Pender v. McKee

Decision Date19 June 1979
Docket NumberNo. 78-127,78-127
Citation266 Ark. 18,582 S.W.2d 929
CourtArkansas Supreme Court
PartiesArch PENDER III, Arch Pender, Jr., Maxine Pender and Brenda Pender, Appellants, v. Eugene McKEE and Dorothy McKee, Appellees.

DeLoss McKnight, Wynne, for Arch Pender, Jr., Maxine Pender and Arch Pender III.

Giles Dearing, Wynne, for Brenda Pender.

B. Michael Easley, Forrest City, for appellees.

FOGLEMAN, Justice.

This appeal was taken by the father and paternal grandparents of Belinda Jean Pender from a decree of adoption entered March 6, 1978, in the Probate Court of St. Francis County for her adoption by appellees Eugene McKee and Dorothy McKee. The McKees have resided in St. Francis County for approximately 15 years. The child was born on October 16, 1975, to Arch Arthur Pender III, then 21 years of age and Brenda Kay Wyers Pender, then 19 years of age. Both the parents and all the grandparents of Belinda were then residents of Cross County. These parents were separated at the time of Belinda's birth, or shortly thereafter. Belinda was born prematurely and survived only with considerable difficulty. She was born in the Cross County Hospital at Wynne and kept there in an incubator about 30 days. For three days after her mother and paternal grandmother took her from the hospital, the child was having trouble breathing and suffering seizures, so they took her to a physician, and, upon his recommendation, took her to a hospital, where she remained for some time. By agreement with the parents, the child, then three months old, was taken from the hospital by Arkansas Social Services and immediately placed in the home of appellees, on December 15, 1975, where she was kept for six to ten months.

Arkansas Social Services took Belinda from the McKees and returned her to her parents. In December, 1976, the parents were separated and Belinda's mother Brenda, who is also an appellant, brought her, along with her two brothers, one older and one younger than she, to the home of Mr. and Mrs. Arch Pender, Jr., her paternal grandparents, where they remained until May, 1977. Arkansas Social Services filed a petition in the Juvenile Court of Cross County, alleging that neither the maternal grandmother's home nor the paternal grandparents' home was a suitable place in which to raise these children. As a result, the juvenile court ordered the children removed from the Pender home and put in the custody and under the control of Arkansas Social Services, where they remained for about four months. The juvenile court specifically found that the home of the paternal grandparents was crowded, unclean and unsanitary, and that the parents had separated on several occasions.

A petition was later filed by the paternal grandparents for a return of the children to their custody. On September 27, 1977, the juvenile court granted this petition, subject to continued supervision, or "protective surveillance," by Arkansas Social Services. Belinda remained with her paternal grandparents until removed by order of the Chancery and Probate Court of St. Francis County, entered March 30, 1978, in this proceeding, which had been commenced by the petition of the McKees for adoption of Belinda, filed December 28, 1977. This order was entered after the chancellor and probate judge had consolidated the adoption proceeding and a petition for habeas corpus filed by appellees in the Chancery Court of St. Francis County to obtain custody of Belinda after the order of adoption was granted.

Appellants argue that the order of adoption was granted without the consent required by statute. Neither the parents, nor the paternal grandparents, gave their consent. The probate court held that their consent was not necessary.

We have concluded that the consent of the Juvenile Court of Cross County was not necessary. The adoption proceedings were governed by the Revised Uniform Adoption Act (Ark.Stat.Ann. § 56-201 et seq. (Supp.1977)). Consent of the juvenile court would have been necessary only if there was no person lawfully entitled to custody of Belinda Or empowered to consent to her adoption. Ark.Stat.Ann. § 56-207(a)(3) and (4). The paternal grandparents were lawfully entitled to custody of the child. The requirements of Ark.Stat.Ann. § 56-206(a)(3) are alternatives. The use of the disjunctive "or" makes the legislative intent quite clear that consent can be given either by (1) any person lawfully entitled to custody of the minor or (2) any person lawfully empowered to consent to her adoption. That person clearly need not be both lawfully entitled to custody and lawfully empowered to consent. The purpose of the legislature to authorize one who has been empowered to consent to do so, without also being lawfully entitled to custody, is clear. Thus, it is clear that the paternal grandparents had the power to consent to this adoption, because they were lawfully entitled to her custody, so Ark.Stat.Ann. § 56-206(a)(4) never came into play.

