McKee v. Bates, CA

• Decision Date: 30 November 1983
• Docket Number: No. CA,CA
• Citation: McKee v. Bates, 661 S.W.2d 415, 10 Ark.App. 51 (Ark. App. 1983)
• Parties: Kim Bates McKEE and Larry McKee, Appellants, v. Michael BATES, Appellee. 82-465.
• Court: Arkansas Court of Appeals

Page 415

661 S.W.2d 415

10 Ark.App. 51

Kim Bates McKEE and Larry McKee, Appellants, v.Michael BATES, Appellee.

No. CA 82-465.

Court of Appeals of Arkansas.

Nov. 30, 1983.

Bob Keeter, Mena, for appellants.

Maddox & Miller by David Maddox, Mena, for appellee.

COOPER, Judge.

The appellant, Kim (Bates) McKee, and the appellee, Michael Bates, were married in 1972 and lived together one day before they separated.One child, Patrick John Bates, was born of the marriage on January 29, 1973.They were divorced on October 5, 1973.Kim (Bates) McKee then married the appellant, Larry McKee, on February 11 1974.One child, Charity, was born of this marriage.Patrick was in the sole custody of the appellants until January 8, 1979, when the appellants divorced.After their divorce, Kim McKee had custody of both children.Larry McKee supported both children during this period and visited the children on a regular basis.In October, 1980, both children went to live with Larry.Kim gave Larry custody of Charity and a Special Power of Attorney to authorize Larry to care for Patrick.

The appellee admittedly did not communicate with or support Patrick from 1973 through 1979.Although the appellee did see Patrick occasionally in 1980, he did not furnish any support.In 1981, the appellee did not see or support the child until October, when he filed a petition for change of custody.The appellants answered the petition and also filed a petition for adoption in probatecourt.Kim had given her written consent to Larry to adopt Patrick.The matters were combined for trial.On the day of trial, March 31, 1982, the appellants amended their petition to request that custody of Patrick be granted to Larry or, in the alternative, to Kim, should the adoption petition be denied.After hearing the evidence, the probate judge denied the adoption based on a finding that it would not be in the best interest of Patrick, but granted custody of the child to Larry, subject to reasonable visitation and child support payments by the appellee.The appellants appeal the denial of the petition for adoption.The appellee cross-appeals the denial of his custody petition.

For their first two points for reversal, the appellants' argue that the probate judge erred in denying the petition for adoption because they had proven by clear and convincing evidence that the appellee had failed, without justifiable cause, to support or communicate with the child, and thus the appellee's consent was not required for the adoption.The appellants rely on Ark.Stat.Ann. § 56-207(a)(2)(Supp.1983), 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 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.

This statute will allow an adoption over the objections of a nonconsenting natural parent, but only if all of the elements are proven by clear and convincing evidence.Since the probate judge determined that, considering the best interests of the child, the adoption should not be granted, he appears to have found it unnecessary to determine whether the appellant's consent was necessary.Therefore, we need not address this issue.However, we note that even if the trial court had decided that the father's consent was unnecessary, such a finding would not require that the adoption be granted.Before an adoption petition may be granted, the probate judge must find that the adoption is in the best interest of the child.SeeWatkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78[10 Ark.App. 54](Ark.App.1980).In this case, the probate judge found that, although the appellee had not supported or communicated with his son and by his conduct might deserve termination of his parental rights, he was unwilling to sever the appellee's parental relationship with his son.The probate judge found that the child knew of his natural father and should have the opportunity to know his natural father.Therefore, it is evident that the trial court, after observing the parties, refused to grant the adoption because he believed to do so would not be in the child's best interest, though he did grant custody to McKee.

In adoption proceedings, this Court reviews the record de novo, but we will not reverse the probate judge's decision unless it is clearly erroneous or against a preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses.Rule 52, ARCP;Henson v. Money, 273 Ark. 203, 617 S.W.2d 367(1981).After reviewing the evidence as required, we cannot say that the probate...