474 [ 72 James Lee REID v. Gregory S. FRAZEE CA 00-353 41 S.W3d 397 Court of Appeals of Arkansas Division II
Opinion delivered February 21, 2001 1. ADOPTION - VALIDITIY OF PETITION - SUBSTANTIAL COMPLIANCE WITH STATUTORY REQUIREMENTS. - A petition for adoption is valid where there is substantial compliance with the statutory requirements. 2. ADOPTION - CONSENT & KNOWLEDGE OF ADOPTIVE PARENT - MUST NOT BE PRESUMED. - The consent and knowledge of the adoptive parent must not be presumed. 3. ADOPTION - CONSENT & KNOWLEDGE OF ADOPTIVE PARENT - RECORD PROVIDED AMPLE EVIDENCE. - The record in this case provided ample evidence of knowledge and consent where appellee appeared before the judge and under oath verified the allegations in the petition, and where he presented additional testimony about himself, his concern for the child's welfare, and his commitment to providing for the child financially and emotionally; the evidence concerning appellee's knowledge and participation in the adoption proceeding was before the court, and the probate judge did not abuse his discretion in finding that the statutory requirements had been satisfied. 4. COURTS - INHERENT AUTHORITY - PROTECTION OF INTEGRITY OF PROCEEDINGS & SAFEGUARDING OF RIGHTS OF LITIGANTS. — The trial court has the inherent authority to protect the integrity of the proceedings and to safeguard the rights of the litigants before it. 5. ADOPTION -- MINOR'S CONSENT - TRIAL COURT PROPERLY EXERCISED DISCRETION TO ASCERTAIN. - Once it came to the probate judge's attention that the minor had reached the age of ten, an age requiring the minor's consent under the statute, the trial court properly exercised its discretion to ascertain the minor's consent before entry of its judgment. 6. APPEAL & ERROR - ARGUMENTS RAISED FOR FIRST TIME ON APPEAL - NOT ADDRESSED. - The appellate court does not address issues that are raised for the first time on appeal. 7. ADOPTION - TRIAL COURT DID NOT ERR WHEN IT FOUND APPELLANT'S CONSENT WAS NOT REQUIRED UNDER STATUTE - DEFERENCE TO LOWER COURT. - The appellate court held that the trial court did not err when it found that appellant's consent was not required pursuant to Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1993); in cases involving minor children, a heavier burden is cast upon the
REID V. FRAZEE ARK. APP. ] Cite as 72 Ark. App. 474 (2001) 475 court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interests; the appellate court has no such opportunity, and there is no case in which the superior position, ability, and opportunity of the probate court to observe the parties carries as great a weight as one involving minor children. 8. ADOPTION — REVIEW OF FINDING THAT CONSENT IS NOT REQUIRED — APPELLATE COURT'S INQUIRY. — When reviewing a finding that consent is not required pursuant to Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1993), the appellate court must inquire whether the parent has utilized those resources at his or her command in continuing a close relationship with the child. 9. ADOPTION — PARENT'S FAILURE TO SEEK ENFORCEMENT OF VISITATION RIGHTS — FACTOR TO BE CONSIDERED. — For purposes of determining whether a parent willfully deserted his child or intended to maintain his or her parental role, the trial court may consider as a factor the parent's failure to seek enforcement of his or her visitation rights during the relevant one-year period. 10. ADOPTION — APPELLANT FAILED TO MAINTAIN PARENTAL ROLE — APPELLANT FAILED TO SEEK COURT'S HELP TO ENFORCE VISITATION RIGHTS UNTIL AFTER HE LEARNED OF FIRST ENTRY OF ADOPTION. — Appellant failed to maintain his parental role where he admitted that for more than two years he had no physical, contact •with his son; where he admitted that for more than a year-and-a-half he personally did not pay any court-ordered child support; where he admitted that he spoke with the minor child by phone once a month for six months; and where he did not attempt to utilize the help of a court to enforce his visitation rights until approximately two and a half years after he learned of the first entry of adoption. 11. ADOPTIoN — BEST INTEREST OF MINOR CHILD — PROBATE JUDGE'S FINDING NOT CLEARLY ERRONEOUS. — Where, in contrast to appellant's testimony at trial, the adoptive father, appellee, testified that, despite financial troubles, there was never a question of whether he was going to take care of his children, the appellate court could not say, from a review of the record, that the probate judge's finding that it was in the best interest of the minor child that the adoption be granted was clearly erroneous. Appeal from Pope Probate Court; Richard Gardner, Chancellor; affirmed. James V Coutts, for appellant. Pate & Swain, by: James R. Pate, for appellee.
