Henderson v. Callis

Allen Henderson appeals from an order granting appellee Dorothy Callis’s petition to adopt his son, A.H., and terminating appellant’s parental rights with regard to his son. He argues that the trial court erred in terminating his parental rights because the court’s determination was based solely on the fact that he is or has been incarcerated. We agree and reverse the trial court’s order.

This appeal results from appellee’s petition to adopt A.H., who was born out of wedlock on August 30, 1999, to appellant and Racquel Mitchell. In her petition, appellee stated that she had been the child’s guardian since June 20,- 2001; that she had the necessary resources to provide for A.H.; and that appellant and Mitchell were incarcerated. Appellant answered, requesting that the petition be dismissed.

Only appellant and appellee testified at the August 12, 2005 hearing on the petition to adopt. Their testimony established the following facts. Appellant and Mitchell began living together two weeks before A.H. was born; appellant purchased approximately $200 in clothing for the child prior to his birth. Three or four days after A.H. was born, appellant was incarcerated for aggravated robbery and possession of a firearm. He was sentenced to serve ten years in prison and is eligible for parole in December 2006. The trial court acknowledged that, during his incarceration, appellant contacted numerous governmental entities in an attempt to locate his son. He also filed three petitions to establish custody and registered with the Putative Father Registry.

Despite appellant’s efforts, he was unable to contact his son and thus, has had no contact with the child since he was incarcerated. Nor has appellant provided any support for his son since he was incarcerated. Appellant admitted that he currently has no means to support his child but testified that, once he is released, he can provide for A.H. Appellant also volunteered to pay child support upon his release. He explained that when he committed the robbery he had no direction or guidance in his life, but insisted that “now I do” and that he was now “a more-spiritually inclined individual.” He asked the court to look at the man he is now and the man he intends to be in the future.

Appellee was appointed as A.H.’s guardian in January 2001, when the child was approximately fifteen months old, and he has remained in her custody since then. She conceded that she knew that appellant was incarcerated in an Arkansas facility and that Mitchell was incarcerated in Florida or Tennessee. However, appellee neither attempted to find out precisely where the parents were located nor attempted to contact them. She admitted that appellant sent her a letter during the summer of 2005, after he was notified of the adoption petition, to which she did not respond.

During the hearing, appellant moved to dismiss the adoption petition, arguing that his inability to provide for his son because he was in prison is not a sufficient ground on which to grant the petition, especially where he made diligent efforts to contact his son and where he was due to be released on parole in sixteen months. Appellee responded that she had been the child’s sole caretaker since 2001; that appellant was only eligible for parole in 2006 and did not have a transfer date until 2007; that appellant had proven throughout A.H.’s life that he cannot care for him; and that the possibility appellant would provide a stable home for his child was “bleak at best.” She also argued that it was in A.H.’s best interest to solidify the bond that had formed between them.

The trial court stated orally that it was inclined to grant the petition because the child was “entitled to a permanent situation.” However, the court withheld judgment on appellant’s motion to dismiss. Appellant submitted a posttrial brief, arguing that the petition for adoption should be denied because appellee had not shown by clear and convincing evidence that his rights should be terminated; he also argued that his consent to the adoption was required because his failure to support and contact his son was not willful, as demonstrated by his numerous attempts to contact A.H.

The trial court subsequently entered a memorandum opinion in which it granted the adoption petition. Due to appellant’s various attempts to contact his son, the court determined that appellant’s consent to the adoption was necessary but that appellant unreasonably withheld his consent. The court reasoned:

The Respondent here has been incarcerated for approximately eight-and-one half (8 V¿) years between the ages of 17-26. He will not be eligible for parole until December 2006 and with a transport date in April 2007, if he is awarded parole. The child, Allen, is now six years of age. By the time the Respondent may be released from his present sentence, the child will be almost eight years [old]. The majority of this time has been in the home of the Petitioner. According to the testimony of Ms. Callis, the child has thrived in her home.

The court finds that it is in the best interest of the child, that the parental rights of the Respondent be terminated. The Court specifically finds that the consent of the non-custodial parent was unreasonably withheld.

The court subsequendy entered an order terminating appellant’s parental rights.

The trial court ordered termination pursuant to Arkansas Code Annotated § 9-9-220 (c)(3) (Supp. 2005), which authorizes a trial court to order termination where a parent who does not have custody unreasonably withholds consent to adopt. The facts warranting termination of parental rights must be proved by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, this court will not reverse unless the court’s finding is clearly erroneous. See Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. Furthermore, this court will defer to the trial court’s evaluation of the credibility of the witnesses. Id.

We hold that the trial court erred in granting the adoption petition and in terminating appellant’s parental rights merely because he was or has been incarcerated. Affirming the trial court in this case would require us to hold that, where the child of an incarcerated parent is in the court-ordered custody of another person, that parent has an obligation to consent to the adoption of the child merely because the parent is incarcerated and because the child has thrived in the custody of its guardian, even where the parent has undisputedly and actively attempted to establish contact with and to claim paternity of the child.

Although imprisonment imposes an unusual impediment to a normal parental relationship, it is not conclusive on the termination issue. See id. Rather, in deciding whether to terminate the parental rights of a party, the trial court has a duty to look at the entire picture of how that parent has discharged his duties as a parent, the substantial risk of serious harm the parent imposes, and whether or not the parent is unfit. In re Adoption of K.M. C., 62 Ark. App. 95, 969 S.W.2d 197 (1998). Here, appellant did everything a parent in his situation could do to establish and maintain a relationship with his son. Thus, this is not a situation in which the parent refused to have contact with his child while incarcerated or exercised visitation in an inconsistent manner so as to threaten the child’s sense of stability.

Moreover, appellant is not deemed to be unfit simply because he is incarcerated, and there is no evidence that appellant poses a risk to his son. The only evidence is that he purchased clothing for A.H. before he was born and thereafter consistently sought to contact his son ■— actions consistent with a parent who is making a good-faith effort to discharge his parental duties. There are no facts in the record showing that the child would suffer any untoward effect by allowing him to establish a relationship with his father. There is no evidence showing that the child would be adversely affected by knowledge of or association with his father. Even if appellant is not paroled as anticipated, he should be given the opportunity to develop the relationship with his son that he has so ardently worked to establish.

Unless the appellant has been divested of parental rights, appellee, as A.H.’s guardian, has a moral and legal obligation to refrain from engaging in conduct that alienates the child from appellant or that severs the parent-child relationship. However, the record before us shows that appellee consciously took no action to contact appellant regarding the location and welfare of his son even though she knew appellant was located in one of Arkansas’s prisons. Yet, she apparently had no trouble finding appellant when she needed his consent to adopt his son.

On these facts, the record contains no showing that appellant unreasonably withheld his consent. Appellant has no obligation to consent merely because he is incarcerated or even because appellee does not want to communicate with him or have the child exposed to him. Even if appellant had consented to the guardianship, he would not have forfeited his parental rights in so doing. See In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990). Accordingly, we reverse the trial court’s order granting appellee’s adoption petition and terminating appellant’s rights.