Adoption of J.P. v. Benson

• Decision Date: 19 January 2012
• Docket Number: No. 11–675.,11–675.
• Citation: 2011 Ark. 535,385 S.W.3d 266
• Parties: In re ADOPTION OF J.P. Derek Lee Pippinger, Appellant v. Doris Benson & Bertie May Blasingame, Appellees.
• Court: Arkansas Supreme Court

2011 Ark. 535

385 S.W.3d 266

In re ADOPTION OF J.P.Derek Lee Pippinger, Appellant

v.Doris Benson & Bertie May Blasingame, Appellees.

No. 11–675.

Supreme Court of Arkansas.

Dec. 15, 2011.

Rehearing Denied Jan. 19, 2012.

Chesley David Dunlap, Trumann, for appellant.

Melissa Bristow Richardson, Jonesboro, for appellees.

PAUL E. DANIELSON, Justice.

Andrea Pippinger appeals from the circuit court's order denying her petition to adopt J.P., her stepson, and appellantDerek Pippinger appeals from the circuit court's order granting visitation with his son, J.P., to appelleesDoris Benson and Bertie May Blasingame, J.P.'s maternal grandmother and great-grandmother.The Pippingers originally appealed the circuit court's order to the court of appeals, and that court affirmed.SeePippinger v. Benson,2011 Ark. App. 442, 384 S.W.3d 614.They petitioned this court for review, which we granted.Upon granting a petition for review, this court considers the appeal as if it had been originally filed in this court.SeeDuncan v. Duncan,2011 Ark. 348, 383 S.W.3d 833.There are three points on appeal: (1) that the circuit court erred in allowing Doris and Bertie to intervene in the adoption proceeding; (2) that the circuit court erred in granting Doris and Bertie grandparent and great-grandparent visitation; and (3) that the circuit court erred in denying the petition for adoption.We reverse and remand the circuit court's award of grandparent and great-grandparent visitation, and we affirm the circuit court's denial of the petition for adoption.

The basic underlying facts are these.On July 21, 2009, Andrea filed a petition to adopt her stepson, J.P.The petition stated that J.P. was born December 28, 2006, and that his biological mother, Angela, died January 20, 2008.The same day the petition for adoption was filed, Derek, J.P.'s father, filed a consent to the adoption and waiver of appearance.In accordance with Arkansas Code Annotated § 9–9–212(f)(Supp.2007), a notice of the pending petition and its hearing date was issued to Doris and Gerald Benson, J.P.'s maternal grandmother and grandfather.

On September 24, 2009, the petition was called for a hearing.At the hearing, the circuit court observed that, while an affidavit of service reflected service on Doris and Gerald, no pleading had been filed by them challenging the adoption, or requesting relief; however, Bertie, J.P.'s great-grandmother, was present at the hearing.The circuit court agreed to then reset the matter for a special setting, rather than hearing the matter in the one hour previously allotted.It further advised Bertie that if “they” desired any action be taken on their behalf, they needed to be represented by an attorney and to file the proper pleadings.

On October 5, 2009, Doris and Bertie filed a petition for temporary and permanent grandparent and great-grandparent visitation in the domestic-relations division of the circuit court.¹In their petition for visitation, Doris and Bertie noted the stepparent-adoption matter that was pending and asked that the actions be consolidated or heard simultaneously.On October 6, 2009, Doris and Bertie filed an answer to the petition for adoption, motion to intervene, and third-party petition for grandparent and great-grandparent visitation.In response, Andrea filed a motion to strike Doris and Bertie's responsive pleading in the adoption proceeding on the basis that they lacked standing.After the circuit court consolidated both matters for the purpose of hearing evidence, a hearing was held at which the circuit court heard testimony and the arguments of counsel.The visitation petition was taken up first.

During the hearing, Bertie testified that after J.P. was born and Angela was discharged from the hospital, they went to her house and stayed there approximately six weeks while Angela recuperated from a Caesarean section.Bertie stated that after J.P. had surgery at Arkansas Children's Hospital, J.P. returned to his parents' home with them, where she stayed the night and she, Doris, and Gerald took turns helping with J.P.About three weeks after his surgery, J.P. was taken to Bertie's home, where he spent many nights, along with Angela and Derek.Bertie testified that Angela and Derek would often take J.P. for a few days at a time from her home and that the most he was away from her at one time was three to four days.During this time, Bertie testified, she and Doris were taking care of J.P., with Derek stopping by at night to check on him, unless it was too late; Angela was there every day and would spend the night.It was Bertie's testimony that during the first year of J.P.'s life, she had contact with him about ninety percent of the time.

