ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION I

CARRIE NICHOLS-WHITSETT

APPELLANT

V.

MICHAEL REDDOCH and BRANDY REDDOCH

APPELLEES

CA 02-1134

JUNE 11, 2003

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT,

FORT SMITH DISTRICT

[NO. P-95-209, PR-02-43]

HONORABLE JIM D. SPEARS,

JUDGE

AFFIRMED

Appellant Carrie Nichols Whitsett appeals the order of adoption entered on July 9, 2002, by the Sebastian County Circuit Court regarding appellant's biological son, David, born on October 30, 1989. David had resided with his legal guardians from November 1995 until April 1999, when the adoptive parents, appellees Michael and Brandy Reddoch, accepted physical custody of the child. On November 9, 2001, appellant petitioned the circuit court to return her son, whom she alleged she could not locate, and to close the guardianship. The guardians resisted the petition in a formal response. Appellees petitioned the circuit court on February 11, 2002, to adopt David and to consolidate the guardianship case with this petition, which was permitted by consent of the parties. The petition to adopt included an allegation that appellant had no contact with her son for more than six-and-one-half years without justifiable cause. After a hearing on the matter, the circuit judge granted

an interlocutory decree of adoption, finding that appellant's lack of contact was not justifiable such that her consent was unnecessary and that the adoption was in David's best interest. Appellant argues that these two findings were in error and appeals.1

We review adoption proceedings de novo, but the decision of the trial court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). We have conducted such a review, and we affirm.

A review of the evidence presented to the circuit judge is necessary for our de novo review. Appellant gave birth to her son in Fort Smith, Arkansas, where she has continually resided. Appellant had personal and legal problems leading up to the guardianship in 1995. Based upon habitual neglect and abandonment, the child was placed in the custody of Lenita Shumate, appellant's sister, and her husband William as guardians on November 2, 1995, by order of the Sebastian County Probate Court. Appellant, though having been charged with felonies and having spent time in jail in 1996, moved to vacate the guardianship in April 1996. The motion was denied.

Lenita and William Shumate moved in July 1996 to Phoenix, Arizona, near Lenita's extended relatives. Those extended relatives included appellant's brother, appellee Michael Reddoch and his wife appellee Brandy Reddoch, another brother Jessie Reddoch, and another sister Dorothy Lloyd. After the Shumates moved to Phoenix, appellant was acknowledged to have made several telephone calls to David and to have written a couple of letters to him. However, in conjunction with those phone calls, Lenita said that appellant was verbally abusive toward her, threatening that she would have Lenita's daughters killed for having stolen her son. Lenita believed that appellant was drunk when she called. Appellant called the Phoenix police to report that Lenita kidnaped her son and was abusing him. Phoenix authorities checked on David's welfare but would not act on appellant's complaints and instead suggested that she seek intervention with the courts.

In 1997, appellee Michael also received some abusive and profane telephone calls from appellant. Michael said he encouraged his sister to be drug-free, to straighten her life out, and that if that occurred, he would talk to Lenita about David for her. Appellant became angry, threatening him that if he got in the way of her getting her son back that she would kill him.

Lenita and William divorced in March of 1998. In August of 1998, Lenita and David moved to San Francisco, California for the 1998/1999 school year, going with brother Jessie Reddoch to a church-based school where Jessie would be the principal. Jessie was also a minister. Lenita did not give appellant her address, but allowed Jessie to act as mediator. Jessie counseled appellant by telephone, encouraging her to keep in contact with her son bysending gifts or letters through him. Those items were never sent. As the year ended, Lenita's daughters were grown and leaving home at this time, and appellees wanted David to come and stay with them. David came to live with appellees for the summer of 1999 and never left. Appellees said that though they moved once within the Phoenix area, their telephone number was listed in the directory. Appellant did not call, send any support, or attempt any contact with her family between 1999 and 2001.

Lenita moved back to Phoenix in February 2001, but she did not take David back because he was happy with appellees. On November 9, 2001, appellant petitioned for a second time to close the guardianship of the Shumates. On February 11, 2002, appellees filed a petition for adoption and requested that the guardianship case be consolidated with this petition. The consolidation was permitted after agreement of the parties. In their adoption petition, appellees asserted that (1) they were married in 1996, (2) they had lived in the same Arizona home for a period of years, (3) they were financially and physically capable of caring for David, (4) David's biological father was unknown, and (5) appellant had not provided any support or communicated with David for more than six years, such that her consent was unnecessary.

