In the Matter of the Adoption of Lybrand

IN THE MATTER OF THE ADOPTION OF Kristen Dyan
LYBRAND; John Wesley King v. Sharon Lybrand

97-94                                              ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 23, 1997


1.   Adoption -- jurisdiction -- trial court had personal
     jurisdiction of appellant. -- Where appellant appeared in the
     adoption proceeding; where, instead of asking that the matter
     be dismissed for lack of notice to him, he asked that the
     adoption be set aside and the proceeding reopened; and where
     this request was honored, the supreme court had no hesitation
     in concluding that the trial court had personal jurisdiction
     of appellant.

2.   Appeal & error -- abstract did not reflect ruling on issue at
     trial -- issue not reached on appeal. -- Appellant's argument
     that the Putative Father Registry Act, Ark. Code Ann.  20-
     18-701 through 20-18-705 (Repl. 1991 and Supp. 1995), was
     unconstitutional was not addressed on appeal where the
     abstract of the record did not demonstrate that any ruling was
     made on the point at trial.  

3.   Adoption -- adoption statutes strictly construed -- finding
     that consent unnecessary on account of nonsupport or failure
     to communicate not reversed unless clearly erroneous. --
     Adoption statutes are strictly construed; a person who wishes
     to adopt a child without the consent of the parent must prove
     that consent is unnecessary by clear and convincing evidence;
     a finding that consent is unnecessary on account of a failure
     to support or communicate with the child is, however, not
     reversed unless clearly erroneous; the issue of justifiable
     cause is viewed as factual but one that is largely determined
     on the basis of the credibility of the witnesses; the supreme
     court gives great weight to a trial judge's personal
     observations when the welfare of young children is involved. 
     

4.   Adoption -- principles relevant for examination of consent
     statutes -- duty to support not excused on basis of other
     people's conduct unless that conduct prevents performance of
     duty. -- In analyzing the relevant consent statutes,
     additional principles are relevant: a failure to communicate
     without justifiable cause is one that is voluntary, willful,
     arbitrary, and without adequate excuse; the one-year period,
     moreover, may be any one-year period, not merely the one-year
     period preceding the filing of the adoption petition; it is
     not required that a parent fail "totally" in these obligations
     in order to fail "significantly" within the meaning of the
     statutes; the duty to support is not excused on the basis of
     other people's conduct unless such conduct prevents the
     performance of the duty of support. 

5.   Adoption -- abandonment of child given as ground for adoption
     -- trial court's decision that appellant's consent unnecessary
     not clearly erroneous. -- The trial court determined that
     under Ark. Code Ann.  9-9-207 (a)(1) (Repl. 1993), consent to
     adoption is not required from a parent who has "abandoned" a
     child; where appellant denied paternity when support for the
     child was sought and did not attempt to assert his paternity
     until some eight years later, and there was no "paper record"
     of any support being paid, the supreme court could not say,
     given the deference accorded to the trial court's
     determination of the credibility of the witnesses, that it was
     clearly erroneous to hold that appellant's consent was not
     required.

6.   Adoption -- decision regarding best interest of child to be
     adopted -- when reversed. -- The supreme court will not
     reverse a probate court's decision regarding the best interest
     of a child to be adopted unless it is clearly against the
     preponderance of the evidence, giving due regard to the
     opportunity and superior position of the trial court to judge
     the credibility of the witnesses.


7.   Adoption -- evidence in support of adoption positive -- no
     error found in trial court's granting of petition for
     adoption. -- Where the evidence presented with respect to the
     putative adoptive father's relationship with the child was all
     positive, his marriage to the child's mother was apparently
     stable, and he had worked for the same employer for sixteen
     years and was apparently able to continue supporting his
     family, the supreme court could not say that the trial court
     erred in granting the adoption petition.


     Appeal from Grant Probate Court; Gary Arnold, Probate Judge;
affirmed.
     Thurman, Lawrence & Heuer, P.L.C., by:  Sam Heuer, for
appellant.
     No response.

