Court of Appeals

Cite as 2022 Ark. App. 509

ARKANSAS COURT OF APPEALS

DIVISION III

No.  CV-22-223

            Appellant Casey McClara is the biological mother of three children born between 2006 and 2013.  Casey appeals from the February 2022 Polk County Circuit Court order that denied her motion to set aside the children’s adoption by their maternal grandparents.  Casey argues that the circuit court clearly erred by rejecting her allegation that her parents, appellees Robert and Judith McClara, obtained her consent to adoption by fraud.  

            Casey admittedly has mental-health issues that have required treatment throughout the years.[1]  Casey was convicted of a felony and sent to prison in 2009, so her parents became the primary caretakers for the two older children until she was released in 2010.  Casey and her children moved to Mena to live with her parents in the spring of 2013.  Casey began to pursue her college education shortly after moving to Mena, sometimes staying in Mena and sometimes living on college campus and coming back to Mena to visit on the weekends.  In 2018, Casey moved to Little Rock to attend UALR.  Her parents continued to care for and raise the children in Mena.[2]  Casey usually came back to Mena on weekends. 

            In summer 2019, Robert developed a serious heart condition that might require surgery, which was a major concern because he was the primary source of financial support for the children.  Robert and Judith called Casey to talk about adopting the children so that, if he were to die, the children would be eligible for Social Security income benefits.  Both Robert and Judith promised Casey that she would still have a relationship with the children and would still see them if the adoption went through. Robert told Casey that she would always have visitation and be their mother.  Robert and Judith told Casey that “nothing would change.”  Casey never had a good relationship with her mother, but she adored her father and listened to him. She wanted to talk to the children first, but they voiced their approval on speaker phone during the phone call. 

            Before she signed the adoption consent, Casey visited with her therapist, Lourene Thaxton-Smith, and they discussed Robert’s request that Casey give consent for her children to be adopted, which Casey was willing to do. Ms. Thaxton-Smith said that Casey would do anything to please her father. The therapist believed that Casey’s personality led her to do things that were not in her own best interest, which was something they had worked on in therapy. 

            On July 23, 2019, Casey went with Robert to an attorney’s office in Mena where they met Judith.  No lawyer was present.  Casey was presented with and signed a two-page “Consent To Adopt” document in the presence of the attorney’s secretary, Kim Crawford, who is also a notary.  The document clearly recited Casey’s full identity, her Little Rock address, the identity of her biological children, her consent to permit Robert and Judith to adopt the children, her acknowledgement that adoption was in the children’s best interest, her consent to allow the petition for adoption to proceed, and her acknowledgement that she had ten days within which to withdraw her consent.  According to Ms. Crawford, Casey reviewed the consent document, all three McClaras engaged in about fifteen minutes of small talk, none of the McClaras asked to speak to the attorney (who was not in the office that day), and she gave Casey a copy of appellees’ petition to adopt as well as the consent document.  

On July 24, Robert and Judith filed both their petition to adopt and Casey’s consent in the probate division of circuit court.  In early August, Casey called Ms. Crawford to ask that she fax a copy of the consent document to a finance company in Little Rock.  On November 13, 2019, the circuit court granted the adoption, and it was filed of record on November 27, 2019.  Casey continued to visit with her parents and the children as she had in the past, generally over weekends and by phone, although Casey said she was not allowed to see the children during the Christmas 2019 holiday.  

Over the course of 2020, visitation became complicated.  In mid-February 2020, the COVID pandemic surged, which caused Robert and Judith to be more concerned about Casey coming from Little Rock to Mena to visit.  Judith ended up being bedridden for three months due to COVID.  Also, Judith was in a serious automobile accident.  These factors affected the visitation that Casey was allowed.  Visitation was still conducted over the next year but was limited; sometimes visits were in person and sometimes visits were done electronically; often visits were just a few hours in the daytime with no overnight visits allowed.  Casey and her parents would argue during most of her visits.  There were several loud, disruptive arguments among the children, Casey, and Casey’s parents.  Robert thought that the root of the problem was that Casey was “bad mouthing” Robert and Judith to the oldest child and blaming them for problems with visitation.  Robert thought this was what made the oldest child difficult to deal with and required months of counseling for the oldest child. 

In February 2021, Casey filed a motion to overturn the adoption.  Casey alleged that her consent to adoption was obtained by fraud.[3]  After being served with Casey’s motion, Robert and Judith completely cut off Casey’s visitation. 

            When the motion was heard in February 2022, the witnesses testified about the course of events described above. Casey did not have court-ordered visitation, and Casey admittedly had visited with her children both before and after the adoption was finalized in November 2019 and until early 2021.  Casey, nonetheless, argued that her parents engaged in fraud in July 2019 by promising her continued visitation as an inducement to obtain her consent to the adoption.  Casey said she would never have agreed to the adoption absent her parents permitting her continued visitation.  Indeed, Robert and Judith admitted that they had told Casey at the time they asked for her consent that “nothing would change” in her relationship with her children.  The circuit court heard the testimony and found that Robert and Judith did not fraudulently induce Casey’s consent for adoption with a false promise of continued visitation.  The circuit court found, instead, that Robert and Judith honored their intention to keep visitation going until unforeseen and untenable circumstances limited Casey’s visitation, some having to do with a pandemic and some having to do with Casey’s behavior during visitation.  The circuit court found that Casey did not have any court-ordered visitation rights to protect and that Casey’s visits had become disruptive and unhealthy for the children.  The circuit court denied Casey’s motion to set aside the adoption, and this appeal followed. 

            Adoption proceedings are in derogation of the natural rights of parents, and statutes permitting such are to be construed in a light favoring continuation of the rights of natural parents. In re Adoption of LZ, 2021 Ark. App. 63, 616 S.W.3d 695.  In an appeal from adoption proceedings, we review the record de novo, but we will not reverse the circuit court’s decision unless it is clearly erroneous or clearly against a preponderance of the evidence, after giving due regard to the circuit court’s superior opportunity to determine the credibility of the witnesses.  Id.  In cases involving minor children, a heavy burden is cast upon the circuit court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children’s best interest.  Id.  The appellate court has no such opportunity, and we know of no case in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as one involving minor children.  Id.  A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been made. Id. 

            Setting aside an adoption is, of course, not an easy thing to do.  McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003).  The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof.  Thompson v. Brunck, 2018 Ark. App. 198, 545 S.W.3d 830.  

            On de novo review of this record and giving due regard to the credibility determinations made by the circuit court, we hold that Casey has not demonstrated clear error in the circuit court’s findings.  The circuit court found that Robert and Judith did allow Casey to continue to see her children for more than a year, albeit under modified or restricted terms when the pandemic and Casey’s behaviors raised legitimate concerns about her contact.  Visitation did not cease until Casey filed her petition to set aside the adoption.  Compare Smith v. Smith, 2012 Ark. App. 6 (affirming finding of consent obtained by fraud; biological father and his attorney assured unrepresented mother that her court-ordered visitation in divorce decree would still be honored after stepparent adoption; father sought to limit mother’s visitation four months after adoption).  Each case is necessarily driven by its own facts.  Having considered this appeal under the proper standards of review, we hold that the circuit court did not clearly err in finding that Casey failed to present clear, strong, and satisfactory proof of fraud. 

            Affirmed.

Gruber and Brown, jj., agree. 

Ogles Law Firm, P.A., by: John Ogles, for appellant.

Orvin W. Foster, for appellees.