Bemis v. Hare

• Decision Date: 05 November 1986
• Docket Number: No. CA,CA
• Citation: Bemis v. Hare, 718 S.W.2d 481, 19 Ark.App. 198 (Ark. App. 1986)
• Parties: Ralph T. BEMIS and Debra Hare Bemis, Appellants, v. Freddie M. HARE, Appellee. 86-197.
• Court: Arkansas Court of Appeals

Page 481

718 S.W.2d 481

19 Ark.App. 198

Ralph T. BEMIS and Debra Hare Bemis, Appellants, v. Freddie M. HARE, Appellee.

No. CA 86-197.

Court of Appeals of Arkansas En Banc.

Nov. 5, 1986.

Walls Law Firm by Charles A. Walls, Jr. and J. Michael Stuart, Lonoke, for appellants.

Hale, Ward, Young, Green & Morley by Milas H. Hale, N. Little Rock, for appellee.

CORBIN, Judge.

Appellants, Ralph T. Bemis and Debra Hare Bemis, appeal a ruling by the Probate Court of Lonoke County denying their petition for adoption of a child, David Paul Hare, age 12, who was born during the marriage of appellant Debra Hare Bemis to appellee, Freddie M. Hare. We reverse and remand.

The evidence was undisputed that from October 1983, to the time of trial no support was paid by appellee, the natural father. Appellee, who is in the Air Force, testified that he voluntarily chose not to pay the child support and discontinued his military dependent allotment. It was also undisputed that appellee did not visit nor communicate with the child in any manner from October of 1983 to the time of the hearing in February of 1986. However, the trial court ruled that appellee had justifiable cause not to do so, and denied appellants' petition for adoption.

Appellants argue on appeal that (1) the court erred in holding appellee's consent to the adoption was required; (2) the court erred in finding that it would be in the best interest of the child to deny the petition; (3) the court erred in allowing testimony of inadmissible settlement negotiations; and, (4) the court abused its discretion in questioning the child over appellants' objection.

Ark.Stat.Ann. § 56-206 (Supp.1985) provides that the natural parents must generally consent to an adoption for it to be valid. Exceptions are set forth in § 56-207(a)(2) (Supp.1985) which provides as follows:

(a) Consent to adoption is not required of:

(2) 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 (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;

It is well settled that statutory provisions involving the adoption of minors are strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark.App.1980). The holding of the supreme court in Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979), places a heavy burden upon the party seeking to adopt a child without the consent of a natural parent of proving by clear and convincing evidence that the parent has failed significantly or 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. Clear and convincing evidence has been defined as being:

Evidence by a credible witness whose memory of the facts about which he testifies is distinct and whose narration of the details thereof is exact and in due order and whose testimony is so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the facts related is clear and convincing.... This measure of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt.... It is simply that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.

Kelly v. Kelly, 264 Ark. 865, 870, 575 S.W.2d 672, 675-676 (1979) (citations omitted). "Failed significantly" does not mean "failed totally" but the failure must be a significant one as contrasted with an insignificant one. It denotes a failure that is meaningful or important. "Justifiable cause" means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Henson v. Money, 1 Ark.App. 97, 613 S.W.2d 123, aff'd, 273 Ark. 203, 617 S.W.2d 367 (1981).

In Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark.App.1980), the court of appeals reversed the dismissal of the appellants' petition for adoption. In holding the natural father's consent was not required under the circumstances, we stated The obvious purpose of the applicable statute [Ark.Stat.Ann. § 56-207] is to provide a child with a real father instead of one who, by his conduct, has proven to be a father by blood only. Although the legislature cannot force a man to be a father within the proper meaning of that term, it can and has afforded a judicial method whereby a child may have an opportunity to experience the benefits of having a real father by adoption. Our statute permits the courts, where the proper circumstances present themselves, to grant a petition for adoption to petitioners who demonstrate true love, affection and care for a child, regardless of the arbitrary dissent by a natural father.

