Arkansas Cases
MATTER OF THE ADOPTION OF A.M.C. v. DENNIS, 06-820 (Ark.
1-4-2007) In The Matter Of The Adoption Of A.M.C., A Minor,
Paul Vick, Appellant, v. Dennis And Lois Cecil, Appellees.
06-820. Supreme Court of Arkansas Opinion Delivered
January 4, 2007.
Appeal from the Logan County Circuit Court County Court,
No. PR-2004-29, HON. TERRY SULLIVAN, JUDGE, Affirmed.
ANNABELLE CLINTON IMBER, Associate Justice.
This is a case involving the adoption of A.M.C., a minor
child, who is the natural daughter of Appellant Paul Vick
and Appellee Lois Cecil. Paul and Lois were formerly
married, and Lois is currently married to Appellee Dennis
Cecil. On appeal, Paul challenges the entry of an order
granting the adoption of A.M.C. by Dennis. He raises three
points of error: (1) the circuit court erred in declining
to apply the Indian Child Welfare Act of 1978 (“ICWA”),
codified at 25 U.S.C.A. §§ 1901 through 1963
(2006); (2) the court erred in finding that he had
abandoned A.M.C., which finding formed the basis of the
court’s determination that Paul’s consent to the adoption
was not necessary; and (3) the court erred in finding that
the adoption was in the minor child’s best interest. We
affirm the judgment of the circuit court.
Paul and Lois were divorced by a final judgment and decree
filed in the Thomas County Superior Court of the State of
Georgia on May 23, 2002. The decree awarded joint custody
and control of A.M.C. to Paul and Lois. The decree also
incorporated a settlement agreement providing that Lois be
the primary physical custodian of A.M .C. and that Paul pay
child support to Lois in the amount of $80 per week and $40
per week during times of extended visitation. At the time
of the divorce, Lois and the child were living in Arkansas.
From the date of the divorce, May 23, 2002, until July 16,
2004, Paul made thirteen child support payments totaling
$1,140. He maintained regular contact with A.M.C. by
telephone and was able to exercise extended visitation
during the summer of 2002 and Christmas of 2002. In May
2003, Paul was arrested in Georgia on a felony
methamphetamine charge and incarcerated in the county jail
for three months. Then, upon his conviction, Paul was
transferred to the penitentiary where he remained
incarcerated until May 3, 2004. During his term of
imprisonment, Paul communicated with A.M.C. by mail and
phone. Upon release from the penitentiary, Paul immediately
contacted Lois in an effort to exercise summer visitation
with A.M.C. She refused his request and four days later, on
May 7, 2004, Dennis and Lois filed a petition to adopt
A.M.C. The petition alleged that Paul’s consent to the
adoption was not required because “he has never paid child
support and has not seen the minor child in over two (2)
years.” Sometime that same month, Lois changed her
telephone number and denied Paul and his mother, Shirley
Fradee, contact with A.M.C. because Lois “did not want them
calling, harassing.”
On July 24, 2004, Marian S. McCormick, the Principal Chief
of The Lower Muskogee Creek Tribe, sent the circuit judge a
letter in which she expressed the tribe’s objection to the
adoption. Paul filed an objection to Dennis and Lois’s
petition for adoption on July 28, 2004, alleging that Lois
had changed her telephone number, failed to notify him of
A.M.C.’s current address, and denied him the right to
exercise visitation in the summer of 2004. Paul also
asserted that he and A.M.C. are of American Indian descent
and members of The Lower Muskogee Creek Tribe. Finally, he
claimed to have made regular child support payments until
he lost his job in October 2002 and got into trouble with
the law. Child support records introduced at trial without
objection confirm that Paul made no child-support payments
between October 18, 2002, and May 21, 2004.
One year after Dennis and Lois filed the petition, Paul
filed a motion to register foreign judgment and a motion to
enforce visitation. The circuit court went forward with the
adoption hearing on September 21, 2005, but, in view of its
concern about the ramifications if the child had the
requisite Indian ancestry, the court requested trial briefs
on the issue of whether the ICWA should be applied in this
case. Ultimately, the circuit court entered a decree,
concluding that the ICWA did not apply to the case, that
Paul’s consent to the adoption was not required in that he
failed to pay child support for a period in excess of one
year, and that the adoption was in the best interest of the
minor child. From that judgment, Paul now appeals. This
appeal involves an issue of first impression; thus, our
jurisdiction is proper pursuant to Ark. Sup. Ct. R.
1-2(b)(1) (2006).