REID V. FRAZEE 476 Cite as 72 Ark. App. 474 (2001) [ 72 REN R. BAKER, Judge. The appellant, James Lee Reid, R ppeals a second time from the entry of a Final Decree of Adoption that terminated the appellant's rights as the natural father of his minor son and allowed the adoption of the minor son by the husband of appellant's ex-wife. On the first appeal, this Court reversed the probate court's entry of the adoption, holding that Ark. Code Ann. § 9-9-212(a) (Repl. 1993) imposed upon the probate judge a nondiscretionary duty to appoint an attorney ad litem to make reasonable efforts to locate and serve notice upon appellant once the appellees alleged they could not locate him. Reid v. Frazee, 61 Ark. App. 216, 966 S.W2d 272 (1998). Because appellant neither received notice of the petition to adopt nor was an attorney ad litem appointed, we remanded the case for a full hearing on the merits, stating that "the probate court now clearly has jurisdiction to hear this adoption proceeding." Id. at 222, 966 S.W2d at 274. For his first point in this appeal, appellant argues that the trial court erred in granting a Final Decree of Adoption because the adoption statutes had not been strictly complied with in three respects: (1) the appellee Gregory Frazee failed to sign and verify the petition for adoption as required by Ark. Code Ann. § 9-9- 210(a) (Repl. 1993); (2) the trial judge failed to obtain the minor child's consent at the adoption trial as required by Ark. Code Ann. § 9-9-206 (Repl. 1993) and had no power to schedule the subsequent hearing where he ascertained the child's consent to adoption; and (3) the trial court failed to notify the minor child of his right to withdraw consent as required by Ark. Code Ann. § 9-9-208 (Repl. 1993). Appellant's second point for reversal is that the trial court erred in finding that the consent of appellant was not required pursuant to Ark. Code Ann. 5 9-9-207(a)(2) (Repl. 1993) because he had failed to have significant contact with the child or pay support for the child for a period in excess of one (1) year prior to the filing of the Petition for Adoption. Appellant's third point for reversal is that the trial court failed to notify the minor of an asserted right to withdraw consent and that the consent was not in writing as required by Ark. Code Ann. § 9-9-208 (Repl. 1993).
REID /1.. FRAZEE . ARK. APP. Cite as 72 Ark. App. 474 (2001) 477 Appellant's final point for reversal is that the trial court erred in finding that it was in the best interest of the minor child . to be adopted. •We affirm. . Appellee, the .adoptive father, married the child's mother on October 26, 1990, shortly before the child's third birthday .on December 27. He and the mother provided the ,child's primary residence from that time to the present. They moved their residence from Kansas to Arkansas in 1992. Appellee filed the petition for adoption when the child was seven years old. Appellant married, divorced, remarried, and divorced again \ i prior to the adoption proceeding. After filing bankruptcy, he m 1 oved his residence from Kansas to California and began working i 1 t a country club where his mother was employed and had been for nany years. Appellant admitted that he had no in person viSit or i ,. hys . ical contact with the child from August 1, 1993, to the tinie the e r. tition was filed on September 5, 1995. He identified some tempts to speak with the child from pay phones in the summer of 993 and specifically identified a conversation he had with the child July 1994. He admitted that he personally paid . none of the Urt-ordered child support from January 1, 1994, through Sep-4-iber 5, 1995. He blamed his lack of contact with the child on appellee and the child's mother, alleging they , prevented him ftn having contact with the child. He explained that his lack of fimcial support resulted from credit-card debt and medical eknses in connection with the birth of a child on April 28, 1995, totis subsequent marriage. These debts resulted in a bankruptcy. FUtated that he purchased a money order on September 11, 1995, to 'egin paying child support, claiming that, at the time, he knew notnig about the petition for adoption being filed. Appellant did noteek court intervention to enforce his visitation rights under the divoi i . e decree at any time prior to the filing of the petition for . adoption. i. Appellant raised the issue of Gregory Frazee's failure to sign and verify the petition for adoption in the first appeal. We did not reach and discuss the issue because we reversed, finding no jurisdiction resulting from the lack of notice; however, we did specifically state that "the probate court now clearly has jurisdiction to hear this adoption proceeding." Reid, 61 Ark. App. at 222, 966 S.W2d at 274.
