Harper v. Caskin

• Citation: 265 Ark. 558,580 S.W.2d 176
• Decision Date: 23 April 1979
• Docket Number: No. 78-301,78-301
• Parties: Carthal Deane HARPER and Loraine Harper, Appellants, v. James Dennis CASKIN, Appellee.
• Court: Supreme Court of Arkansas

Page 176

580 S.W.2d 176

265 Ark. 558

Carthal Deane HARPER and Loraine Harper, Appellants, v. James Dennis CASKIN, Appellee.

No. 78-301.

Supreme Court of Arkansas, In Banc.

April 23, 1979.

Henry & Graddy, Conway, for appellants.

Josh E. McHughes, Little Rock, for appellee.

BYRD, Justice.

Appellants, Carthal Deane Harper and Loraine Harper, the stepfather and mother of James Dennis Caskin, Jr., a minor, sought to adopt James Dennis Caskin, Jr. without the consent of the minor's father, appellee James Dennis Caskin. In doing so appellants relied upon Ark.Stat.Ann. § 56-207(a)(2) (Supp.1977), which provides:

"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 (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 required by law or judicial decree, . . ."

The trial court denied appellants' petition finding that "it has not been shown that the Respondent . . . failed for a period of (1) year, significantly without justifiable cause to communicate with and/or provide care and support for James Dennis Caskin, Jr."

The record shows that appellee and appellant, Loraine Harper, were formerly husband and wife. James Dennis Caskin, Jr. was born to that marriage. Appellee and Loraine were divorced in July, 1973, and Loraine was awarded custody of James Dennis Caskin, Jr. Loraine married appellant Carthal Deane Harper in December, 1973. A prior petition for adoption was dropped in 1975.

Carthal Deane Harper testified that he had not communicated with appellee in the past two years. He did not remember receiving any support from appellee since January of 1977. He did not know of any communications his wife may have had with appellee.

Loraine Harper, the natural mother, testified that she did not recall communicating with appellee between Christmas of 1976 and the filing of the petition in March, 1978. The last child support she received from appellee was $100 in January, 1977. She remembered calling appellee once in North Carolina, but she did not remember the date. Appellee had visited with the child three or four times since April of 1978. She is presently under court orders to let appellee visit with the child.

Carolyn Caskin, the wife of appellee, testified that Mrs. Harper called her landlord in North Carolina in June of 1977 but that Mrs. Harper refused to talk to her when she called Mrs. Harper back. The Caskins sent $50 in July, 1977, when appellee was in the hospital. Appellee, while in the Armed Services, developed epileptic seizures in October, 1976, and was in and out of the hospital during 1977. Appellee was severed from the Marines in October, 1977, with a lump sum payment of.$19,000. Appellee is now an out patient at the V. A. Hospital in Little Rock. Mrs. Caskin says that she and appellee had visitation problems with Mrs. Harper. They did not contact her about visitation upon returning to Little Rock in November, 1977, because they thought it would do no good. When they did visit, Mrs. Harper required that the visiting be done in Mr. Harper's home. Appellee is still having seizures and has been unable to obtain employment since his discharge.

Appellee testified that he made his child support payments in 1975 and 1976. He last visited the child Thanksgiving, 1975. Mrs. Harper has prevented him from seeing the child since that time. Mrs. Harper called him in June, 1977, and told him that she needed $300 because the child was sick. At the time he was in the hospital receiving only one-half pay; he sent $50 in July, 1977. He could only communicate with his child through Mrs. Harper. He did not ask to speak to the child because he thought it would do no good. He had had three seizures since returning to Little Rock in November, 1977, and has been an out patient from the V. A. Hospital since returning to Little Rock. He is not presently working and has no income. He has visited the child four times since April, 1978. He says the child is entitled to V. A. benefits, but Mrs. Harper told him she was not interested in V. A. benefits.

On rebuttal Mrs. Harper said she had been reluctant to let the child visit with appellee over night because he was not properly cared for on one occasion when he was sick.