     David Newbern, Justice.
     This is an adoption case in which the natural father of the
adopted child challenges the adoption on the ground that he
received no notice and did not give his consent.  He further
contends the adoption was not in the best interest of the child. 
We affirm the decision.  
     The appellant, John Wesley King, and a woman whose name is now
Sharon Lybrand married in 1976.  They divorced and then remarried. 
After the divorce and prior to their remarriage in 1984, Kristen
Dyan Lybrand was born to Ms. Lybrand.  Mr. King and Ms. Lybrand
thereafter divorced again, and the decree did not mention Kristen. 
Ms. Lybrand married Joseph Lybrand in 1986.  In 1987, Ms. Lybrand
sued Mr. King alleging that he was the father of Kristen and
seeking child support.  Mr. King denied paternity, and apparently
the action was dropped by Ms. Lybrand.  
     In March 1995, Mr. King filed a "visitation motion" in Pulaski
County where he resides, asserting that he is the father of
Kristen.  In May 1995, Mr. Lybrand petitioned the Grant Probate
Court to adopt Kristen.  On June 13, 1995, Mr. King's Pulaski
County action was dismissed, as venue was improperly laid.  It was
refiled as a paternity action by Mr. King in Grant County on June
16, 1995.  Ms. Lybrand answered and denied Mr. King's allegation
that he was Kristen's father.
     On August 22, 1995, a final adoption order was entered in
favor of Mr. Lybrand.  On August 31, 1995, Ms. Lybrand moved to
dismiss Mr. King's paternity suit, attaching to her motion the
final adoption decree making Kristen the daughter of Mr. Lybrand.
     Mr. King moved to set aside the adoption decree and to
"reopen" the adoption proceeding.  He claimed he was entitled to
have notice of the adoption proceeding but had not received notice. 
The motion to set the adoption aside was granted, and the
proceeding was thus reopened.  Prior to the ensuing hearing, Ms.
Lybrand filed a further response to Mr. King's paternity action,
and she admitted that Mr. King was Kristen's father.  
     At the ultimate hearing, there was testimony about acrimony
between Ms. Lybrand and Mr. King.  The evidence showed that,
although Ms. Lybrand allowed the child to spend considerable time
with Mr. King's mother, she attempted to keep Mr. King from seeing
the child.  Mr. King asserted that he had indeed seen Kristen
despite the attempts to keep her away from him and that he had
supported her to some extent by reimbursing his mother for gifts
and expenditures she had made for Kristen.  
     The Lybrands contended Mr. King was not entitled to notice of
the adoption proceeding because he had not registered as a putative
father pursuant to Ark. Code Ann.  20-18-702 (Repl. 1991) and
because he had abandoned or deserted Kristen.  The Trial Court's
order dismissed Mr. King's paternity petition and granted Mr.
Lybrand's adoption petition.  Mr. King has raised four points of
appeal.  

                         1. Jurisdiction
     Mr. King contends that he was not given notice of the
initiation of the adoption petition by Mr. Lybrand.  He contends
the failure to give him notice was fatal to the Trial Court's 
"jurisdiction" because of the lack of strict compliance with the
adoption statutes requiring such notice.  Although he does not say
so directly, Mr. King's suggestion seems to be that the Court in
that circumstance lacks jurisdiction of the subject matter.  That
is not so.  The cases Mr. King cites have to do with jurisdiction
of the person.  
     In Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946), the
natural parent of an adopted child petitioned for habeas corpus
contending that the adoption was invalid because the natural
parents had not been given notice.  The writ was granted, and we
affirmed.  Our holding was that the adoption was void because the
nonresident parents of the child had not been given notice by
publication as required by statute.  We held, "it was necessary
that service be obtained by publication as provided in  256 of
Pope's Digest, ... before the probate court could acquire
jurisdiction of the person of the appellee."  Hughes v. Cain, 210
Ark. at 482, 196 S.W.2d  at 760 (emphasis added).
     In Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), we
held that lack of notice was not sufficient to void an adoption
where the complaining natural parent had entered an appearance in
the proceeding.  In Schrumm v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976), the natural parent of the child sought to be adopted
was a minor.  We voided the adoption because she had not received
service of process.  The opposing argument was that she had entered
her appearance in the adoption proceeding.  We rejected that
argument on the ground that, as a minor, she was unable to enter an
appearance except through a guardian, and that had not occurred.
     The last case cited by Mr. King on the jurisdiction point is
Olney v Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966), in which we
held a foreign adoption decree entered without notice to the
natural parent or evidence of his entry of appearance was void and
thus not entitled to full faith and credit.  Again, the issue was
not jurisdiction of the subject matter. 
     Mr. King did clearly appear in the adoption proceeding. 
Instead of asking that it be dismissed for lack of notice to him,
he asked that the adoption be set aside and the proceeding
reopened.  The request was honored, and we have no hesitation in
concluding the Trial Court had personal jurisdiction of Mr. King.

