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Newkirk v. Hankins

Court of Appeals of Arkansas, Division III

March 30, 2016

DAVID NEWKIRK, APPELLANT
v.
LISA MARIE HANKINS and JAMES CARROLL HANKINS, APPELLEES

Page 828

          APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT. NO.43PR-16-168. HONORABLE ASHLEY PARKER, JUDGE.

         ROBERT M ABNEY.

         SCARLETT RANELLE MELIKIAN.

         WAYMOND M. BROWN, Judge. VIRDEN and HIXSON, JJ., agree.

          OPINION

Page 829

          WAYMOND M. BROWN, Judge

         Appellant appeals from the circuit court's final decree of adoption in which it granted the appellees' petition to adopt appellant's son, G.N., born 8/21/08; and terminated appellant's parental rights to G.N.[1] On appeal, appellant argues that the circuit court erred in finding that (1) there was clear and convincing evidence that his consent to adoption was not required pursuant to Arkansas Code Annotated section 9-9-207; and (2) it was in G.N.'s best interest for his adoption to be granted over appellant's objection. We affirm.

         Appellant was arrested for attempted capital murder and kidnapping on July 31, 2009. Mary Claressa Davis (Claressa) and her husband, Jeffrey Craig Davis (Jeff) took in G.N. after appellant's arrest.[2] The Davises filed a petition for appointment as guardians of G.N. on August 27, 2009. Appellant filed a consent to the Davises' guardianship on September 11, 2009. Appellant's consent to the Davises' guardianship of G.N. was noted in the circuit court's October 27, 2009 order granting the Davises' petition for guardianship. Appellant pled guilty to the alleged offenses and was sentenced to forty years' imprisonment in the Arkansas Department of Correction (ADC) in an order entered on June 22, 2010.

         The court entered an amended order appointing appellees as successor guardians to G.N. on June 19, 2013. Appellees filed their petition for adoption of G.N. on May 21, 2014. Appellant filed his response objecting to appellees' assertion that his consent was not required and denying his consent. A hearing on appellees' adoption petition was held on February 10, 2015. At the hearing, testimony was as follows.

         Keith Leathers, assistant chief financial officer for the ADC, testified that between December 2, 2010, and February 5, 2015, appellant had received deposits in his account of over $13,000.00; had spent $4,658.48 of that amount on materials to make crafts; and had spent $8,959.72 of that amount on items from the canteen. He stated that appellant was permitted to have checks issued from his account pursuant to a request and approval process. He thought the process was " fairly easy" and noted that appellant was able to get checks approved for numerous leather companies to buy craft materials. He knew of no prohibition on sending money to family members.

         Sky Tapp, a licensed social worker hired by appellees to do a home study, testified that she conducted adult maltreatment checks, child maltreatment checks, Arkansas State Police background checks, and driving record checks on appellees; she found that neither was listed on any registry or had any criminal history.[3] Her

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walkthrough of appellees' home revealed no concerns. She observed a " great bond between the children" and a " very close bond" between G.N. and appellees. She found appellees' home to be " suitable" for adopting G.N.

         Appellee Lisa Hankins testified that she had been a babysitter for G.N., with him spending " two days one week and three the next week" with her for " approximately a year" before he came to live with her and her husband in December of 2012. When she was G.N.'s babysitter, he was living with the Davises, who had guardianship of him after appellant was incarcerated. G.N. had been with the Davises since he was eleven months old. Due to the Davises' financial difficulties, appellees ended up with G.N.

         Lisa stated that G.N. had not had any visits or phone calls with appellant since moving in with her in December 2012, though she acknowledged that appellant had sent sixteen letters to G.N. up through April 2014. She stated that G.N. had a " meltdown immediately," " crying hysterically," during the one visit he had with his " paternal great-grandmother." [4] Appellant had not provided any financial support to G.N. Lisa and her husband have a " close relationship" with G.N., being a " very close family" in which her children and G.N. are " very close, very protective" of one another.

          Lisa stated that G.N. went through counseling once appellees obtained guardianship over him due to his " struggles with permanency and the ins and outs" of his living arrangements and relationships. She opined that G.N. does not understand permanency and thinks that when a person leaves, " that's it; they're gone." He " doesn't understand when someone leaves they will come back." [5] Otherwise, G.N. has no medical problems. It was her understanding that the attorney ad litem and therapist were supposed to determine if contact between G.N. and appellant was to be permitted. Appellees intended not to allow communication between G.N. and appellant unless the attorney ad litem or therapists instructed them to do so. The attorney ad litem and therapist " never" recommended contact between G.N. and appellant. She stated that " if the adoption petition is not granted, nothing is going to change in [G.N.'s] life at this moment."