In arguing that the trial court erred, appellants accentuate the small amount of child support paid during the 12 months preceding the filing of the petition and the lack of communication and argue that under the statute, Supra, they are entitled to adopt without the parent's consent when the parent has "substantially" failed in his legal duty to be a parent for a period in excess of one year. In making their contentions, appellants overlook the provision of the statute which requires that the parent's failure to support and communicate be "Without justifiable cause. . . . " They also overlook the heavy burden of proof placed upon one wishing to adopt a child without the consent of the parent, I. e., by clear and convincing evidence. See In re Cozza, 163 Cal. 514, 126 P. 161 (1912) and In re Adoption of Porras, 13 A.D.2d 239, 215 N.Y.S.2d 778 (1961).

With respect to the burden cast upon one wishing to adopt a child against the consent of a parent, 2 Am.Jur.2d Adoption § 60 states:

"The judge before whom an application or petition for adoption is brought must determine from extrinsic evidence whether, under the circumstances of the case, the consent of the natural parent of the child is necessary to adoption, and if required whether that consent has been given. In order to grant an order or decree of adoption in opposition to the wishes and against the consent of the natural parent, the conditions prescribed by statute which make that consent unnecessary must be clearly proven and the statute construed in support of the right of the natural parent. Natural rights of parents should not be passed over lightly, even though the court is given power to enter decree of adoption without the consent of the parent or guardian when the judge considers that the best interests of the child will be promoted. The law is solicitous toward maintaining the integrity of the natural relation of parent and child, and where the absolute severance of the relation is sought without the consent and against the protest of the parent, the inclination of the courts is in favor of maintaining the natural relation.

Where the controversy is whether the parent has abandoned the child so as to dispense with the necessity of his consent, the burden of proof is on the petitioner to justify the adoption on that ground, and it is often said that the evidence to show abandonment must be clear and convincing. . . . "

In 2 C.J.S. Adoption of Persons § 96 under the title "Weight and Sufficiency of Evidence" the matter is stated:

"In an adoption proceeding contested by a natural parent the facts justifying the adoption must be established by clear and convincing evidence."

In People ex rel. Buell v. Bell, 20 Ill.App.2d 82, 155 N.E.2d 104, the burden is stated:

" . . . Adoption, which affects the course of inheritance, deprives the child of the place in which it was placed by nature, and by force of law thrusts the child into another relationship, while severing conclusively the rights and interests of the natural parents, is a very different, and more drastic matter then a change of custody; the rights of natural parents to their children must not be terminated unless a clear and convincing case is made in strict compliance with the adoption statute . . . ."

In re Cozza, 163 Cal. 514, 126 P. 161 (1912), the burden on one wishing to adopt a child without the consent of a parent is stated:

"The power of the court in adoption proceedings to deprive a parent of his child being in derogation of his natural right to it, and being a special power conferred by the statute, such statute must be strictly construed, and in order to warrant the exercise of the special power and sustain an order for adoption made in opposition to the wishes and against the consent of the natural parent on the ground that conditions prescribed by statute exist which make that consent unnecessary, the existence of such conditions must be clearly proven, and the evidence bring them within the terms and intent of the statute. 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. . . . "

When we consider that the failure of the parent must be Without justifiable cause, we cannot say that the trial erred in holding that appellants had not sustained the heavy burden of proof placed upon them.

Affirmed.

HARRIS, C. J., and FOGLEMAN, J, concur.

FOGLEMAN, Justice.

I concur in the affirmance of the judgment denying the petition for adoption, because I cannot say that the finding that it had not been shown that the natural father's failure to communicate or to provide care and support for the child was without justifiable cause is clearly against the preponderance of the evidence. I feel that the portion of the opinion relating to the quantum of proof required is not only unnecessary to the decision, it is also an issue raised by the court and decided without the benefit of adversary advocacy.

Ordinarily, when there is a division of authority and the majority of the court elects to follow a majority rule or the weight of authority, I feel that I should accept that position. In this case, I cannot accept the requirement that there must be clear and convincing evidence to show that the consent of a parent to an adoption may be dispensed with in considering a petition for the...