ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CA 00-1095

May 23, 2001

WILLIAM MICHAEL NEVILLE

APPELLANT APPEAL FROM PULASKI COUNTY

PROBATE COURT

VS.

HONORABLE ELLEN B. BRANTLEY,

PROBATE JUDGE

LEWIS CLAY HALL

APPELLEE AFFIRMED

William Michael Neville brings this appeal from a decree allowing his nine-year-old son to be adopted by appellee, Lewis Clay Hall, the husband of appellant's ex-wife. For reversal, appellant contends that the probate judge erred by not hearing his motion for contempt prior to the adoption and that appellee failed to establish by clear and convincing evidence that his consent was not necessary. We affirm.

The child involved in this case was born to appellant and Karen Honey on June 5, 1990. Appellant and Karen were married on February 3, 1991, after the child was born, and they were divorced on December 31, 1991. Karen was awarded custody, and appellant was granted supervised visitation. Subsequent to the decree, appel lant's mother was awarded grandparent visitation with the child.

Karen married appellee on April 15, 1994, when the child was three years old. Since then, appellee and Karen have had another child. Appellee filed this petition for adoption on May 13, 1999. Karen joined in the petition, and it was alleged that appellant's consent to the adoption was unnecessary because of his failure to support or communicate with the child for a period of one year. On appellee's motion, the adoption case was transferred to the division of court in which the divorce proceedings had been held. Subsequent to the adoption petition, appellant filed a motion for contempt alleging that Karen had willfully refused to allow him visitation.

After hearing the evidence, the judge excused appellant's failure to support the child but found that appellant's failure to communicate with the child for over one year rendered his consent to the adoption unnecessary. The judge then granted the adoption, finding that it was in the best interests of the child.

Appellant's first issue on appeal is that the probate judge erred by not disposing of his contempt motion before proceeding with the adoption petition. But appellant did not ask that the contempt motion be heard before the adoption petition, nor did he raise this as an objection to the adoption hearing going forward. We do not consider arguments that are raised for the first time on appeal. See Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758 (2000).

Appellant next contends that the probate judge erred in finding that appellee had met the required burden of proof to show that his consent was not necessary. We disagree.

Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 1998) provides that consent to an adoption is not required of a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause to communicate with the child. Failure to communicate without justifiable cause means a failure that is voluntary, willful, arbitrary, and without adequate excuse. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). "Failed signifi cantly" does not mean "failed totally," but the failure must be a significant one as contrasted with an insignificant one. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983). The one-year period contained in the statute may be any one-year period preceding thefiling of the adoption. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

A person who wishes to adopt without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997). Clear and convincing evidence is that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established. Taylor v. Hill, supra. A finding that consent is unnecessary on account of a failure to communicate with the child, however, is not reversed unless it is clearly erroneous. In re Adoption of K.F.H. and K.F.H., supra. The question is one of fact that is largely determined on the basis of the credibility of the witnesses. In re Adoption of Lybrand, supra. The personal observations of the trial judge are entitled to even more weight in cases involving the welfare of small children. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998).

At the hearing, it was established that an order had been entered on March 2, 1995, in which appellant was held in contempt for failing to pay child support. This order also provided that appellant's visitation was to be supervised by Karen, her mother, or appellee's mother, every other Saturday from one until four o'clock in the afternoon. It was undisputed that appellant had not seen the child since March 1995, except for a brief visit in thesummer of 1999, after the petition for adoption had been filed, when appellant's mother brought the child to see him during her scheduled visitation. Other than that, appellee and his witnesses testified that appellant had made little, if any, effort to contact the child or exercise visitation. It was said, however, that appellant had dropped off an opened package of adult-sized socks for the child at Karen's parent's home in the summer of 1997 and that the child had received a card from appellant sometime in 1997.

In his testimony, appellant admitted that he had not seen the child since 1995 other than the brief visit in 1999. He did testify that he had tried to visit with the child later in 1995 but that his request had been refused. He said that he had made no attempt at all to see the child in 1996. Appellant explained that he had a substance abuse problem at that time and was on probation. He testified that Karen's family had threatened him with harassment charges should he push for visitation and that, because of his status as a probationer, he did not attempt to see the child for fear of jeopardizing his freedom. Appellant also said that appellee's position as fireman made him worry about his probation being revoked because he was behind in the payments toward his fines. Appellant further testified that he had visited regularly with the child prior to appellee's marriage to Karen and that his problems maintaining visitation began with their marriage. He saidthat appellee, Karen and her parents had decided that he should no longer be a part of the child's life and that they "thwarted" his visitation.

