Bemis v. Hare
718 S.W.2d 481, 19 Ark. App. 198, 1986 Ark. App. LEXIS 2494 (1986)
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Rule of Law:
A natural parent's consent to adoption is not required under Arkansas law if they have failed significantly without justifiable cause to provide care and support for at least one year. A parent's duty to pay child support is independent of visitation rights, and interference with visitation or an alleged agreement to excuse support does not constitute "justifiable cause" for ceasing payments unless it prevents the parent from performing their duty.
Facts:
- Debra Hare Bemis (then Debra Hare) and Freddie M. Hare were married and had a son, David Paul Hare, born on March 17, 1974.
- Debra and Freddie divorced on June 1, 1976, with Debra receiving custody of David and Freddie ordered to pay $100 per month in child support.
- Debra married Ralph T. Bemis on June 16, 1976, and Ralph has lived with David since he was two years old, developing a father-son relationship.
- Freddie failed to pay any child support from October 1983 to February 1986, voluntarily choosing to stop payments and discontinue his military dependent allotment.
- Freddie did not visit or communicate with David in any manner from October 1983 to February 1986.
- Freddie alleged that Debra interfered with his visitation rights, making it difficult to see David, and that she offered an agreement to excuse his support payments if he stopped seeing David.
- Freddie's mother, Mrs. Hare, also testified to difficulties in exercising visitation rights with David, stating that David often refused to go with her, and that she stopped trying to visit in 1983.
Procedural Posture:
- Debra Hare and Freddie M. Hare divorced, and a divorce decree dated June 1, 1976, awarded custody of David to Debra and ordered Freddie to pay child support.
- Subsequent litigation between Debra and Freddie led to orders increasing child support payments and reducing arrearages to judgments against Freddie.
- Ralph T. Bemis and Debra Hare Bemis filed a petition for adoption of David Paul Hare in the Probate Court of Lonoke County.
- The Probate Court denied the adoption petition, ruling that Freddie M. Hare had justifiable cause for his failure to support and communicate with David.
- Ralph T. Bemis and Debra Hare Bemis appealed the Probate Court's decision to the Arkansas Court of Appeals.
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Issue:
Does a natural father's failure to provide child support for over one year constitute a "significant failure without justifiable cause" under Ark. Stat. Ann. § 56-207(a)(2), thereby negating the requirement for his consent to adoption, even if he alleges interference with visitation rights or an agreement with the custodial parent to excuse support?
Opinions:
Majority - Donald L. Corbin
Yes, a natural father's failure to provide child support for over one year does constitute a "significant failure without justifiable cause" under the statute, thereby negating the requirement for his consent to adoption, because the duty to pay child support is independent of visitation rights, and alleged interference with visitation or an agreement to excuse support does not provide "justifiable cause." The court first noted that statutory provisions for adoption without parental consent, specifically Ark. Stat. Ann. § 56-207(a)(2), are strictly construed and require the party seeking adoption to prove by clear and convincing evidence that the parent failed significantly without justifiable cause to communicate or provide support for at least one year. The court emphasized that "failed significantly" means meaningfully or importantly, and "justifiable cause" means the failure was not willful, voluntary, or intentional. Reviewing the probate court's decision de novo, the majority found the lower court's finding that Freddie's failure to support was justified to be clearly erroneous. Citing precedents like Henson v. Money and Green v. Green, the court reiterated that the duty to pay child support is independent of visitation rights, and interference with visitation does not excuse this duty unless the custodial parent's conduct prevents the non-custodial parent from making payments. There was no competent evidence that appellants prevented Freddie from making payments, and he voluntarily chose to stop. Furthermore, the court held that an alleged agreement between Freddie and Debra to excuse support for lack of visitation did not relieve Freddie of his legal obligation, citing Dangelo v. Neil which states a parent's obligation to support a minor child does not require a request. The court concluded that appellants proved by clear and convincing evidence that Freddie failed significantly and without justifiable cause to provide for David's care and support, thus his consent was not required. The case was reversed and remanded, as the probate court had not yet determined whether the adoption was in David's best interest, a separate necessary finding after parental consent is excused.
Dissenting - Melvin Mayfield
No, a natural father's failure to provide child support for over one year does not necessarily constitute a "significant failure without justifiable cause" under the statute, thereby negating the requirement for his consent to adoption, especially when the trial judge finds that the failure was justified due to substantial visitation interference and a possible agreement with the custodial parent. The dissenting opinion reiterated the strict construction of adoption statutes and the heavy burden of proof (clear and convincing evidence) on the adopting parents. It strongly emphasized the appellate court's obligation to defer to the probate judge's findings unless they are "clearly erroneous," giving due regard to the trial judge's superior position to assess witness credibility, particularly in cases involving a child's welfare. The dissent highlighted the probate judge's specific findings: that Freddie's failure to visit or pay support was justified, that Debra had done everything possible to avoid collecting support to facilitate adoption and had led Freddie to believe he shouldn't pay if he couldn't visit, and that Debra had turned David against his father. The judge also accepted Freddie's testimony that visitation became impossible without greatly upsetting David. The dissent argued that while the failure to pay support was acknowledged, the trial judge's acceptance of Freddie's excuse — the problem of visitation and an alleged agreement with Debra — meant that the failure was not "without justifiable cause" or "without adequate excuse." The dissent believed these findings, supported by evidence of repeated visitation issues and the mother's attitude toward support collection, should have led to an affirmation of the trial court's denial of the adoption petition.
Analysis:
This case significantly clarifies the strict interpretation of Arkansas's adoption statutes regarding dispensing with parental consent. It firmly establishes that a natural parent's duty to provide child support is paramount and largely independent of visitation disputes, making it difficult to claim "justifiable cause" for non-support based on alleged visitation interference or informal agreements. This ruling strengthens the legal pathway for stepparent adoptions where a non-custodial parent has financially neglected the child. The case also underscores the critical two-part inquiry in adoption proceedings: first, determining if consent is required/excused, and second, ensuring the adoption serves the child's best interests.
