Gregory Conrad v. Joseph Michael Kaiser

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

GREGORY CONRAD

APPELLANT

V.

JOSEPH MICHAEL KAISER

APPELLEE

CA 04-841

February 16, 2005

APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY

[NO. PR-2002-175]

HONORABLE RICE VAN AUSDALL,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Appellant, Gregory Conrad, appeals from a decree permitting appellee, Joseph Michael Kaiser, to adopt appellant's two children. For reversal, appellant contends that the trial court erred in finding that he had failed significantly and without justifiable cause to both support and communicate with the children for a period of one year and that the adoption was in the best interest of the children. We find no error and affirm.

In 1990, appellant married Julia Roades. In June 1995, they had a son whom they named Hunter. Another son, Cain, was born in November 1997. Appellant and Julia's marriage ended in divorce in October of 1998. Julia was awarded custody of the boys. In 1994, appellant had been convicted of possession of marijuana with intent to deliver for which he was placed on five years' probation. At the time of the divorce, appellant was to be incarcerated in connection with charges involving methamphetamine. Appellant was released from prison in June 2000. Appellant and

Julia's divorce decree made no provision for appellant to pay child support. However, appellant met with Julia's lawyer, and based on appellant's income, it was determined that appellant should pay $90.20 a week in support. This arrangement was not reduced to order form, but appellant began paying that amount in August 2000.

Also in August of 2000, Julia married appellee. Appellant also remarried in April 2001, and he and his wife, Jessica, had a child that December. In addition to their child, two of Jessica's children from a former marriage lived in their household.

In May 2002, appellant was again incarcerated after he and Jessica were arrested in Mississippi "for possessing things to make methamphetamine." Although the methamphetamine charges were dropped based on a "technicality," the arrest brought to light that appellant was living in Mississippi in violation of his parole. He remained in prison until December 2002.

With Julia's consent, appellee filed a petition to adopt Hunter and Cain in September 2002. In the petition, appellee alleged that appellant's consent was not necessary because he had failed significantly without justifiable cause to either support or communicate with the children for one year. After a two-day hearing,1 the trial court granted the petition for adoption, finding that appellant's consent was excused because he had unjustifiably failed to either support or communicate with the children for one year, and that the adoption was in their best interest. This appeal followed.

Arkansas Code Annotated section 9-9-207(a)(2) (Supp. 2003) provides 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 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 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 parent has failed significantly without justifiable cause to communicate with the children or to provide for their care and support for the prescribed period. In re Adoption of Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984). The term "failed significantly without justifiable cause" does not mean that the parent must have failed totally but denotes a failure that is meaningful, important, and willful. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341(1998).

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. Id. The trial court must further find from clear and convincing evidence that the adoption is in the best interest of the children. Id. We review such proceedings de novo, and the decision of the trial court will not be disturbed unless it is clearly erroneous, giving due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758 (2000).

At the hearing, the parties were in agreement that appellant had paid no child support from August 2001 to the date the adoption petition was filed in September 2002. As justification for this lapse, appellant and his wife Jessica testified that her pregnancy became difficult in the fall of 2001 and that she was ill and unable to work Appellant maintained that he was earning only six to eight dollars an hour, and with Jessica's inability to work, it created a hardship on him to support her and her two children, whose father was not paying support. Appellant and Jessica also testified that their daughter, born in December 2001, was hospitalized during the month of January 2002 for a condition called RSV. Jessica said that her two children lived with them all of 2001 through March 2002, when they went to live with their father. Appellant also pointed to the fact that he was incarcerated for the four months that immediately preceded the filing of the petition.

With regard to the issue of communication, it was undisputed that appellant had not seen the children at all in 2002 and that his last visit had been at Christmas-time of 2001. The parties disagreed, however, as to appellant's contacts with them before Christmas.

Appellee estimated that appellant had seen them a total of eight times in 2001. Julia testified that appellant had contact with them when he was released from prison in 2000 and "then it went to nonexistent." She said that appellant had seen them no more than ten times in the first six months of 2001; that during that time appellant had come to a few of Hunter's t-ball games in the spring; that the visits then dwindled until appellant made a brief appearance at Hunter's birthday party on June 1; that appellant did not see or contact Cain on his birthday in November; and that appellant had not seen them at all between June and December.

Appellant agreed that his visits with the children had dwindled and had been sporadic since mid 2001, but he said that it was because, although not every time, Julia and appellee would not answer the phone or had other plans. He testified that when he was paroled in June 2000 he exercised visitation one night every other weekend for a couple of months and that Julia would not allow the children to stay overnight the whole weekend. Appellant said that Julia and appellee started giving him a hard time about visitation after their marriage in August 2000, and that they had gotten mad at him in October 2000 because he refused their request to keep the children one weekend. He denied that he did not visit with the children between June and December 2001 and said he had seen them thirteen times in 2001, disagreeing with appellee and Julia's assertions that he had seen them eight to ten times. Jessica testified that they had seen the children after Hunter's birthday in June 2001, but she did not know how many times.