The appellate court reviews issues of statutory
construction de novo, as it is for the appellate court to
decide what a statute means; the court is not bound by the
circuit court’s decision; however, in the absence of a
showing that the circuit court erred, its interpretation w
ill be accepted as correct on appeal. In re Adoption of S.C
.D ., 358 Ark. 51, 186 S.W .3d 225 (2004).
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 Lybrand, 329 Ark.
163, 946 S.W.2d 946 (1997); In re Adoption of K.F.H. and
K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). A circuit
court’s finding that consent is unnecessary because of a
failure to support or communicate with the child will not
be reversed unless clearly erroneous. In re Adoption of
K.F.H. and K.F.H., supra.
1. The Indian Child Welfare Act
For his first point on appeal, Paul argues that the circuit
court erred when it went forward with the adoption
proceedings in light of an objection interposed by The
Lower Muskogee Creek Tribe. Specifically, Paul asserts that
the circuit court should not have granted the adoption of
an Indian child without the consent of the Tribe and without
the clear proof required by the Indian Child Welfare Act.
The Indian Child Welfare Act of 1978 (“ICWA”), codified at
25 U.S.C.A. §§ 1901 through 1963 (2006), was
enacted to “protect the best interests of Indian children
and to promote the stability and security of Indian tribes
and families.” 25 U.S.C.A. § 1902 (2006). Congress
noted in the Act that “there is no resource that is more
vital to the continued existence and integrity of Indian
tribes than their children and that the United States has a
direct interest, as trustee, in protecting Indian children
who are members of or are eligible for membership in an
Indian tribe.” 25 U.S.C.A. § 1901 (2006). The Act
also provides “minimum Federal standards for the removal of
Indian children from their families and the placement of
such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by
providing for assistance to Indian tribes in the operation
of child and family service programs.” 25 U.S.C.A. §
1902.
As support for his argument on this point, Paul cites the
following provision of the ICWA, 25 U.S.C.A. §
1912(f) (2006), which states:
No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported by
evidence beyond a reasonable doubt, including testimony
of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage
to the child.
25 U.S.C.A. § 1912(f) (2006).
In order to decide whether the ICWA applies to the instant
case, we must first determine whether the proceeding is a
“child custody proceeding” as defined by the ICWA. 25
U.S.C.A. § 1903(1)(2006). Once that determination is
made, we must ascertain whether the child is an “Indian
child” as defined by the ICWA. 25 U.S.C.A. § 1903(4).
That determination ultimately depends upon whether the
Indian child is a member of a federally recognized tribe.
25 U.S.C.A. § 1903(8). See In re A.D.L., 169 N.C.
App. 701, 612 S.E.2d 639 (2005).
There is no dispute that the adoption proceeding at issue
here is included within the definition of a “child custody
proceeding” under the ICWA; that is, it involves an
“adoptive placement” defined as “the permanent placement of
an Indian child for adoption, including any action
resulting in a final decree of adoption.” 25 U.S.C.A.
§ 1903(1)(iv). Yet, A.M.C. does not come within the
ICWA’s definition of an “Indian child.” An “Indian child”
is defined as “any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe” 25
U.S.C.A. § 1903(4). The ICWA defines “Indian tribe”
as “any Indian tribe, band, nation, or other organized
group or community of Indians recognized as eligible for
the services provided to Indians by the Secretary because of
their status as Indians, including any Alaska Native
village as defined [by statute].” 25 U.S.C.A. §
1903(8).
While it is undisputed that A.M.C. is a registered member
of The Lower Muskogee Creek Tribe of Georgia, the Tribe is
not federally recognized as eligible to receive services
from the United States Bureau of Indian Affairs (“BIA”).
See 70 Fed. Reg. 71194-71198 (Nov. 25, 2005). Furthermore,
as far back as January 29, 1981, the BIA recommended that
the Tribe not be acknowledged as an Indian tribe entitled to
a government-to-government relationship with the United
States. See 46 Fed. Reg. 51652-05 (notice given of
determination that the Tribe does not exist as an Indian
Tribe within the meaning of federal law (October 21,
1981)). Thus, there was no evidence to support a finding
that A.M.C. is an “Indian child” under the ICWA.
We therefore hold that the circuit court correctly ruled
that the ICWA does not apply to this adoption proceeding
because A.M .C. is neither eligible for membership nor a
member of a federally-recognized tribe. In other words, The
Lower Muskogee Creek Tribe is not an “Indian tribe” as
defined in the ICWA. Consequently, the circuit court was not
required to hear expert testimony pursuant to 25 U.S.C.A.
§ 1912(f).
Despite the Tribe’s lack of federal recognition, Paul
points out that The Lower Muskogee Creek Tribe is
recognized by the State of Georgia. See Ga. Code Ann.
