dissenting. I dissent. The facts and holding in this case merely reemphasize what I had to say in my dissent in Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983). As in Dodson, this adoption proceeding emanates from a divorce action, but the instant case differs in that it involves a dispute between the maternal grandmother and the child’s father instead of a direct confrontation between ex-spouses. In Affirming the trial court’s decision, I quickly note the majority relies on Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981), and Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), but fails to mention Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979). In my dissent in Dodson v. Donaldson, supra, I dealt with the significance of choosing between these cases when arguing adoption cases. Thus, I will not belabor that point again.
The facts in this case depict better than I ever could the reason why Ark. Stat. Ann. § 56-207 (a) (2) of our 1977 Adoption Act should be at least modified — if not repealed — by our General Assembly. Instead of warring parents, we have an added ingredient to this adoption proceeding — a warring grandmother (the appellee) pitted against a former son-in-law (the appellant).
The appellant had no sooner divorced his wife (December 14, 1976) than appellee filed her first petition for adoption (January 14, 1977). Appellant was residing and working in Alaska when the divorce decree was entered and the adoption petition was filed; nevertheless, he promptly filed his objection to any adoption of his child, and the appellee voluntarily dismissed her adoption action. After the divorce and adoption proceedings, appellant’s relationship with the appellee and his former wife continued to deteriorate. In fact, appellant had to return to Arkansas on two separate occasions to file contempt petitions against appellee to enforce his court-ordered visitation privileges. His second contempt petition was filed on June 1, 1978, and it resulted in his seeing his son for the last time. Interestingly enough, the appellee, during this particular dispute between the parties, charged that appellant was not the child’s father. Furthermore, she requested the court to order that appellant be subjected to tests to determine paternity. Appellee subsequently withdrew her request, and appellant was given visitation with his son; but afterwards, appellee began to move, living in at least four different municipalities between October, 1978, and May, 1979. Appellant testified that during this period he could not find appellee or his son. In fact, he stated that he did not learn of appellee’s whereabouts until after this adoption action was filed on November 3, 1980. Appellee admitted that she never advised appellant of these moves nor of her addresses. She also conceded that she did not notify the court clerk’s office — to which support payments were sent — of any of her moves or address changes until December 23, 1980. Thus, it was after she filed this adoption action and nineteen months after her last move before she informed the court where she was living. One must remember that the trial court and this Court’s majority, in dispensing with appellant’s consent to the adoption of his son, rely on the period from February, 1979, through December, 1980, finding that during that time appellant failed to support or communicate with his child. I must say that if appellee’s acts do not justify appellant’s failure to support or contact his child, few cases will present facts that offer justification.
In conclusion, I again register my dissatisfaction with our appellate courts’ treating adoption cases as though they were custody actions. I will be the first to admit that appellant might not fit the role of a model parent. However, our courts in post-decretal actions (and I believe rightfully so) have taken a dim view of fathers or mothers who fail to support and care for their children; accordingly, they have granted judgments for support arrearages, and have incarcerated parents who fail to fulfill their legal responsibilities to their offspring. In taking such actions, courts have recognized a parent’s right to visitation with his or her child as being independent of a duty to support the child.
Adoption actions should be viewed differently. After all, in divorce cases, courts enforce support and visitation orders, recognizing the importance of the family relationship. In contrast, courts in adoption cases sever family ties —an action that should be taken only when the evidence clearly reflects that a parent has abdicated his or her responsibility to a child. Unless such abdication is shown, I intend to dissent from any decision that upholds the severance of a family relationship, especially so long as § 56-207 (a) (2) remains a part of our Adoption Code and is construed in the manner it has been construed by our appellate courts.