         Appellee James Hankins testified that " even before" G.N. moved in with them, the appellees' relationship with him was " very similar to what it is today" as G.N. spent " some weekends" with appellees. Since December 2012, appellees have provided all financial support for G.N. James testified that if the adoption was not granted, he thought " everything changes" for G.N., who would be " still stuck in limbo." He reiterated G.N.'s need for permanency in light of G.N.'s belief that when people leave, they " leave forever." He stated that this--people leaving--was G.N.'s experience, having been in three homes in six years. He agreed with Lisa's testimony that he and Lisa had received no calls from appellant; that appellant had sent approximately sixteen letters since December 2012; that appellant had provided no financial support to G.N.; and that the attorney ad litem was to determine

Page 831

whether contact between G.N. and appellant was permissible.

         Appellant testified that he had eight in-person visits with G.N. from April 10, 2011, to November 20, 2012, due to the Davises bringing G.N. to the prison. He began writing letters monthly in 2013; all the letters were sent certified mail. He stated that he had to forward a phone visitation form to persons he wished to call, to be completed and returned by the potential visitor so they could be added to the his call list; he never stated whether he sent the form to appellees. He admitted that over $13,000.00 had come into his account from his mother and stated that he was able to write checks, having been getting them for " about a year and a half." He stated that he used $4,658.00 to purchase leather and stain to do leatherwork, which he does as a hobby and sells for " maybe five, ten, $20.00[.]" All the money in his account came from his mom as he was not able to earn money through the work-release program because he was not eligible for the program due to the crimes for which he was convicted. He received six dollars per year from the state. He would pay support to G.N. if the adoption was denied.

         Appellant stated that Claressa told him she could no longer care for G.N. because it was a " financial struggle for her." He admitted contemplating putting G.N. in a foster home and admitted that he did not send her any money, though he averred that it was because he did not have any money at that time. He stated that he was not aware that he could write checks for child support, thinking he had to have a court order " until here recently." He admitted that he " was getting money deposited to his inmate bank account that [he] could have used for care and support of [G.N.,]" though he did not. He denied that the court told him that there was nothing that prevented him from financially supporting G.N. that he remembered, though he remembered receiving the order in which the same was expressly stated.

         Appellant testified that he was sentenced to forty years' imprisonment, but that he was eligible for parole January 9, 2020. He admitted that there was " a chance" that he could remain incarcerated until after G.N. reached majority. He thought it was " good that [G.N. had] a family that he's bonded with that can provide for him emotionally, financially, and give him stability" and stated that he wanted G.N. to be happy, but he wanted to be able to see his son. He had " considered that it might be traumatic" to G.N. for him to " just reappear someday and try to get back in his life after he's formed a relationship and a bond with the new family." He testified that he did not know appellees had G.N. until the guardianship hearing on the motion to substitute guardians; he did not agree to the substitution. He remembered it being said in court that G.N. could not come and visit him and he " figured that that meant that they was [sic] gonna [sic] have to let the therapist and [the attorney ad litem] decide." Though he " could have obtained this information[,]" appellant admitted that he did not contact the attorney ad litem. Finally, he testified that he is a " better person now[,]" having participated in and completed a list of " self-improvement" activities, including anger management, life skills, thinking errors, and substance abuse education.

         Claressa testified that appellees obtained G.N. due to the Davises' financial difficulties that included them losing their home in December 2012 to foreclosure. G.N. would spend " one or two days a week" with appellees prior to the foreclosure, and James had always said to the Davises " [y]ou need to just let us take care

Page 832

of [G.N.,]" so they gave G.N. to appellees. Appellant " was aware of [the Davises'] financial situation" as she had told him that the Davises' home was in foreclosure. Appellant, knowing nothing about the appellees, suggested putting G.N. in a group home " until [appellant] could get out." Claressa stated that appellant never provided her support because " [h]e couldn't" because " [h]e was incarcerated." She denied that it would surprise her that he had significant deposits of over $13,000.00 in his account between 2010 and 2015.

         Claressa stated that after appellees obtained guardianship over G.N., they would not answer or return her phone calls and the time she was able to see G.N. became " very limited." She said Lisa told her that G.N.'s therapist advised the appellees not to allow G.N. to see the Davises. She admitted that " adoption was discussed prior to the guardianship." She thought it would be " okay" for appellees to adopt G.N., so long as she, her husband, and G.N.'s biological family " would all still be a part of [G.N.'s] life." Though she had not observed the relationship in a while, she testified that she had " observed a close bond and relationship" between appellees and G.N. She had never requested that G.N. be returned to her care.

         Appellant's mother, Ruth Newkirk, testified that though she had a good relationship with G.N. prior to the appellees' guardianship, and tried to maintain it, she was not able to maintain the relationship after appellees obtained guardianship over G.N. She was not able to establish contact with G.N. Though she had previously sought guardianship,[6] she admitted that she was not able to care for G.N. in 2009 or 2012.

         The circuit court entered its final decree of adoption on April 16, 2015, granting appellees' petition to adopt G.N. and terminating appellant's parental rights. It found that appellant's consent to adoption was not necessary pursuant to Arkansas Code Annotated section 9-9-207(a)(2) because he had " willfully failed to pay child support for the minor child in excess of one year[.]" ...


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