Appellants did not assert any point for reversal upon the failure of the juvenile court to consent to the adoption and they did not contend in the original hearing in the adoption proceeding that it was necessary. In their brief, they did advance subsidiary arguments that the juvenile court order relied upon by the probate court was void because it was entered without notice to either the parents or the grandparents, and that the juvenile court was without power to consent to an adoption. The probate court did not base its order of adoption solely on the consent of the juvenile court. Its holding based upon that consent was more properly a "makeweight" or secondary reason for holding that the consent of the natural parents was unnecessary. The court's order had, before reciting this holding, stated that the natural mother had abandoned the child, that the natural father had, within the meaning of Ark.Stat.Ann. § 56-207(a)(1), effectively abandoned Belinda and, within § 56-207(a)(2), "for a period of at least one year has failed significantly without justifiable cause . . . to provide for the care and support of the child as required by law or judicial decree," and that the consent of the grandparents was not necessary because the juvenile court did not give them that power and the grandparents were unreasonably withholding their consent. Thus, we need only consider appellants' points for reversal, i. e.:

THE COURT ERRED IN GRANTING THE ADOPTION WITHOUT THE CONSENT OF THE FATHER.

II

THE COURT ERRED IN GRANTING THE ADOPTION WITHOUT THE CONSENT OF THE PATERNAL GRANDPARENTS WHO HAD CUSTODY OF BELINDA PENDER AND WHO WERE LAWFULLY ENTITLED TO CUSTODY.

III

THE COURT ERRED IN REFUSING THE MOTHER'S MOTION TO SET ASIDE THE ORDER OF ADOPTION FOR LACK OF JURISDICTION.

IV

THE COURT ERRED IN ITS FINDING THAT IT WOULD BE IN THE BEST INTEREST OF THE CHILD THAT THE PETITION FOR ADOPTION BE GRANTED.

I

The holding of the chancellor that Arch Pender III had abandoned Belinda is clearly against the preponderance of the evidence. Abandonment, in the sense of the adoption statutes, means conduct which evinces a settled purpose to forego all parental duties. Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326. Permitting his child to remain for a time undisturbed in the care of others does not constitute such an abandonment. Woodson v. Lee, supra; Walthall v. Hime, 236 Ark. 689, 368 S.W.2d 77, 79. In Walthall, we followed this dictionary definition of abandonment:

To relinquish or give up with the intent of never again resuming or claiming one's rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connections with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.

While Belinda was with the McKees, her father did visit her and came, on occasion, to pick her up. There was testimony that he was, at the time of the trial, visiting his children at his parents' home every day and buying food and milk for Belinda. Arch Pender III testified that when he was in Missouri, where he normally makes his home, he usually came down and visited Belinda every other weekend. He said that, when he was employed in Missouri, he had sent what money he could, after he paid his bills, to his father for Belinda's support. He said that he paid a total of $615 for child support in 1976 in three equal installments, even though he admitted that Brenda had denied receipt of them. The recited testimony is otherwise uncontradicted, so we cannot say that appellees met their burden of proving by clear and convincing evidence that Arch Pender III had abandoned Belinda within the meaning of the adoption statutes.

We are not at all certain about the terms of any judicial decree requiring Arch Pender III to support this child, and the record, as abstracted, does not disclose the identity of the court in which such a decree was entered, but he seems to have conceded that he was required, by a Missouri court, at one time to pay $205 per month to his wife, Brenda Pender, who has not had custody of Belinda for any significant period of time. It seems that these payments were required for the three children. It also appears that, on January 9, 1978, after the petition for adoption was filed, he made one payment of $25 upon an order for weekly payments in that amount obtained or issued by a Child Support Enforcement Unit. This also appears to have been for all three children. It is admitted that he was two weeks in arrears on those payments at the time of the trial.

We cannot say, however, that the probate judge erred in holding that Arch Pender III had failed significantly, without justifiable cause, to support Belinda, as required by law, even when the evidence is tested on the "clear and convincing standard," now effective in such cases. Harper v. Caskin, 265 Ark. --- (1979), 580 S.W.2d 176.

The law requiring a father to support his minor child has...

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