Appellant also testified that he had represented himself in the contempt action of March 1995 and that the order had been entered without his knowledge. He said that he was unaware that Karen, her mother, and appellee's mother had been named to supervise visitation and that he had thought that visitation was to be supervised only by his girlfriend, who was currently his wife. Appellant testified that, in addition to his drug problems, his father had died. He had also been in prison from October 1997 to October 1998. Appellant testified that he had remained off drugs since his incarceration, that he had married his girlfriend two months prior to the adoption hearing, that he was helping to raise his wife's two sons, and that he has been steadily employed.

Appellant's mother, Maria Delia Evanoff, testified that she had been visiting with her grandson as much as she could since 1994, although she lived out of state. She said that she had also sent cards, letters, gifts, and money for the child. Mrs. Evanoff testified that she began having problems with visitation in 1995. First, she said that she had wanted the child to be a ring-bearer at her daughter's wedding but that Karen had not returned her phone calls. On another occasion, she said she had to cancel a tripbecause her request for visitation had been refused. She also testified that she had been required to hire a lawyer on at least two occasions to enforce her visitation rights but that the matters had been settled out of court. She said that during her last visitation in 1999 she and appellee had argued and that appellee refused to let her see the child the next visitation day.

Appellant's wife, Corinna, also testified. She said that she was aware of several attempts appellant had made to visit with the child since 1995. She said that appellant was told to stop calling. Mrs. Neville further testified that appellant was worried about harassment charges while he was on probation.

Appellee testified that he last spoke with appellant soon after the March 1995 order had been entered. He said that appellant had asked to see the child but that he had told appellant that it was not his weekend for visitation according to the order. Appellee said that he had not heard from appellant since and had only recently learned where appellant lived. Appellee testified that he had not prevented appellant from visiting the child. He said that their phone number had always been listed and that they had an answering machine, but that appellant had not called. Appellee said that he could think of only one time that he had refused Mrs. Evanoff visitation. He testified that she came to the house in 1997. He said that she had not visited in two years, thatthe child did not recognize her, and that he did not feel that a visit was a good idea until they had a chance to speak with the child first. Appellee testified that Mrs. Evanoff missed several scheduled visits and that she had not seen the child in 1998. He said that Mrs. Evanoff had returned the child late from her last visit in 1999 and that he had not heard from her since.

Karen testified that the only contact she had had with appellant since 1995 was a phone call made after the adoption had been filed in which appellant complained about discovery requests. She also testified that she had only recently learned where appellant was living.

Karen's parents also testified on appellee's behalf. Mrs. Honey said that she had not received any calls from appellant desiring visitation. She said that appellant did harass them at the time of the divorce in 1991 and that she may have threatened harassment charges at that time, but no other. She said that she had taken no steps to prevent appellant from exercising visitation. Mr. Honey testified that he did not tell appellant in 1995 not to contact them anymore.

Appellant argues that his testimony and that of his mother demonstrate that he attempted to visit with the child but that his efforts were thwarted. He also suggests that the testimony of appellee and his witnesses are lacking in credibility. The probatejudge, however, gave greater weight to the testimony of appellee and his witnesses, as was her prerogative. She found that appellant's efforts to contact or visit with the child "were so insubstantial, so sporadic, and were never directed where they should have been directed, which was to the mother of the child." The judge also found that appellant had known that, not his current wife, but three others, had been named to supervise visitation and that he had done nothing to have that corrected or otherwise enforce his visitation rights. We cannot say that the judge's findings are clearly erroneous. The record shows that appellant did not see the child for five years and that his only contact with his son during this span was one card and a gift. In a case quite similar to the one at bar, we have held that the trial court may consider as a factor the parent's failure to seek enforcement of his visitation rights during the relevant one-year period. See Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). We affirm the probate judge's decision to permit the adoption.

Affirmed.

Robbins and Baker, JJ., agree.