T.R. v. L.H.

• Decision Date: 16 September 2015
• Docket Number: No. CV-14-495,CV-14-495
• Parties: T.R. APPELLANT v. L.H., P.M., AND S.M. APPELLEES
• Court: Arkansas Court of Appeals

2015 Ark. App. 483

T.R. APPELLANT v. L.H., P.M., AND S.M. APPELLEES

No. CV-14-495

ARKANSAS COURT OF APPEALS DIVISION III

September 16, 2015

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[No. DR2013-1875-5]

HONORABLE XOLLIE DUNCAN, JUDGE

AFFIRMED

LARRY D. VAUGHT, Judge

Appellant T.R.,¹ the putative father of A.E.M., appeals from the decrees entered by the Circuit Court of Benton County, granting the adoption petition filed by appellees P.M. and S.M. and finding that T.R.'s consent to the adoption was not required, T.R. was unreasonably withholding his consent, and adoption was in A.E.M.'s best interest. On appeal, T.R. argues that the trial court clearly erred in finding that his consent was not required; the trial court clearly erred in finding that he unreasonably withheld his consent and adoption was in A.E.M.'s best interest; his constitutional rights to due process were violated; the trial court abused its discretion in failing to recuse; and his counsel was ineffective. We affirm.

In March and April 2013, T.R. was involved in a romantic relationship with appellee L.H., and they had unprotected sex. Their relationship ended on April 27, 2013. A coupleof weeks later, L.H. discovered that she was pregnant. She did not advise T.R. of the pregnancy. Within days of learning of her pregnancy, L.H., who was divorced with custody of her own two young children, made the decision to place the baby for adoption. L.H. met the adoptive parents, P.M. and S.M., in mid-May 2013, and they supported her financially and emotionally from that point until the birth of A.E.M. on December 30, 2013. A.E.M. went home with P.M. and S.M. and has been in their custody since that time.

After the relationship between T.R. and L.H. ended, they had no contact with one another. On November 11, 2013, T.R. learned of L.H.'s pregnancy from L.H.'s friend. The following day, T.R. filed his information with the putative-father registry. On November 13, 2013, he filed a petition to establish paternity and to object to the adoption of the child.

On December 11, 2013, P.M. and S.M. filed a petition to adopt A.E.M. The petition stated that an inquiry would be made with the Arkansas Putative Father Registry to ascertain if any information had been filed with regard to L.H.'s baby. An amended petition for adoption was filed January 3, 2014, wherein P.M. and S.M. alleged that the putative father had filed with the registry but had failed to comply with the requirement of Arkansas Code Annotated section 9-9-206(a)(2).

T.R. filed a motion to consolidate the paternity and adoption cases on January 3, 2014. The trial court granted the motion on January 29, 2014. Thereafter, L.H. moved to bifurcate the cases, and on February 13, 2014, the trial court granted L.H.'s motion.²

The adoption hearing was held February 10, 2014. T.R. testified that when he learned of L.H.'s pregnancy, he attempted to contact her, but she thwarted his efforts. Additionally, he said he tried to contact L.H.'s sister, L.H.'s ex-husband's aunt and his other children's mother, but he (T.R.) was ignored. He testified that he filed papers with the putative-father registry, and he filed a paternity suit. He conceded that despite having unprotected sex with L.H., he did nothing to find out if L.H. was pregnant after their relationship ended. While he did not offer to give L.H. money during her pregnancy, he testified that she could have called him and asked him for help. He testified that since he learned of L.H.'s pregnancy, he had been making preparations for A.E.M. Three days before the adoption hearing, he secured an apartment. He had also purchased multiple baby items and had submitted resumes to get a higher-paying job. And because he worked nights as the manager of a hotel,³ he had also made arrangements with his grandmother, who was in her eighties, to care for A.E.M. during the day.

T.R. listed eight women with whom he had had relationships with since 2006. He had three children, A.E.M., C.R.⁴ and E.R.,⁵ out of wedlock with three of the women. And he said that since 2006, he and C.R. had stayed overnight at one or more of these women's residences. He had joint custody of C.R. and was ordered to pay child support for him. T.R. said that he was under an order to pay child support for E.R. as well but that he had not seenhim in two years because his mother, who was seventeen years old when she became pregnant with E.R., would not permit it. He added that he planned to pursue custody of E.R. after he saved sufficient funds for an attorney. T.R. began dating his current girlfriend, Teresa, in mid-November 2013, approximately three days after she was arrested for possession of drug paraphernalia. He testified that she no longer smoked marijuana.

