Neel v. Harrison

• Decision Date: 14 December 2005
• Docket Number: No. CA 05-248.,CA 05-248.
• Citation: 220 S.W.3d 251
• Parties: Janie NEEL, Appellant, v. Denise C. HARRISON, Appellee.
• Court: Arkansas Court of Appeals

220 S.W.3d 251

Janie NEEL, Appellant, v. Denise C. HARRISON, Appellee.

No. CA 05-248.

Court of Appeals of Arkansas, Division I, II, IV.

December 14, 2005.

Legal Aid of Arkansas, by: Margaret Reger, Harrison, for appellant.

Osmon & Ethredge, P.A., by: David L. Ethredge, Mt. Home, for appellee.

JOHN B. ROBBINS, Judge.

Appellant Janie Neel appeals the entry of a decree by the Baxter County Circuit Court on November 9, 2004, granting the adoption of her eight-year-old daughter Jessica by Jessica's stepmother, appellee Denise Harrison. Appellant contends on appeal that the trial court clearly erred (1) in finding that appellee proved by clear and convincing evidence that appellant's consent to the adoption was not necessary, and (2) in then finding that granting the adoption was in the child's best interest. We hold that the trial court clearly erred as to point one on appeal, which mandates that we reverse. Therefore, we do not reach the second issue on appeal.

The facts leading to the present appeal are not in material dispute. Jessica was born to appellant Janie and her then-husband Aaron on December 15, 1995. Janie and Aaron divorced in 1996, and Janie was granted custody at that time. Aaron married appellee Denise in 1998; they eventually bore a daughter of their own. Janie also remarried and bore another child within that marriage. On one occasion in 1999, Janie learned that her husband Joe had thrown Jessica against the wall in their home. Janie called for help and filed a police report; Joe was incarcerated for his actions. This led to Janie and Aaron entering into an agreement that Aaron would have custody of Jessica with Janie having alternate weekend visitation. This agreement was approved in an agreed order filed on December 11, 2000, in their Baxter County domestic relations case. There is no dispute that Aaron did not ask for child support, and the agreed order was silent as to child support. The agreed order stated that Joe was not to be around Jessica unless Janie or other family members were present.

Janie's husband Joe was thereafter released from imprisonment and returned to their marital home. Aaron and Denise harbored concerns after Joe was back in the home, so Aaron and Denise allowed Janie sporadic weekend visitation, but only during the daytime when Joe worked so that Jessica would not be exposed to him. Janie admittedly sought a protective order against Joe one time in April 2001 due to him physically attacking her, not the children. Also in 2001, Aaron and Denise separated. Denise took their daughter and Jessica into her physical custody. By December 2002, Aaron and Denise did not permit Janie to see Jessica due to their belief that Janie had multiple boyfriends with checkered pasts and due to suspicions of drug use. However, Janie gave Jessica presents that December for her birthday. After December 2002, Janie was not allowed to see Jessica, despite phone calls, showing up at Aaron's work and Denise's home, and despite showing up at Jessica's school yard. Aaron and Denise simply did not think that Janie was stable enough to provide a safe and nurturing environment for Jessica. Janie admittedly gave up in her efforts for most of 2003 because she was tired of being criticized for being a bad mother and tired of being denied her child. She said she did not have the money for an attorney to enforce her visitation rights. In October 2003, Janie asked to have Jessica for a visit because Jessica's half-sister was celebrating a birthday; this visit was also not allowed. In November 2003, Janie said she came to Denise and demanded to be allowed her court-ordered weekend visitation, which was denied. In December 2003, Janie attained representation through legal aid and filed a motion in the domestic relations action seeking to modify the December 2000 custody order. In that motion, Janie sought to change custody to her arguing that Aaron had effectively abandoned Jessica to his estranged wife when they separated in 2001 and furthermore he had denied her access to Jessica.

On January 28, 2004, Denise filed a new action in probate court seeking to adopt Jessica. She appended Aaron's consent to the adoption and alleged that Janie had not seen or supported Jessica for a year. In February 2004, Janie responded by denying that she would consent to the adoption, specifically noting that she was prevented from seeing her daughter, and asking that the domestic relations and adoption proceedings be consolidated. There is no indication that the cases were ever consolidated.

