Racine v. Nelson
| Decision Date | 09 February 2011 |
| Docket Number | No. 09–1192.,09–1192. |
| Citation | 2011 Ark. 50,378 S.W.3d 93 |
| Parties | Alfred (John) Henry RACINE, III, Appellant v. Helane Marie NELSON, Appellee. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Katherine Blackmon–Solis, for appellant.
Stephanie Chamberlin PA, for appellee.
Appellant Alfred (John) Henry Racine, III, appeals an order of the Pulaski County Circuit Court granting an adoption petition filed by appellee Helane Marie Nelson for the adoption of the parties' biological child, L.N. On appeal, appellant argues that the circuit court erred in interpreting our adoption statutes, challenges the constitutionality of the consent statute, disputes the circuit court's finding concerning the child's best interest, and contends that his paternity petition should not have been dismissed. Our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1–2(a)(1), (b)(3) (2010). We affirm.
Appellee, a forty-two-year-old professional jazz singer, and appellant lived in Charlottesville, Virginia. The couple never married but continued a tumultuous relationship over a period of five years. In the spring of 2006, appellee became pregnant with a child whom she believed appellant fathered. Appellant's wife, Victoria Platt, also became pregnant with appellant's child at the same time, but she miscarried in September 2006.
Appellant learned of appellee's pregnancy on May 12, 2006, and shortly thereafter, ended his relationship with appellee. However, appellant accompanied appellee to one prenatal appointment on May 16, 2006, when appellant viewed the ultrasound images of the child. On May 26, 2006, appellant gave appellee a check for $750, which she deposited into her checking account. Appellant did not provide further financial assistance to appellee for the child or for any medical costs incurred in connection with the child's birth.
Appellee suffered difficulties associated with her pregnancy because of her age and fibroid tumors. As a result of complications associated with the tumors, appellee became bedridden. Appellee kept appellant informed of her pregnancy, doctor's appointments, and general condition from May 2006 to October 2006. According to appellee, she had health insurance, but she did not have a maternity rider, and an initial estimate for her maternity expenses exceeded $80,000.
Appellee remained in Charlottesville until August 2006, when she moved to Little Rock to stay with a friend, but appellee did not inform appellant that she moved to Arkansas. At that time, appellee secured her own apartment, had a telephone installed, obtained an Arkansas driver's license, and registered to vote in Arkansas. While she lived in Arkansas, appellee kept her cell-phone number and email address on her professional website.
On October 12, 2006, appellant asked his Virginia attorney, Randy Parker, to mail a letter to appellee, stating that she should “cease and desist having any contact with [appellant].” At the request of his client, Parker mailed an identical letter asserting no contact between appellee and Platt. Appellee stated that she had no further contact with appellant except occasional emails and telephone calls, and appellee advised appellant that she would not speak with him unless he retracted his previous no-contact demand.
On December 22, 2006, appellee gave birth to the parties' child, L.N., in Little Rock. When appellee delivered her baby, she did not contact appellant to inform him of the birth. However, appellee did contact a mutual acquaintance, who called appellant to tell him that appellee and the baby were well. Appellant claimed that he placed hundreds of phone calls, sent emails, contacted appellee's family, and left messages with appellee in an attempt to locate her and the child. According to appellant, appellee's family wanted nothing to do with him. Appellant acknowledged that, in January 2008, he hired an investigator who located appellee in Arkansas.
On January 29, 2008, appellant filed a petition for paternity in Pulaski County Circuit Court, alleging paternity of L.N. In his petition, appellant averred that he believed he was the biological father of L.N. and had offered financial support and had attempted to establish a custodial relationship with the child, but his efforts were thwarted by appellee's refusal to cooperate. A DNA test, performed by consent of both parties, confirmed in a report, dated April 16, 2008, that appellant was L.N.'s biological father.
On February 1, 2008, appellee filed a petition for adoption of L.N., alleging that appellant abandoned the minor child, failed to communicate with the child, and failed to provide care and support for the child since her birth. Appellee argued that, pursuant to Arkansas Code Annotated section 9–9–207 (Repl.2009), appellant's consent to the adoption was not required. As of the date of the petition, appellant had not filed with the Arkansas Putative Father Registry, nor had he filed with the Virginia registry.