At the hearing, appellee Brandy testified that she lived in a middle class suburb of Phoenix with her husband appellee Michael, David (12), her daughter Sarah (10), and her son Levi (15). Brandy said that everyone had their own bedroom and that the children all cared for each other very much, with some typical squabbling. Sarah and David attended the same school, being one grade apart, and they all attended church. Brandy explained thatDavid was an outstanding scholar, athlete, artist, and all-around citizen, listing several honors David received in the past year. Brandy testified that appellant never sent any support or any correspondence to David since he had lived with them. Brandy said that David "loves us; he's comfortable with us; he's excelling with us, and we love him." Brandy believed that David needed permanency and a place to be, which was with them. Appellee Michael echoed his wife's testimony and added that appellant knew how to contact her family, though they did not necessarily encourage it because his sister was so abusive.

Jessie Reddoch testified that he still lived in California and that over the years he tried to encourage contact between his sister and her son, assuring her that he would forward any gifts or correspondence, but that appellant never sent anything. He opined that over the years appellant was more concerned about herself than with reuniting with her son. Jessie admitted that appellee Michael used drugs maybe fifteen to twenty years ago but that he had no knowledge of any present use.

Lenita testified that her daughters were grown and married, that she moved back to Phoenix in 2001, and that she felt it best for David to be adopted because he loves them, they love him, and he is so happy in appellees' family. Lenita's ex-husband William, who lived in Bella Vista, Arkansas, testified that he believed that the petition for adoption should be granted.

David testified that he wanted to be adopted and that he was happy in his school and his home. David said that he did not enjoy the time he had with his biological mother six or seven years ago because she or her boyfriends would hurt him and that she would getdrunk, throw things, and act crazy. He described being around her as "scary." David said that the last time they talked or saw each other was six or seven years ago and that she said things that upset him. "Everybody is telling me that my mom is not a good person. I know she isn't. The reason I know she hasn't changed is that if she would have changed, she would have gotten her life together.... Deep down inside I do [still love my mom] a little bit."

Appellant contested the adoption, testifying that she lived in a subsidized two-bedroom apartment in Fort Smith with her husband of three years, that she was awarded multiple scholarships to a college in Fort Smith and was working toward a bachelor's degree, that she attended church regularly for the past three years where she was a music minister, and that she was participating in a work-study program. Appellant claimed that she was at this point in her life stable and self confident. Appellant argued that she could not afford to hire attorneys to pursue this action until now and was ready for her son to come home.

On cross examination, appellant did not contest that she had another child, an adult daughter from a previous marriage, whom she had not seen in seven years with the exception of a single telephone call in 2001. Appellant also acknowledged that she had not provided any support for David whatsoever for the previous six years, but she explained that she had tried to reach her son and that the family effectively hid him from her. During the limited telephone contact made early on, appellant said she might have spoken abruptly or angrily, but she denied ever making any threatening remarks to her family. She admitted to havingspent a significant amount of time in jail in 1996 for felony forgery and had a DWI in 1997, but she said she had overcome all those issues.

Appellant's step-daughter testified that she knew appellant missed her son very much and that appellant kept a neat home. Church friends and fellow college students testified about appellant's good character in the church and her dedication to her studies. Appellant's sister-in-law testified about how hurt appellant was at every holiday gathering where she did not have her son. Appellant's husband testified that he worked full time and attended college part time and that he was prepared to be a father to David.

Respective counsel made arguments to the trial judge. Appellees' counsel argued that adoption would be the best thing for David, would end his abandonment from his mother, and was appropriate when appellant waited years to seek court intervention. Appellant's counsel argued that the rest of the family hid David from appellant, thwarting her efforts to see him, and that she should not be punished for taking the time to become educated and settled.