The trial court issued a letter opinion on December 3, 2003. The court was not impressed with appellant's testimony that he was not able to support Hunter and Cain because he was too burdened with supporting his two step-children. The court also found that appellant's incarceration was due to circumstances of his own making and that his jailing had nothing to do with his nonpayment of support since appellant had paid no support for nine months prior to his going to jail. The court further found that appellant had not had significant contact with the children from April 2001 to September 2002. Finally, the court determined that granting the adoption was in the best interest of the children. The court found that appellee "comes across as loving and caring. He has supported them since August 2000, and he can be said to have been the real father now for several years. The natural father seems indifferent, and preoccupied with his new child, and his wife's two children."

Appellant argues on appeal that the trial court's finding that he had failed significantly and without justifiable cause to support the children for one year is clearly erroneous.2 He contends that the financial difficulties he experienced resulting from his wife's inability to work during her pregnancy, their child's illness, and his incarceration justify the nonpayment of support. He also contests the finding that he failed to have significant contact with the children for one year. He contends that his visits with the children were more numerous than appellee alleged and that any drop off in visitation was attributable to his wife and child's illnesses, his imprisonment, and appellee and Julia's efforts to limit his access to the children.

Even if we could agree with appellant that his failure to pay support was justified, we cannot reach the same conclusion with regard to the issue of communication. By appellant's own admission, he only exercised regular visitation for a few months after he got out of prison in June 2000, and his visits with the children dwindled by mid-year 2001. The trial court accepted Julia and appellee's testimony that appellant's visits tapered off after April 2001; that appellant made a brief visit in June on Hunter's birthday; and that the next, and last, visit came during the month of December 2001. And, it is undisputed that appellant did not visit with the children at all in 2002. Thus, in the seventeen-month period between April 2001 and September 2002, appellant only visited with the children two times. Other than these two visits, there is no indication from the record that appellant attempted any other contacts with the children, such as by phone, card, or letter. Although appellant alleged that Julia and appellee were partially responsible for the lack of contact, we note that appellant never sought to enforce his visitation rights. The failure to seek enforcement of visitation rights is a factor for a court to consider in determining whether a parent's failure to communicate is willful. Shorter v. Reeves, supra. Moreover, our courts have consistently held that a parent's imprisonment due to the commission of criminal acts constitutes a willful and conscious disregard for the welfare of a child. See Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765(1976); Johnson v. Arkansas Dep't of Human Services, 78 Ark. App. 112, 82 S.W.3d 183 (2002); Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997); In re Adoption of Titsworth, supra. We cannot say that the trial court's finding that appellant failed significantly and without justification to communicate with the children for at least one year is clearly erroneous. Therefore, we affirm the trial court's decision that appellant's consent was not necessary. See Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983).

Appellant's final argument is that the trial court erred in finding that the adoption was in the children's best interests. On this issue, appellee testified that he had been supporting the children since his marriage to Julia and that he carried health insurance on them. He said that he did their school work with them and that he took them to ball games. Appellee further testified that he filed the petition because he loves them and that he was prepared to be there for them since appellant was not. Julia testified that appellee had a wonderful relationship with the boys. Billie Roades, Julia's mother, testified that appellee was a good daddy and that he works hard at being a father. She said that appellee spends a lot of time with the children playing games and engaging in "normal father things." She related that, when appellee picks them up after spending the night with her, they take off running and jump, hug, and kiss all over him.

As Judge Cracraft once wrote:

It is impossible to carefully define that point at which the interests of a child are best fostered by terminating existing parental relationships and creating new ones. Each case must be determined on its own peculiar facts and circumstances. For this reason, our courts very wisely give great deference to the superior position of the trial court to make that determination. In these cases, a heavy burden is placed on the trier-of-fact to utilize to the fullest extent his powers of perception in the evaluation of witnesses, their testimony, and where the interest of the child actually lies. In no case does the superior position, ability, opportunity, and insight of the trial judge in observing the parties carry greater weight than those cases involving minor children.

Manuel v. McCorkle, 24 Ark. App. at 99, 749 S.W.2d at 345. Giving due deference to the trial court, we cannot say that its decision is clearly erroneous.

Affirmed.

Bird and Baker, JJ., agree.

1 The case was heard on February 27, 2003, and November 6, 2003. Because of the lapse of time between the hearing dates, a transcript of the February 2003 hearing was made available to the trial judge for his review.

2 Appellant also contends that he was not given the benefit of the notice provisions found in Ark. Code Ann. § 9-9-220(c)(1)(A) - (C) (Supp. 2003). Appellant, however, did not make this argument below. We do not consider issues raised for the first time on appeal. T&T Chemical, Inc. v. Priest, 351 Ark. 537, 95 S.W.3d 750 (2003).