§ 44-12-300 (1993). In an alternative argument, Paul
relies upon other Arkansas statutes to support his
proposition that Arkansas law relating to custody must give
way to the desires and traditions of Indian tribes
recognized by other states, as well as the federal
government. In that regard, he makes specific reference to
certain statutory provisions in the Arkansas Uniform
Child-Custody Jurisdiction and Enforcement Act, codified at
Ark. Code Ann. §§ 9-19-101 through 9-19-401
(Repl. 2002; 2005):
Ark. Code Ann. § 9-19-104, which provides, in part,
the following:
(a) A child-custody proceeding that pertains to an Indian
child as defined in the Indian Child Welfare Act, 25
U.S.C. § 1901 et seq., is not subject to this
chapter to the extent that it is governed by the Indian
Child Welfare Act.
(b) A court of this state shall treat a tribe as if it
were a state of the United States for the purposes of
applying subchapters 1 and 2 of this chapter.
Ark. Code Ann. § 9-19-102(16) that defines “Tribe”
to mean
[A]n Indian tribe or band, or Alaskan Native village,
which is recognized by federal law or formally
acknowledged by a state.
He also points to Ark. Code Ann. § 28-73-103(18),
part of the Arkansas Trust Code, where “an Indian tribe or
band recognized by federal law or formally acknowledged by
a state” is included within the Trust Code’s definition of
“State.” Similarly, the term “State” includes “an Indian
Tribe” in the Uniform Interstate Family Support Act,
codified at Ark. Code Ann. §§ 9-17-101
through 902 (Repl. 2002). See Ark. Code Ann. §
9-17-101(19)(i).
Paul’s alternative argument is without merit. The Arkansas
General Assembly has expressly indicated that the statutory
definitions in each chapter only apply in the context of
that particular chapter — Chapter 19 of Title 9 (The
Arkansas Uniform Child-Custody Jurisdiction and Enforcement
Act); Chapter 73 of Title 28 (The Arkansas Trust Code); and
Chapter 17 of Title 9 (The Uniform Interstate Family Support
Act). See Ark. Code Ann. §§ 28-73-103,
9-19-102, and 9-17-101. Moreover, Ark. Code Ann. §
9-19-104(a) clearly states that the provisions of the ICWA
govern when a proceeding “pertains to an Indian child as
defined in the Indian Child Welfare Act, 25 U.S.C. §
1901 et seq.,. . . .” (emphasis added). Thus, according to
Arkansas law, the provisions of ICWA, including the proof
required under 25 U.S.C. 1912(f), only apply if the
proceeding involves a child who is an “Indian child” as
defined in the ICWA. See also State v. Klamath Tribe, 170
Or. App. 106, 116, 11 P.3d 701, 707 (2000) (“For purposes
of ICWA, only Congress can define who is an Indian
child.”); cf. Mississippi Choctaw Indian Band v. Holyfield,
490 U.S. 30 (1989) (explaining that, unless Congress has
clearly expressed its intent that an ICWA term be given
content by the application of state law, the Court will
presume that Congress did not so intend). In short, the
General Assembly has not specifically adopted the
requirements of the Indian Child Welfare Act. See Baker
Refrigerator Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d
900 (2005).
2. Consent to adoption
For his second point on appeal, Paul argues that the
circuit court erred in finding that he had abandoned
A.M.C., thereby making it unnecessary for him to consent to
the adoption. Specifically, Paul asserts that the circuit
court’s findings were not supported by the evidence and
were a misapplication of the law.
Pursuant to Ark. Code Ann. § 9-9-207(a)(2) (Supp.
2005) of the Arkansas Revised Uniform Adoption Act, consent
to adoption is not required of a parent whose child is 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.” Similarly,
“Abandonment” is defined in the Act as
[T]he 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 justifiable cause for a
period of one (1) year shall constitute a rebuttable
presumption of abandonment.
Ark. Code Ann. § 9-9-207(7) (Repl. 2002).
Our court noted in In re Adoption of Lybrand, 329 Ark. 163,
169, 946 S.W.2d 946, 949 (1997), that “[t]he `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.'” Also important
to note is that the one-year period may be any one-year
period, not merely the one-year period preceding the filing
of the petition for adoption. Pender v. McKee, 266 Ark. 18,
582 S.W .2d 929 (1979). Furthermore, it is not required
that a parent fail “totally” in these obligations in order
to fail “significantly” within the meaning of the statutes.
Id. 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. Id.
Our analysis must now turn to whether the circuit court’s
finding of abandonment without justification was clearly
erroneous. In re Adoption of K.F.H. and K.F.H, 311 Ark.
