Gary Barth v. Shannon Barth Carson and Dr. Jeff Carson

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

GARY BARTH

APPELLANT

v.

SHANNON BARTH CARSON and DR. JEFF CARSON

APPELLEES

CA04-936

SEPTEMBER 28, 2005

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[DR-1998-1409-1]

HONORABLE DAVID B. SWITZER, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Gary Barth, appeals the order of the Garland County circuit court terminating his parental rights and granting the adoption of his child, G.B, by the appellees, Shannon Barth Carson and her husband Dr. Jeff Carson. On appeal, Gary asserts that the trial court abused its discretion by finding clear and convincing evidence that his parental rights should be terminated and in granting the adoption petition of Shannon and Dr. Carson. We affirm.

Gary Barth and Shannon Barth Carson were divorced in July 1998 in Garland County. The divorce decree gave custody of G.B. to Shannon and provided for regular visitation with Gary. In July 2001, Shannon sought and obtained an emergency ex parte order suspending Gary's visitation rights based upon G.B.'s report to his psychiatrist, Dr. Warren Seiler, regarding sexual abuse incidents occurring between G.B. and Gary. G.B. began seeing Dr. Seiler in January 2001, due to unexplained anxiety. The record indicates that as early as September 1999, the parties sought therapy for G.B.'s mood and behavior problems, first seeking help from Terry Anderson, a counselor at the Stepping Stone Clinic. Mr. Anderson saw the parties and G.B. for a short time, but when there seemed to be no progress, Shannon took G.B. to Dr. Seiler. Dr. Seiler

first recommended increased visitation with Gary. Shannon complied with this recommendation until shortly prior to G.B.'s allegation of sexual abuse. Shannon then filed a petition to suspend Gary's visitation. Later, Shannon amended her petition to seek termination of Gary's parental rights and to allow her husband, Dr. Jeff Carson, to adopt G.B. At the conclusion of a four-day trial, the trial judge found by clear and convincing evidence that Gary had abused G.B. and that Gary was unreasonably withholding his consent to the adoption petition of Shannon and Dr. Carson. Gary's parental rights to G.B. were terminated and the adoption petition of Shannon and Dr. Carson was granted on May 31, 2004. This appeal followed.

Equity cases are reviewed de novo on appeal, and we will reverse the trial court's findings only if they are clearly erroneous or clearly against a preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. Corley v. Ark. Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994) (citing Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993)). In cases involving minor children a heavier burden is cast upon the court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interests. In the Matter of the Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990). This court has no such opportunity, and we know of no case in which the superior position, ability, and opportunity of the probate court to observe the parties carry as great a weight as one involving minor children. Id. Our case law is clear that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Corley v. Ark. Dep't of Human Servs., supra. However, parental rights will not be enforced to the detriment or destruction of the health and well being of the child. Id.

Arkansas Code Annotated section 9-9-220 (Repl. 2002) provides in pertinent part:

(a) The rights of a parent with reference to a child, including parental right to control the child or to withhold consent to an adoption, may be relinquished and the relationship of parent and child terminated in or prior to an adoption proceeding as provided in this section.

....

(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:

....

(2) Neglect or abuse, when the court finds the causes are irremediable or will not be remedied by the parent.

(3) That in the case of a parent not having custody of a child, his consent is being unreasonably withheld contrary to the best interest of the child.

At trial, Dr. Carlene Lyle, a child and adolescent psychiatrist, testified via video deposition as an expert witness. She testified that based upon her evaluation, Gary was a person who could have committed the acts of sexual abuse alleged by G.B. and that he had a propensity for violence. Dr. Lyle further testified that in her eleven years of practice she had never felt the trepidation that she felt about Gary. Given her evaluation, she felt that a child like G.B. would react to Gary with anxiety and ambivalence. She opined that visitation should not continue, as it would not benefit G.B. for Gary to continue to see him. Additionally, Dr. Lyle testified that a resumption of visitation would put G.B. back in the position of being emotionally tortured.

Dr. Seiler testified that it was evident from early in his visits with G.B. that G.B. had a very troubled relationship with Gary. He stated that Gary or Shannon "is either knowingly distorting the situation, or one of these two parties is seriously mentally disturbed." He further testified that he had seen nothing in the history of the case to indicate that the accusations of G.B. were either false or contrived by Shannon. He also testified that it was evident that Gary was "absolutely obsessed" with his relationship with G.B. and this caused him concern.

Dr. Paul Deyoub, a clinical psychologist, performed a psychological evaluation on Gary, finding that there is no way he would categorically rule out appellant as a possible offender. Dr. Deyoub's report stated that appellant is an individual capable of deception, has difficulty with interpersonal relationships, and is a covert aggressive individual.

Additional witnesses included Rena Albright Verucchi and Dewayne Harris. Ms. Verucchi is the office manager for Moman Bates Buick GMC, a former employer of Gary's. She testified to Gary's abusive and belligerent behavior toward his supervisor, which ultimately caused his termination for insubordination. Mr. Harris, an assistant manager to Wal-Mart and Gary's direct supervisor, testified that he had a problem with Gary's reputation for truthfulness, and in his opinion Gary had a problem with telling the truth.

While the primary consideration in this case is the welfare of G.B., this does not mean that courts can sever the parental rights of non-consenting parents and order adoption merely because the adoptive parents might provide a better home. (See Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983)). Here, however, the evidence demonstrated Gary's abuse and unfitness as a parent. The trial court heard testimony both from people acquainted with Gary and from experts in the field of psychology. Each testified as to Gary's aggressive behavior, lack of truthfulness, or actions consistent with G.B.'s allegations of sexual abuse.

After a review of the record, we conclude that the trial court did not clearly err in terminating appellant's parental rights and finding it in the best interest of G.B. that the adoption petition of Shannon and Dr. Carson be granted.

Affirmed.

Bird and Roaf, JJ., agree.