Id. at 521, 606 S.W.2d at 81 (citations omitted).

While we review probate proceedings de novo on the record, it is well settled that the decision of the probate judge will not be disturbed unless clearly erroneous (clearly against the preponderance of the evidence), giving due regard to the opportunity and superior position of the trial judge to judge the credibility of the witnesses. ARCP Rule 52(a); Henson v. Money, supra.

Custody of David had been awarded to appellant Debra Bemis and appellee was ordered by the divorce decree dated June 1, 1976, to pay $100 per month for David's support. Appellant Debra Bemis and appellee were subsequently involved in litigation over David in reference to child support arrearages and problems with visitation. Appellee was ordered to increase his child support payments to $150 per month and the arrearages were reduced to judgments against him. Argument of counsel for appellants reflects that the judgments for arrearages totalling in excess of $10,000 were unsatisfied at the time of the hearing in February of 1986.

Appellee testified that he wanted to support his child and that he would like to see him on a regular basis. He acknowledged his love for his son and indicated that he was willing to place the support on his military allotment again. During cross-examination, appellee admitted that he had made no effort to see his son since October of 1983; that he missed scheduled visitation with his son and could not remember if he had notified appellant Debra Bemis that he would not be exercising his visitation; and that he had not given his son a Christmas present since 1982 nor had he called David or done anything for David on his birthdays as of 1982. Appellee acknowledged that his son seemed to receive good care from appellants and that he was a child to be proud of. Appellee was questioned by the court in regard to his voluntary suspension of allotment payments and stated that he took that action because it was getting harder to get David. Appellee testified that each time he went to appellants' home to pick up David, appellant Debra Bemis had David ready to go and his suitcase packed. Appellee stated that on one occasion he had to physically pick David up, who was screaming and kicking, and put David in the truck. Appellee noted that a lot of times David would run from appellee while still in the house. However, appellee unequivocally testified that appellant Debra Bemis never physically prevented his exercise of visitation with David.

Appellant Debra Bemis testified that David was two years of age at the time of her divorce from appellee. She married appellant Ralph Bemis on June 16, 1976. She stated that appellee had not made regular visits with David since 1981. She would have David ready each time and on many occasions appellee would not show up. Appellant Debra Bemis acknowledged that there had never been any birthday or Christmas cards or Christmas presents sent to David by appellee. She described the relationship between her husband and David as that of a father and son. They did a lot of things together and were very happy.

Appellant Ralph Bemis testified that he had lived with David since he was two years of age and had enjoyed the relationship of father and son with him since that time. He was a Boy Scout leader of David's troop and enjoyed hunting, fishing and other sports with David. Appellants had two daughters, aged three and six, in their home. He stated he was financially able to support David.

Appellee's mother testified that she loved her grandson and wanted to visit him. She stated that she and her husband had filed petitions seeking visitation rights with David several times. Mrs. Hare testified that she was unsuccessful in exercising those visitation rights. She described the events which took place in appellants' home during times she attempted to exercise her visitation with David. She stated there was always a "scene". She would ask for David and appellant Debra Bemis would tell Mrs. Hare that David was in the house. Mrs. Hare would ask David and David would refuse to go with her. She and her husband had not visited with David since 1983.

The probate judge made specific findings in his order denying appellants' petition for adoption and the following are his findings which are pertinent to the issue of appellee's failure to support or communicate with David in excess of one year:

....

(5) The respondent, Freddie Max Hare, has not visited with the child nor paid support for over one year, however, the Court believes in this case the action was justified within the meaning of A.S.A. 56-207.

(6) From the Court's view of the witnesses, it is believed that Debra S. Bemis did everything possible to avoid collecting support from the natural father, Mr. Hare, in order to effect an adoption. That Mr. Hare was led to believe that he should not pay support since he was unable to have visitation with the child, without greatly upsetting him. The Court accepts Mr. Hare's...