ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

MATTHEW KEVIN VERSER

APPELLANT

V.

JARED WAYNE RICHARDSON and

MIKA L. RICHARDSON

APPELLEES

CA 01-1432

SEPTEMBER 4, 2002

APPEAL FROM THE INDEPENDENCE COUNTY PROBATE COURT

[NO. P 2001-104]

HONORABLE JOHN NORMAN HARKEY, JUDGE

AFFIRMED

The Independence County Probate Court granted an adoption of a minor child to her step-father, Jared Wayne Richardson. The appellant and biological father of the child, Matthew Kevin Verser, made a motion to vacate the adoption, but the circuit court denied it. On appeal, appellant argues that the trial court erred: (1) in proceeding with the adoption hearing without his presence in the courtroom in derogation of his Fourteenth Amendment right to due process; (2) in proceeding with the adoption hearing without the presence of his legal counsel after appellant asserted that he was represented, violating his due-process rights; (3) in finding that appellant failed to significantly support the minor child without justifiable cause for a period of more than one year; (4) by granting the adoption and ruling that it was in the child's best interest; and (5) in denying appellant's motion to vacate the judgment of adoption. We affirm.

Appellee Mika Richardson is the natural mother of the minor child, K.R., born May 5, 1993. Mika Richardson never married appellant. However, on September 28, 1993, the Independence County Chancery Court established appellant's paternity of K.R. On August 9, 1996, Mika Richardson married appellee Jared Richardson. On July 3, 2001, Mika and Jared Richardson filed a petition for Jared to adopt K.R. An adoption hearing was held on September 10, 2001, and the lower court granted the petition for adoption. The trial court found that appellant had failed to support the child without justifiable cause for a period of more than one year, that appellant had unreasonably withheld his consent, and that it would be in the best interest of the child for the petition for adoption to be granted.

For appellant's first and second points on appeal, he claims that the trial court violated the Fourteenth Amendment of the United States Constitution and his due-process rights by conducting the adoption hearing without his presence or the presence of his counsel. Appellant failed to make these constitutional arguments to the probate court. We cannot address issues raised for the first time on appeal. Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996). Even constitutional arguments being raised for the first time on appeal will not be considered. Id. Appellant could have made these arguments in his motion to vacate; however, he failed to do so.

Next, appellant contends that the trial court erred in finding that he failed to significantly support the minor child without justifiable cause for a period of more than one year. Parental consent is not required of the non-custodial parent if that parent fails significantly and without justifiable cause to provide care and support for a period of at leastone year. Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1998). The statute specifically states that consent to adoption is not required of:

(a)(1) A parent who has deserted a child without affording means of identification or who has abandoned a child;

(2) A parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;

Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1998); see In re Adoption of K.F.H. & K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). "Failed significantly" in this section does not mean failed totally, but the failure must be a significant one as contrasted with an insignificant one. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). It denotes a failure that is meaningful or important. Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983). In order to adopt a child without the necessity of parental consent, the conduct of a parent who has failed significantly without justifiable cause to provide for the care and support of his child as required by law or judicial decree, must be wilful in the sense of being voluntary and intentional. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983).

The party seeking to adopt a child without the consent of a natural parent must prove by clear and convincing evidence that the failure to support the child continued for at least one year. In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989). Because one should not be permitted to assert a right until the facts on which it is predicated have accrued, the one-year period after which the parent may lose his right to consent to the adoption must accrue before the petition for adoption is filed. Manuel, supra. The one-year period need not be theyear immediately preceding the judgment of adoption. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

After the Independence County Chancery Court found appellant to be the father of K.R. in 1993, it ordered appellant to pay support in the sum of $42.50 per week. At the adoption hearing, Mika Richardson testified that appellant had only paid support on a sporadic basis over the years. She further stated that a period of more than one year had gone by when appellant did not pay any support. The records of the Independence County Office of Child Support confirm that appellant paid no child support between September 18, 1998, and June 14, 2001. This evidence is sufficient to establish that appellant failed significantly and without justifiable cause to contribute to K.R.'s support for a period of more than one year. This court has held that a parent has the obligation to support a minor child, Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987), and that this duty cannot be excused on the basis of the conduct of others, unless that conduct prevents the performance of the duty, Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986). In this instance, appellant offers no explanation for failing to provide support from September 18, 1998, until June 14, 2001. Rather, he produced documentation of support payments made outside of the period in question. After reviewing the record, we believe that appellant's failure to support K.R. was arbitrary and without just cause.

Next, appellant maintains that the trial court erred by granting the adoption and ruling that it was in the child's best interest. If other statutory requirements are met, Arkansas law permits a probate court to grant a petition for adoption only if such adoption is in the bestinterest of the child to be adopted. Ark. Code Ann. § 9-9-214(c) (Repl. 1998). On appeal, this court reviews probate proceedings de novo on the record; however, it will not reverse a probate court's decision unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the probate judge to assess the credibility of witnesses. In re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989). Personal observations of the probate court are entitled to even more weight in cases involving the welfare of a young child. Id.

··²SDU_9²····²SDU_9²·· Arkansas Code Annotated Section 9-9-220(c) (Supp. 1999) states in pertinent part: ··²SDU_10²····²SDU_10²··

(c) In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:

(3) That in the case of a parent not having custody of a child, his consent is being unreasonably withheld contrary to the best interest of the child.

It is well-settled that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents; parental rights, however, will not be enforced to the detriment or destruction of the health and well being of the child. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Given this fact and the deference that this court must afford the trial judge in these matters, this court must affirm the trial court.

Appellees established several facts at the adoption hearing that indicate that it was in the best interest of K.R. for the probate court to grant appellees' petition for adoption. First, appellant failed to comply with support orders and was consequently incarcerated. Second, appellant pled guilty to making harassing communications in 1998. Third, witness testimonyat the adoption hearing confirmed appellant's tendency to make obscene phone calls. Fourth, appellant has also been convicted for writing hot checks, driving on a suspended driver's license, public intoxication, and speeding and fleeing with a vehicle. Fifth, Lisa Earls, an investigating officer for the state police, testified that she investigated a report of appellant's maltreatment of K.R. and believed it to be true. Sixth, as a result of child abuse allegations, K.R. has been treated by a social worker. Seventh, the social worker concluded that K.R. was extremely fearful of being alone with appellant. And finally, K.R. referred to Jared Richardson as her dad and to appellant as "Kevin." With these facts in mind, we hold that the probate court did not clearly err in granting appellees' petition for adoption.