Bertie stated that after Angela died on January 20, 2008, Derek took J.P. to stay at his mother's home.Bertie testified that after Angela's funeral, Derek would bring J.P. to Bertie and allow him to spend the weekend with her and Doris; they did so at Angela and Derek's mobile home into which she had temporarily moved at Derek's request.This arrangement was in place until August 2008, when, according to Bertie, Derek said he“needed some weekends.”After that, she stated, they usually were allowed to keep J.P. every other weekend.It was at this time that Bertie moved out of the mobile home and back to her home.Bertie testified that their every-other-weekend visits with J.P. ceased on October 31, 2008.She testified that Derek later allowed J.P. to attend church with her, and that in February 2010, he allowed J.P. to stay approximately three hours with her, Doris, and Gerald at her home, as her counsel described, “unsupervised.”

Bertie testified that they have been allowed to visit with J.P., typically, at Derek and Andrea's home “about every week on Tuesday nights usually for a while.”She stated that, while she had asked to take J.P. to her home or out to eat, Derek refused.She admitted, however, that they had been invited to birthday parties and other events involving J.P.

With respect to the adoption petition, Bertie testified that she did not think the adoption was in her great-grandson's best interest and that it was “too soon.”She testified that she believed it was in J.P.'s best interest to have “unsupervised” visitation with her and that she would abide by Derek's “rules.”She also stated her belief that if she was not awarded great-grandparent visitation, she did not think that she would have any future contact with J.P.However, Bertie admitted that neither Derek nor Andrea had told her that she could not see J.P. in the future, nor had they kept her from seeing J.P.; she stated that her visits had only been limited to every week at Derek and Andrea's home.

Doris, J.P.'s maternal grandmother, testified that the longest period of time that J.P. did not spend the night at Bertie's home between his birth and Angela's death was three nights.Doris testified that after a falling out with Derek and Andrea on November 3, 2008, she was finally allowed to see J.P. on Christmas night at Derek and Andrea's home, but that she no longer had any “unsupervised” visits with him.She, like Bertie, testified that she feared that if she were not granted visitation with J.P., she would not get to see him.She also testified that she would abide by any restrictions placed on the visitation by the circuit court.Also like Bertie, Doris stated that she did not think that the adoption was in J.P.'s best interest.She testified that while she still had contact with J.P., it was very little and that one hour each week was not enough.She stated that she wanted more visitation and that she wanted that visitation to be “unsupervised”; however, she admitted, she and Bertie were allowed a three-hour visit with J.P. on February 12, 2010, and they were also allowed by Derek to take J.P. to church.

Gerald, J.P.'s maternal grandfather, testified that he did not join in the petition for visitation because he believed Derek “would come around and do what's right.”Gerald stated that he hoped that he would be able to see J.P. more in the future.

Derek testified that he and Angela married in January 1999 and that J.P. was born on December 28, 2006.He testified that he, Angela, and J.P. stayed at Bertie's home for about a week after J.P. was born and that they also stayed there after J.P. had surgery at Arkansas Children's Hospital.Derek disputed Bertie's claim that J.P. was with her ninety percent of the time his first year.He agreed that J.P. was at Bertie's home almost every weekend and explained that this was because Angela wanted J.P. to spend time with Gerald, who worked out of town during the week.He further testified that J.P. also spent a night or two sometimes at Bertie's during the week.

Derek denied that he had restricted or limited Doris's and Bertie's contact with J.P.He agreed, however, that, with some exceptions, there were no longer “unsupervised” visits and that their contact with him was less than what it had been.He testified that, after Angela's death, he hired Andrea to babysit J.P.He stated that he and Angela had discussed such an arrangement prior to her death.

Derek testified that he began dating Andrea six months after Angela's death.He stated that he then moved in with her, and that, on May 23, 2009, they were married.It was his testimony that it was merely coincidental that the decrease in J.P.'s time with Doris and Bertie coincided with the time that he started living with Andrea.He testified that after his dispute with Doris on November 3, he stopped allowing J.P. to go to Bertie's because he knew Doris would be there, and he was upset with Doris.He contended that the argument with Doris had to do with the cleanliness of his mobile home.

Derek further stated that when he allowed the visits at his home, neither he nor Andrea supervised them; he testified that he and she went into the kitchen and that they made sure Andrea's children...