416, 844 S.W.2d 343 (1993). We view the issue of
justifiable cause as factual and, thus, one that largely is
determined on the basis of the credibility of the
witnesses. Id. This court gives great weight to a trial
judge’s personal observations when the welfare of young
children is involved. Id.
In the instant case, we cannot say that the circuit court
erred in holding that Paul had failed significantly,
without justifiable cause, to support A.M.C. We have said
that
The parent must furnish the support and maintenance
himself and the duty is a personal one, and he may not
rely upon assurance that someone else is properly
supporting and maintaining the child to avoid the impact
of the statute’s providing for adoption of his child
without his consent because of his failure to support the
child.
Pender v. McKee, 266 Ark. 18, 31, 582 S.W.2d 929, 935
(1979).
The evidence is undisputed that Paul did not pay child
support from October 18, 2002, until May 21, 2004, which is
obviously more than one year. His delinquent child-support
payments totaled $11,800. Although Paul kept in contact
with A.M.C. during the period of his incarceration, our law
is very clear that failure to pay child support for the
requisite time period constitutes abandonment under sections
9-9-202(7) and 9-9-207(a)(2). Certainly a large part of the
delinquent support accumulated when Paul was incarcerated
for felony methamphetamine possession. While incarceration
is not, of itself, conclusive on the termination issue,
imprisonment does not toll a parent’s responsibilities
toward his or her children. Linker-Flores v. Arkansas
Dep’t. of Human Services, 364 Ark. 224, ___ S.W.3d ___
(2005) (citing M alone v. Arkansas Dep’t of Human Services,
71 Ark. App. 441, 30 S.W.3d 758 (2000)). Applying the
principles of Pender v. McKee, supra, 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. In other words, the fact that Lois changed her
telephone number did not excuse or prevent Paul from making
child-support payments. Even after his release from prison,
Paul made no child-support payments between July 16, 2004,
and the date of the hearing in September 2005.[fn1]
Furthermore, testimony elicited at trial showed that Paul
paid $700 to an attorney in Georgia in connection with the
filing of a contempt motion against Lois.
Based on the record before us, we cannot say that the
circuit court erred in holding that Paul’s consent to the
adoption was not required under Ark. Code Ann. §
9-9-207 because he had failed significantly, without
justifiable cause, to support A.M.C. for a period of one
(1) year. Accordingly, we affirm on this point.
3. Best Interest of the Child
For his third and final point on appeal, Paul argues that
the best interest of A.M.C. will not be served by granting
the adoption and severing her relationship with him and his
family. As stated earlier, the circuit court correctly
determined that Paul’s consent was not required. Before an
adoption petition can be granted, the circuit court must
further find from clear and convincing evidence that the
adoption is in the best interest of the child. Dixon v.
Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). We will not
reverse a circuit 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 circuit
court to judge the credibility of the witness. In re
Adoption of Lybrand, supra.
In the instant case, Paul testified that prior to seeing
A.M.C. in September 2005 at the hearing, he had not
physically seen A.M.C. since 2002. There was also testimony
that A.M.C. refers to Dennis as “Daddy,” and that she
refers to Paul as “Daddy Paul.” Dennis testified (1) that
he is willing to support A.M.C. in the event that he and
Lois should divorce; (2) that he has worked as a carpenter
for four years; (3) that A.M.C. has her own bedroom at
their home; and (4) he understands the responsibilities
associated with adopting A.M.C. Lois stated that Dennis is
“[t]he best dad that you could ask for” and that Dennis
does “everything” with A.M.C. In other testimony, Paul
admitted that he had “roughly” five or six felonies,
including kidnaping, aggravated assault, theft of a motor
vehicle, theft by receiving, and fencing property, although
the methamphetamine conviction was the only trouble he had
been in within the past twenty years. At the hearing, Paul
stated he was unemployed and lived with his mother, but he
offered to give up his bedroom in order for A.M.C. to have
her own room.
The circuit court determined that the adoption of A.M.C. by
Dennis and Lois was in the best interest of the child.
Specifically, the circuit court determined that “[Dennis
and Lois] are morally fit to have the custody of the child
and are physically and financially able to furnish suitable
support, nurture, and education for the child and
furthermore desire to establish the relationship of parents
and child with aforesaid child.”
Based on the record before us and giving due regard to the
opportunity and superior position of the circuit court to
judge the credibility of the witnesses, it cannot be said
that the circuit court’s findings were clearly against the
preponderance of the evidence.
Affirmed.
DANIELSON, J., not participating.
[fn1] There was testimony elicited at trial that Paul “may
have paid $150 in there somewhere,” but no record exists of
that payment.