IN RE ADOPTION OF MKC

• Decision Date: 05 March 2009
• Docket Number: No. 08-1367.,08-1367.
• Citation: 2009 Ark. 114,313 S.W.3d 513
• Parties: In re ADOPTION OF M.K.C.
• Court: Arkansas Supreme Court

313 S.W.3d 513

2009 Ark. 114

In re ADOPTION OF M.K.C.

No. 08-1367.

Supreme Court of Arkansas.

March 5, 2009.

Sanford Law Firm, PLLC, by: Josh Sanford, Russellville, for appellant.

JIM GUNTER, Justice.

This is a second appeal which arises from an order of the Pope County Circuit Court denying an adoption petition filed by Appellant Callie Michelle Cox to adopt her biological child, M.K.C. We affirm.

In the first appeal, Appellant asserted that the circuit court erred in denying her petition for adoption by ruling that Arkansas Code Annotated section 9-9-204(3) (Repl.2002) does not permit an unmarried natural mother to adopt her own child. On June 5, 2008, we reversed the order of the circuit court and remanded the case for a consideration of the adoption petition on the merits. See In re Adoption of M.K.C., 373 Ark. 603, 285 S.W.3d 605 (2008) (M.K.C. I). Citing the reasoning set forth in King v. Ochoa, 373 Ark. 600, 285 S.W.3d 602 (2008), handed down the same day, we held that the circuit court erred in its interpretation of § 9-9-204 and that the statute does permit an unmarried parent to adopt his or her biological child. On remand, the circuit court denied the adoption as not in the best interest of the child. Appellant now brings this appeal.

On appeal, Appellant asserts that the decision of the circuit court that the adoption of M.K.C. was not in the best interest of the child was clearly against the preponderance of the evidence, and the court's denial of Appellant's petition for adoption was clearly erroneous. Specifically, Appellant contends that (1) the circuit court erred in its application of Ark.Code Ann. § 9-9-215(a)(1) and (a)(2); (2) Appellant met all requirements of the Arkansas adoption statutes; and (3) the trial court erred in its dismissal of Appellant's testimony as to abuse by the biological father.

Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child. In re Adoption of A.M.C.; Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). We will not reverse a circuit court's decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the circuit court to judge the credibility of the witness. In re Adoption of A.M.C., 368 Ark. 369, 246 S.W.3d 426 (2007); In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).

Arkansas Code Annotated § 9-9-215 (Repl.2002) states, in pertinent part:

(a) A final decree of adoption and an interlocutory decree of adoption which has become final, whether issued by a court of this state or of any other place, have the following effect as to matters within the jurisdiction or before a court of this state:

(1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes. This includes inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship. . . .

(2) To create the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.

The circuit court found that, under § 9-9-215(a)(1) the effect of the adoption would impact the child's relationship with the biological father because the relationship would involve the child's right to support and inheritance.

In determining the best interest of the child, the court weighed the benefit of the child that would result from a separation from a biological father with which the child currently has no relationship against the detriment to the child that would result from the loss of support, right to seek support, and the right of inheritance. The court stated that the loss of a relationship that does not exist between the father and child "cannot be given much weight" as it "would require speculation." The court went on to say that, as to the severance of the child's right to receive financial support and inheritance, "the Court is without evidence as to the father's financial circumstances or that of his family." "To provide any substantial weight in this regard would require speculation on the part of the Court."

In applying § 9-9-215(a)(2), the circuit court found that Appellant is the natural mother and "the relationship contemplated under this subsection already exists." The court then weighed the effect of § 9-9-215(a)(1) against the benefit to the child resulting from the creation of the relationship contemplated in § 9-9-215(a)(2). The court found that, because "the child currently enjoys all aspects of the relationship contemplated in that section," the child does not gain anything from an adoption decree under § 9-9-215(a)(2). The court afforded "little, if any, weight" to the creation of such a relationship in its analysis.

The circuit court concluded that, when applying the statutory effect of the adoption to the circumstances at issue here, the adoption was not in the best interest of the child. On appeal, Appellant contends that the circuit court's decision on remand does not adhere to this court's mandate in the first appeal. We disagree. Our opinion in M.K.C. I simply reiterated that the plain language of section 9-9-204 allowed a natural parent to adopt his or her own child. Here, we conclude that it is appropriate for the circuit court in a best-interest-of-the-child analysis to consider the relative benefits or detriments of a child, including those set out by the General Assembly.

In addition to the statutory considerations addressed above, the circuit court had before it certain testimony. Appellant testified that she was unmarried and that the child has no legal father. No man has ever lived with her and/or the child and no man has ever provided for the child. No one has ever identified himself in a sworn document as the father or has ever registered with the putative father registry claiming to be the father. Appellant testified that she and the father were in a relationship for about three months. According to Appellant, he started using drugs and alcohol and would rape her every night. She also testified that he would hit her and his children. He would drink to the point that he would become abusive and then drink to the point that he would pass out. She testified that his children would splash in the bathtub and he would hit them with a leather belt while they were naked because he thought it was annoying. Appellant stated that she would fear for the welfare of her child if she had any contact with the father. Appellant's mother, Kay Cox, has guardianship of the child because Appellant was having medical problems and was unable to care for the child. Appellant has always retained physical custody of the child. Kay Cox filed a consent on June 30th to the adoption proceeding. Appellant testified that she has the facilities and resources suitable to continue to provide for the care and nurture of the child. She stated that she wanted the court to terminate the prospective rights of any person who would claim to be M.K.C.'s father.

Appellant's mother testified that she had no reason to believe that Appellant was untruthful about the father's drinking, his drug use, his criminal history, or the kind of physical abuse that he perpetrated on his own children. She also stated that she had heard Appellant's allegations against the father from the time that Appellant told her that she was pregnant. However, she "was not around for much of the things Appellant talked about."

The circuit court found that Appellant's testimony regarding the rape and abuse to her and the abuse by the father of his children was not credible. Specifically, the court noted that when it came time to allege the multiple rapes by the child's father, Appellant was "unable to do so with any degree of veracity." The court also found that her lack of credibility continued through the allegations of drug use, alcohol use, and physical abuse of his two small children. "This lack of credibility combined with the complete absence of any supporting testimony, documentation, or other evidence as to the acts alleged, results in the allegations being afforded no weight in the Court's determination of the best interest of the child."

In order to grant the adoption petition, the circuit court must find that there is clear and convincing evidence that the adoption is in the best interest of the child. See In re Adoption of A.M.C, supra. We note that although the child's father lived with Appellant for three months, he is not named. No paternity has been established. We also note the absence of corroborating testimony or evidence as to Appellant's allegations regarding the father's use of alcohol and drugs or the father's abuse of his children, other than what Appellant told her mother. The circuit court is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. See Posey v. Ark. Dep't of Health & Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). We give great weight to a trial judge's personal observations when the welfare...