Swaite v. Steele (In re JS)
| Decision Date | 05 December 2018 |
| Docket Number | No. CV-18-256,CV-18-256 |
| Citation | 2018 Ark. App. 595,566 S.W.3d 517 |
| Parties | In the MATTER OF the ADOPTION OF JS and DS, Minor Children Jonathan Eric Swaite, Appellant v. Tim Steele and Carol Steele, Appellees |
| Court | Arkansas Court of Appeals |
The Law Offices of J. Brent Standridge, P.A., by: J. Brent Standridge, for appellant.
Howard Law Firm, PLLC, Benton, by: Lori D. Howard, for appellees.
Jonathan Eric Swaite appeals from the final decree entered by the Garland County Circuit Court granting the petition of Tim and Carol Steele to adopt Jonathan's two minor children. On appeal, Jonathan argues that the circuit court clearly erred in finding that his consent was unnecessary for the adoption and that adoption was in the best interest of the children. We affirm.
Jonathan has two children: JS (born April 15, 2014) and DS (born March 6, 2015). Their mother is Kala Dawn Steele. Kala's father is Tim Steele, and Carol Steele is Kala's stepmother. In June 2015, Tim and Carol were granted guardianship of JS and DS due to Jonathan's and Kala's drug problems.
More than two years later, on August 14, 2017, Tim and Carol filed a petition to adopt JS and DS. The Steeles alleged that consent to adoption was not required from either Jonathan or Kala because they had failed to support or communicate with JS and DS for at least one year. The Steeles also alleged that adoption was in the children's best interest.
A hearing on the adoption petition was held on November 14, 2017. The Steeles testified that since June 2015, they had been the guardians of JS and DS and that neither Jonathan nor Kala had provided support for the children despite each having been ordered by the court to pay monthly child support of $65. The Steeles testified that neither parent had sent clothing, cards, gifts, or diapers since June 2015. The Steeles stated that Jonathan and Kala had used food stamps a few times to purchase groceries for their children around March 2016.
Carol testified that in 2015, Jonathan and Kala were awarded visitation twice a week and that they inconsistently exercised visitation until April 2016. Carol stated that since June 2016, Jonathan had not seen the children and had not called them. Tim stated that his and Carol's phone numbers had not changed in twenty years. Tim also testified that while he and Carol had moved in February 2017, the postal service forwarded their mail.
Carol further testified that she, Tim, and the boys live in a 3000-square-foot house that has three bedrooms, two and a half baths, and a pool in the backyard. She stated that the children are on Tim's medical insurance, that she takes them to the doctor, and that their immunizations are current. Lastly, Carol testified that she and Tim desired to adopt the children and that they fully understood the responsibility of adopting them.
Jonathan testified that around 2015 he and Kala had no place to live, had no jobs, and were addicted to drugs, so they asked the Steeles to care for JS and DS. Jonathan stated that he had been incarcerated for a drug-related offense for a few months, released for a couple of weeks, and reincarcerated for a year and a half. He was incarcerated at the time of the hearing. He stated that he expected to be released in eighteen days; he had a job in construction and a truck waiting for him upon his release; he planned to live with his mother; and drugs were no longer a problem for him.
Jonathan conceded that he had not paid child support as ordered but that he was willing to pay support and child-support arrearages. He stated that he was unable to exercise visitation with JS and DS because the Steeles would not permit it. He said that he was unable to have phone visitation with the children because he broke his phone and he lost the Steeles' numbers. He said that he never tried to send letters or cards to his children because he was told that the Steeles had moved, and he did not have their new address. Finally, Jonathan testified that he did not consent to the adoption and that he wanted to continue to be the children's father.
Kala testified that she and Jonathan had drug problems. She stated that she turned herself in to the authorities on June 1, 2017, and she was still in custody. She conceded that she had not paid support to the Steeles as ordered. She further stated that she had talked to the Steeles approximately three weeks before the hearing and that their phone numbers had not changed.
The court further found that the Steeles had been awarded guardianship of the children in June 2015, they had been in the Steeles' care since that time, and the Steeles were fit parents. Lastly, the court found that adoption was in the best interest of the children because the Steeles had cared for them for over two years, they were the only "true parents" the children had known, the Steeles had taken full responsibility for the children, they understood the meaning of adoption, and they had the means and desire to provide the care and support the children need. Jonathan filed a timely notice of appeal from the adoption decree.1
We review adoption proceedings de novo on the record. Newkirk v. Hankins , 2016 Ark. App. 186, at 8, 486 S.W.3d 827, 832. Adoption statutes are strictly construed, and a person wishing to adopt a child without the consent of the parent must prove, by clear and convincing evidence, that consent is unnecessary. Id. , 486 S.W.3d at 832. A circuit court's finding that consent is unnecessary due to a failure to support or communicate with the child will not be reversed unless clearly erroneous. Id. , 486 S.W.3d at 832. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. , 486 S.W.3d at 832. In cases involving minor children, the circuit court must utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interest. Id. at 8–9, 486 S.W.3d at 832. Because the appellate court has no such opportunity, the superior position, ability, and opportunity of the circuit court to observe the parties are afforded their greatest weight in cases involving minor children. Id. at 9, 486 S.W.3d at 832–33.
As set forth above, the circuit court found that Jonathan's consent to the adoption of JS and DS was unnecessary. One reason is that it found that Jonathan had failed significantly and without justifiable cause to provide for the care and support of the children for a period in excess of one year. Jonathan argues that this finding is clearly erroneous because he provided "some support" when he was out of prison and was unable to provide support when he was in prison.
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