T.R. testified that it was his goal to have custody of all three of his children. He said that he had no problem meeting his financial obligations, including his child-support obligations. However, he later conceded that his child-support obligations were not current.

L.H. testified that she ended her relationship with T.R. on April 27, 2013, when she witnessed inappropriate conduct between C.R. (who was five years old at the time) and her four-year-old daughter. She said that she found out she was pregnant a couple of weeks later. She believed T.R. to be the father. She admitted not notifying T.R. of her pregnancy, but she stated that she did not do anything to avoid him. She said that her address and email address never changed. Also, until November 2013, her phone number remained the same.

L.H. testified that she believed P.M. and S.M. were great and that they helped her through the pregnancy. She said that she did not believe T.R. was raising C.R. in the right way, criticizing him for not providing proper shelter for C.R. She did not believe that T.R would be capable of caring for all three of his children.

Social worker Karen Scott testified as an expert witness in this case. She performed the home study on P.M. and S.M., approving them for the adoption. Additionally, she opined that T.R. had an unstable life and was not providing for either C.R. or E.R. Scott said thatT.R. and C.R. were "barely making it," and she was very concerned that T.R. did not see E.R. and that T.R. chose to pursue custody of A.E.M. instead of custody of E.R., especially if E.R.'s mother was subjecting E.R. to drug dealers as claimed by T.R. Scott was also concerned that T.R. had multiple girlfriends and residences and that he had involved C.R. in all of them. She questioned T.R. because he did not follow up with L.H. to inquire if she were pregnant, and he failed to offer to help her when he discovered the pregnancy. She added that L.H. had the obligation to tell T.R. about the pregnancy.

P.M. and S.M. both testified that they did not believe that T.R. was providing for either C.R. or E.R. They pointed out that T.R. was behind in his child-support obligations for both children and had no relationship at all with E.R. It was the opinion of S.M. that because T.R. had exposed C.R. to at least five women in the quasi-stepmother role—one of whom had drug charges pending—that T.R. was not providing a stable and healthy home for C.R. And P.M. testified that T.R. had failed to provide support to A.E.M., which he was obligated to do by statute. Both P.M. and S.M. requested that the trial court grant the adoption.

From the bench, the trial court found that T.R.'s consent to the adoption was not required. And assuming that consent to the adoption was required, the court further found that T.R. was unreasonably withholding consent. Finally, the court found that it was in the best interest of A.E.M to be adopted. In reaching these findings, the trial court found that T.R. was not a credible witness and that he could not care or provide for A.E.M. Thereafter, the trial court entered two decrees of adoption. This appeal followed.

Adoption proceedings are reviewed de novo. In re A.R., 103 Ark. App. 1, 3, 285 S.W.3d 716, 717 (2008). Adoption statutes are strictly construed, and a person wishing to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. Id., 285 S.W.3d at 717. A trial 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., 285 S.W.3d at 717. 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. at 3-4, 285 S.W.3d at 717-18. We defer to the trial court in making credibility determinations because the trial court is in a better position to judge the credibility of witnesses. Id. at 4 , 285 S.W.3d at 718.

T.R.'s first point on appeal is that the trial court clearly erred in finding that his consent to adoption was not required.⁶ He claims that by statute—Arkansas Code Annotated sections 9-9-206 and 9-9-207—his consent was required.

Arkansas Code Annotated section 9-9-206 lists the people who are required to consent to adoption. Subsection (a) provides that, unless consent is not required under section 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:

(2) The father of the minor if:

(A) The father was married to the mother at the time the minor was conceived or at any time thereafter;

(B) The minor is his child by adoption;

(C) He has physical custody of the minor at the time the petition is filed;

(D) He has a written order granting him legal custody of the minor at the time the petition for adoption is filed;

(E) A court has adjudicated him to be the legal father prior to the time the petition for adoption is filed;

(F) He proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed; or

(G) He has acknowledged paternity under §

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