hospital and I hadn't been able to pay child support and it was just for whatever he needed." The check was payable to Gavaughn Wilkerson as guardian of Zachary's estate and was endorsed by Mrs. Wilkerson, and it was placed in a guardianship account established for Zachary. Although Mrs. Wilkerson denies having any knowledge of the check, she was clearly aware of the existence of the check, and her assertion that the check was not support for Zachary because it was not given directly to her is without merit. The trial court determined that it "must conclude that the $5,000 was for the day to day support of Zachary." We cannot say this finding was clearly erroneous.

Mr. and Mrs. Wilkerson argue that the trial court erred in finding that Mr. Scroggins's failure to pay support for a period of at least a year was not willful. Mr. Scroggins's testimony demonstrated that in the automobile accident in 1998, he suffered a broken back, neck, and leg. Since the accident, he has been unable to maintain any meaningful employment. Although he supported Zachary after the order of paternity was entered in September 1999, he testified that he was unable to support Zachary after the accident due to his physical limitations. Mr. Scroggins's father verified his son's inability to maintain steady employment because of pain in his back, neck, and leg. The trial judge found that he was incapacitated "physically to a great extent." In January 18, 2000, the court specifically found that "Mr. Scroggins, as a result of this unfortunate accident, does have severe disabilities, at least from the evidences presented today. He is pursuing a claim with the Social Security Administration disability proceeding." As a result, we hold that the trial judge did not err in finding that Mr. Scroggins had justifiable cause for not paying his court ordered support.

Tommy Wilkerson argues that the court should have granted the adoption without Mr.Scroggins's consent not only because Mr. Scroggins failed to support his child, but also because he failed to visit the child for a period of one year. Mr. Scroggins responded by asserting that Mrs. Wilkerson intentionally prevented him from seeing Zachary. The testimony demonstrated that Mr. Scroggins exercised his visitation with Zachary until Easter 2000. After that date, Mr. Scroggins testified that the only way he was able to see Zachary was during his father's, Zachary's paternal grandfather, continued visitation. In September 2000, Mrs. Wilkerson refused to allow any further visitation with Zachary's paternal grandfather. Mr. Scroggins testified that he attempted to make contact with Mrs. Wilkerson throughout the year 2000, but was unsuccessful. Given this testimony, the trial court's finding that Mr. Scroggins had justifiable cause for not communicating with Zachary after September 2000 was not clearly in error.

The court gives careful protection to a natural parent's rights. In the Matter of the Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986). As announced in that case:

. . . [T]he power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation.

Id. at 13-14, 702 S.W.2d at 62-63 (quoting Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953)).

Although a parent cannot simply turn a child's care and support over to another and be excused from the duty of providing support for the child, we cannot say that the trial judge erred in finding that Mr. Scroggins had justifiable cause in not paying his court ordered support consistently. See In the Matter of the Adoption of Glover, supra. Nor can we say that the trial judge erred in finding that Mr. Scroggins's failure to communicate with Zachary was with justifiable cause in light of Mrs. Wilkerson's actions.

For these reasons, we affirm.

Gladwin and Neal, JJ., agree.

1 On October 16, 2000, Tommy and Gavaughn were married; thus, by amendment of October 25, 2001, Gavaughn Wilkerson joined her husband's petition to adopt Zachary.