The circuit court held a temporary hearing on March 31, 2008, concerning both matters. Then, in May 2008, the circuit court issued a letter opinion of its findings stating, inter alia, that at the time appellant filed his petition, appellant had not established a significant custodial, personal,or financial relationship with L.N. because he allegedly did not know of appellee's whereabouts. In its letter order, the circuit court denied appellee's motion to strike the pleadings filed in the adoption petition and denied her motion to stay the paternity action. The court reasoned that, because the primary consideration in an adoption action is the best interest of the child, appellant's participation in the adoption hearing was necessary.
Additionally, on April 14, 2008, appellant filed a motion for ruling Arkansas Code Annotated section 9–9–207(a)(11) (Repl.2009) as unconstitutional. In his motion, appellant argued that the statutory provision violated separation of powers, infringed upon constitutional due-process rights under the federal and Arkansas constitutions, and violated his right to privacy. On July 15, 2008, the circuit court issued a letter opinion denying appellant's amended motion to rule section 9–9–207(a)(11) as unconstitutional and allowed appellee to proceed with her adoption petition.
Meanwhile, appellee's counsel hired Allen Noble, a Conway private investigator. In an email dated May 28, 2008, appellee's counsel advised Noble of a purported need to locate appellee. Counsel gave Noble her address in Virginia, her date of birth, the fact that she delivered a baby in December of 2006, and the fact that she was a registered voter and had a valid driver's license. With this information, Noble located appellee in one hour using a free internet search engine, Any Who.
The circuit court held hearings on December 12, 2008, December 18, 2008, and February 19, 2009. Numerous witnesses presented conflicting facts concerning appellant's efforts to locate, communicate, and support L.N. At trial, appellant testified at length regarding his efforts to locate appellee, the nature of his relationship with appellee, his relationship with other women, including his ex-wife, his relationship with his children, his capability as a father, and his character in general. Further, appellant testified about the hiring of a private detective through his attorney; his own hiring of a private detective; his communication with appellee through hundreds of emails, letters, and messages; his contact with appellee's family; and his contact with appellee's booking agent.
However, appellee presented witnesses to refute this testimony. Several witnesses, including appellee's pastors and the director of L.N.'s preschool, testified that L.N. appeared to be a smart, well-adjusted child and that appellee appeared to be a capable parent. Lori Racine, appellant's ex-wife, testified that she believed appellant was capable of violence when provoked. Kevin Olivera, appellee's booking agent, testified that he never received a call from someone trying to reach appellee. Charles Nelson III, appellee's brother, presented testimony that he spoke to appellant in 2006 and never heard from him again. Additionally, appellee testified that appellant's attorney issued a letter ordering her to cease and desist any contact with him approximately two months prior to the child's birth. Appellee also testified that appellant provided no monetary support since L.N.'s birth and that, although she incurred $30,000 in pregnancy expenses, appellant's only means of financial support included the $750 check given to her on May 26, 2006. Appellee further stated that appellant had never spoken to the child since her birth and that he sent two bouquets of flowers for Easter in 2008. Appellee testified that she did not believe appellant had established any monetary fund for L.N.'s use, nor had she received a copy of appellant's will, which allowed for his children, including those children born subsequent to the will's execution, to receive a pro rata share with his two other children. Appellee further testified that, after L.N. was born, she received a letter from appellant in February 2007, a few messages, and a couple of emails in September and October of 2007.
On May 5, 2009, the circuit court entered an order with the following factual findings. The court found appellant to be a “controlling, manipulative, abusive individual” who controlled appellee during their relationship and “physically and mentally” abused her. The court found appellant's testimony to be “inconsistent and contrary” to appellee's credible testimony, noting that the court believed appellant to be “one of the smoothest prevaricators ever to testify” before it, leaving the court with the “distinct impression” that appellant was not truthful. However, the circuit court found appellee to be “credible and believable” and that appellant's “lack of contact, support, or concern” for appelle...
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