REID v. FRAZEE 480 Cite as 72 Ark. App. 474 (2001) [ 72 not in writing, as required by Ark. Code Ann. § 9-9-208 (Repl. 1993). We conclude that this argument is not preserved for appellate review. Appellant did not present these arguments to the trial court, and at the hearing on the issue of the minor child's consent, he objected only on the grounds that the consent was not given in a timely manner. Further, appellant did not ask the court for a ruling on this issue, and we do not address issues that are raised for the firsi time on appeal. Giles v. Sparkman Res. Care Hosp., 68 Ark. App. 263, 6 S.W3d 140 (1999). [7] We also hold that the trial court did not err when it found appellant's consent was not required pursuant to Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1993). "In cases involving minor children a heaviei- burden is cast upon the court to utilize to the fifflest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interests. This Court has no such opportunity, and we know of no case in which the superior position, ability, and opportunity of the probate court to observe the parties carries as great a weight as one involving minor children." In re Adoption of B.A.B., 40 Ark. App. 86, 90, 842 S.W2d 68, 70 (1992)(citations omitted). [8, 9] When reviewing a finding that consent is not required pursuant to Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1993), "we must inquire whether the parent has utilized those resources at his or her command . . . in continuing a close relationship with the child." In the Matter of the Adoption of Titsworth, 11 Ark. App. 197, 201, 669 S.W2d 8, 10 (1984) (quoting Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W2d 765 (1976)). "For purposes of determining whether a parent willfully deserted his child or intended to maintain his or her parental role, the trial court may consider as a factor the parent's failure to seek enforcement of his or her visitation rights during the relevant one-year period." Vier v. Vier, 62 Ark. App. 89, 94, 968 S.W2d 657, 660 (1998). Appellant admitted that from the period of August 1, 1993, to September 5, 1995, he had no physical contact with his son. He further admitted that from January 1, 1994, through September 5, 1995, he personally did not pay any court-ordered child support. In responses to interrogatories, when asked to specify his attempts to talk with the minor child by phone, appellant identified "approx-
REID v. FRAZEE
ARK. APP. ] Cite as 72 Ark. App. 474 (2001) 481 imately once a month for six months from a pay phone in Law-rence, Kansas." In testimony before the court, appellant testified that, "My new wife and my ex-wife went to high school together and I don't think they got along good in high school and it made it difficult for me to call Tyler. That's why I used a pay phone. ... As a result of the friction with my wife Laura, I had to send Tyler home early at some point. ... My new wife didn't like Tyler a whole lot and she called when I was at work and told Jackie to come pick him up, and then Tyler went home. ... I took Tyler [to a hotel] because it caused friction with me and she calls and says come pick him up. So now I have friction between myself and Jackie and myself and my new wife because of the call. ... From my own home I had to go and stay at a motel with my son. That's what caused the big downfall. That was in 1992 in the summer." [10] Appellant did not attempt to utilize the help of a court to enforce his visitation rights until approximately two and a half years after he learned of the first entry of adoption, and approximately six years after what he described as "the big downfall." He attempted to justify his failure to pay the court-ordered child support on financial trouble, including a bankruptcy and credit-card debt. [11] In his final point of on appeal, appellant argues that the court erred in finding that it was in the best interest of the minor child that the adoption be granted. In contrast to the appellant's testimony at trial, the adoptive father, appellee, testified, "My feelings are that we have had a lot of troubles, we've had financial troubles, and yet day to day, we've had to take care of Tyler, and take care of Lucas, and take care of Nicolle, [children born to the marriage of appellee and the minor's mother] and we feel the same pressures and we've had the same financial problems, and all along it was never a question of whether we were going to take care of our children." From a review of the record, we cannot say that the probate judge's finding was clearly erroneous. Affirmed. PITTMAN and ROAF, B., agree.
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