The trial judge rendered his findings at the conclusion of the hearing. He admonished the Shumates for not being candid about their apparent intent to move to Arizona when the guardianship was first entered in 1995, but found that not to be the issue. The judge found that appellant's testimony about efforts to locate her son was not persuasive because there were things that could have been done, even if she were being hampered by the family. The judge suggested that she could have called the trial court itself to seek the location of the child or filed a simple pleading, she could have called opposing counsel, or she could havecalled any juvenile court, but none of that was done. The judge noted that even though appellant was not under court order to pay support for her son, she had some moral obligation to support him to some extent. He also found appellant's testimony to be incoherent and contradictory. The trial judge, considering the best interest of the child, found that appellant's absence for seven years was more than half of David's life, that David was prospering and happy where he was, and that the court would not nor should it interfere after this long a time. In sum, the trial judge found that no consent was necessary given that there was no justification for the admitted lack of contact for at least one year and that adoption was in David's best interest. This appeal resulted.

The first issue on appeal is whether the trial court was clearly erroneous to find that appellant's consent was not required. We hold this finding not to be clearly erroneous. A party seeking to adopt a child without the consent of the natural parent must prove by clear and convincing evidence that the parent failed significantly and without justifiable cause to communicate with the child. Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758 (2000); Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). The issue of justifiable cause is factual but one that largely is determined on the basis of the credibility of the witnesses; we give great weight to a trial judge's personal observations when the welfare of children is involved. See In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). The one-year period may be any one-year period, and need not immediately precede the filing of the adoption petition. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). It is not required that a parent fail "totally" in these obligations in order to fail "significantly"within the meaning of the statutes. Pender v. McKee, supra. A "failure to communicate without justifiable cause" is one that is "voluntary, willful, arbitrary, and without adequate excuse." K.F.H., supra.

Appellant was well familiar with the courts in Sebastian County, she was becoming an educated person and had managed to financially provide for her own education and earn money, yet she effectively abandoned her son to her siblings for far in excess of one year. Appellant's explanation, blaming the gap on her estranged family, was not persuasive to the trial judge, who found there to be no relationship at all between the two for seven years and who found appellant's testimony unreliable. This case turned on credibility, and the trial judge was in a superior position to determine the credibility of the witnesses. See Cassat v. Hennis, 74 Ark. App. 226, 45 S.W.3d 866 (2001). We do not find his assessment to be in error. We affirm on this point.

Appellant's second point on appeal is that it was not in David's best interest to be adopted. We disagree. Before granting an adoption, the trial court must find that the adoption is in the best interest of the child by clear and convincing evidence. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). The law will favor a natural parent over all others if all things are equal. Id. This rule is premised on the presumption that the natural parent is providing care and support for the children to the best of his or her abilities, regardless of how meager those abilities may be. Id. Parental rights are not proprietary ones and are subject to the performance of duties and obligations of a parent to care for and support a child, and the law only protects the rights of parents so long as the parentdischarges these duties. Id. The preference for natural parents should not be continued beyond the point where these duties and obligations have been ignored or shifted to others. Id.; see also Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ark. App.1980); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). This preference for the natural parents is based on the presumption that they will take care of their children, bring them up properly, and treat them with kindness and affection, but when that presumption has been dissipated the courts will interfere and place the child where those duties will be discharged by someone more willing and able to do so. See Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Apel v. Cummings, 76 Ark. App. 93, 61 S.W.3d 214 (2001); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983).

We cannot conclude that the trial judge was clearly erroneous in finding the best interest of David to be served by granting the adoption. Appellant made no attempt to find or connect with David for at least the three years when she described herself as stable and prepared to take David back. David has done exceedingly well in the care of his extended family, particularly with appellees and their children. Therefore, we cannot say that it was not in the best interest of David for the adoption to be granted.

Affirmed.

Gladwin and Neal, JJ., agree.

1 Most "interlocutory" adoption decrees contemplate no further order being entered. Reynolds v. Spotts, 286 Ark. 335, 692 S.W.2d 748 (1985). They become final automatically on a set date more than six months but less than one year after the decree. Id. In view of the lack of entry of a second order in most adoption cases and the resultant confusion as to appealability, the supreme court declared interlocutory adoption orders appealable when no subsequent hearing is required by the terms of the decree. In the Matter of Appeals from Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982); see also McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983); Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000). Such is the case in the present appeal.