                 2. Putative Father Registry Act
     One of the Lybrands' contentions before the Trial Court with
respect to the notice issue was that, as Mr. King had not
registered his paternity claim pursuant to the Putative Father
Registry Act, Ark. Code Ann.  20-18-701 through 20-18-705 (Repl.
1991 and Supp. 1995), he was not entitled to notice.  On appeal,
Mr. King argues, as he did before the Trial Court, that the Act is
unconstitutional.  We decline to address the argument, as the
abstract of the record does not demonstrate that any ruling was
made on the point.  Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark.
407, 939 S.W.2d 280 (1997); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).

                           3.  Consent
     Mr. King contends his consent to the adoption was necessary
and was obviously not given.  Ark. Code Ann.  9-9-207 (Repl. 1993)
provides:
          (a) Consent to adoption is not required of:
          (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.
                               ***

     "Abandonment" is defined in Ark. Code Ann.  9-9-202(7)
(Repl. 1993) as:

     . . . the failure of the parent to provide reasonable support
     and to maintain regular contact with the child through
     statement or contact, when the failure is accompanied by an
     intention on the part of the parent to permit the condition to
     continue for an indefinite period in the future, and failure
     to support or maintain regular contact with the child without
     just cause for a period of one (1) year shall constitute a
     rebuttable presumption of abandonment.

This definition is relevant to  207(a)(1), as that provision
excuses the necessity of consent from a parent who has "abandoned"
a child and was cited by the Trial Court as a ground for granting
the adoption despite the lack of consent from Mr. King.
     The "abandonment" definition overlaps a bit with the language
in  207(a)(2).  Under both provisions, the question is whether the
periods of non-communication or non-support resulted "without just
cause" or were "justifiable."  The justification proffered by Mr.
King is that Ms. Lybrand was the sole reason he was unable to see
his daughter.
     Adoption statutes are strictly construed, and a person who
wishes to adopt a child without the consent of the parent must
prove that consent is unnecessary by clear and convincing evidence. 
In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343
(1993); Harper v. Caskin, 265 Ark. 558, 561, 580 S.W.2d 176, 179
(1979)(stating adoption petitioner's burden is "heavy").  A finding
that consent is unnecessary on account of a failure to support or
communicate with the child is, however, not reversed unless clearly
erroneous.  K.F.H, supra.  "We view the issue of justifiable cause
as factual but one that largely is determined on the basis of the
credibility of the witnesses.  This court gives great weight to a
trial judge's personal observations when the welfare of young
children is involved."  K.F.H., 311 Ark. at 423, 844 S.W.2d  at 347.
     In analyzing these consent statutes, some additional
principles are relevant.  A "failure to communicate without
justifiable cause" is one that is "voluntary, willful, arbitrary,
and without adequate excuse."  K.F.H., 311 Ark. at 421, 844 S.W.2d 
at 346.  The one-year period, moreover, may be any one-year period,
not merely the one-year period preceding 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, 266 Ark. at 28, 582 S.W.2d  at 934.  The
duty to support is not excused on the basis of other people's
conduct unless such conduct prevents the performance of the duty of
support.  Pender v. McKee, 266 Ark. at 31, 582 S.W.2d  at 935.
     Mr. King's justification argument must be considered in light
of his denial of paternity when support for Kristen was sought by
Ms. Lybrand in 1987 and his failure to assert his paternity until
1995.  Although Mr. King and his mother testified that he supported
Kristen somewhat through his mother and that he sneaked visits with
Kristen when she was visiting with his mother, there is no "paper
record" of support whatever.  Given the deference we accord to the
Trial Court's determination of the credibility of the witnesses, we
cannot say it was clearly erroneous to hold Mr. King's consent was
not required.

                        4. Best interest     
     In this fourth point, the question is whether the judge was
correct to conclude that the adoption was in Kristen's best
interest.  We will not reverse a probate court's decision regarding
the best interest of a child to be adopted unless it is clearly
against the preponderance of the evidence, giving due regard to the
opportunity and superior position of the trial court to judge the
credibility of the witnesses.  In the Matter of the Adoption of
Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); Dixon v.
Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985).
     The evidence presented with respect to Mr. Lybrand's
relationship with Kristen was all positive.  His marriage to Ms.
Lybrand is apparently stable, and he has worked for the same
employer for sixteen years and is apparently able to continue
supporting his family.  There was some evidence that in the past
Mr. Lybrand had a drinking problem and exhibited some tendency
toward violence, but there was also evidence that he had quit
drinking.  On the whole, we cannot say that the Trial Court erred
in granting Mr. Lybrand's petition.
     Affirmed.