The hearing on the adoption petition was conducted in May 2004, resulting in the order on appeal. At that time, Denise and Aaron were still married but had been separated for three years. Aaron lived apart from Denise and had a girlfriend. The testimony reflected that Janie was not an ideal mother with multiple boyfriends and different fathers for each of her three children. Janie was presently raising her newest baby with a boyfriend who was not the biological father, and she did not have the financial means to provide a home for herself and her children without needing roommates. Janie explained that she worked sixteen hours per week at a minimum wage job, but half of her earnings went toward rent, and the rest went to pay other bills, including old medical bills. Janie said that she was prevented from seeing Jessica no matter how much she protested, and she recalled giving Jessica some gifts in 2002, including a fish tank, a blanket, and some clothing. Janie had also tried to deliver flowers to Jessica at school in December 2003, but Aaron told the school not to accept them. Janie agreed she did not send Aaron or Denise child support money, but she explained that she was not under any court order to do so and had not been specifically asked.

Aaron and Denise admitted worrying about Jessica when she was in Janie's care, particularly with history of the incident with Janie's former husband. Aaron and Denise did not deny that they, either separately or together, did not want Jessica around Janie very much and especially without supervision. They recalled that Janie saw Jessica in July 2002 when Janie bought her a fish and fish tank and a sleeping blanket and then on Jessica's birthday in December 2002, but that was the last time.

On this evidence, the trial judge announced that he found that there was clear and convincing evidence to show that appellant had failed significantly for at least a year to provide for the care and support of her daughter. The trial judge elaborated that he was not talking about "dollars and cents" but more about the efforts toward keeping the relationship alive. He found the token gifts in 2002 were not enough because failure had to be, not totally, but significantly. He stated that in spite of her ability, meaningful care and support was required but was lacking. Moving to the best interest of the child, the judge chastised Aaron for overt prevention of visitation but nonetheless focused on the best interest as between Denise as the "operative parent" and Janie. The judge specifically found Denise and her witnesses to be credible about lack of contact with the child, noting the gap between July 2002 and December 2002, and then a dramatic gap thereafter. The judge found Janie's life situation and choices to be marginal and sometimes risky. At the end, the judge concluded that Jessica's best interest was to stay with the parent she was and had been living with-Denise. The order granting the adoption was filed in November 2004, and a timely notice of appeal followed.

"Adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence." In re Adoption of Lybrand, 329 Ark. 163, 169, 946 S.W.2d 946, 949 (1997). We review adoption proceedings de novo, and the trial court's decision will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial court to determine the credibility of the witnesses. Vier v. Vier, 62 Ark.App. 89, 93, 968 S.W.2d 657, 659 (1998). See also Ray v. Sellers, 82 Ark. App. 530, 120 S.W.3d 134 (2003). The statute at issue is Ark.Code Ann. § 9-9-207(a)(2) (Repl.2002), which provides in pertinent part that:

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[.]

(Emphasis added.)

A year accrued before the petition in January 2004 where non-support could be found. Nor is there an issue of whether appellant paid child support; she did not. What she did provide was meager such that the trial court did not clearly err in finding her failure to support "significant." It is not required that a parent fail "totally" in these obligations in order to fail "significantly" within the meaning of the statutes. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). It denotes a failure that is meaningful or important. See id. Therefore, the question on appeal is narrowed to whether appellant's failure was without justifiable cause, which has been interpreted as "intentional" or "willful." Manuel v. McCorkle, 24 Ark.App. 92, 749 S.W.2d 341 (1988). We hold that on these unique facts, the trial court clearly erred in finding the petitioner to have presented clear and convincing evidence that appellant's significant failure to provide for the care and support of the child was without justifiable cause.

There is no dispute that the divorce proceedings and orders therein did not command her to pay child support. Aaron admitted that he did not ask for child support when they agreed to a change in custody in December 2000.¹ Janie argues that she relied on...