Henderson v. Callis

David M. Glover, Judge,

dissenting. I respectfully dissent for two reasons. Initially, I question whether this is a final and appealable order because the last paragraph of the order terminating appellant’s parental rights states, “That the issue of the necessity of the consent of the biological mother, Ms. Raquel Mitchell, is reserved by this court.” In Ford Motor Co. v. Harper, 353 Ark. 328, 330, 107 S.W.3d 168, 169 (2003) (citations omitted), our supreme court held:

Whether a judgment, decree, or order is final is a jurisdictional issue that this court has a duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Where no final or otherwise appeal-able order is entered, this court lacks jurisdiction to hear the appeal. In order for a judgment to be final and appealable, it must dismiss parties from court, discharge them from the action or conclude their rights to the subject matter in the controversy.

Arkansas Rule of Appellate Procedure - Civil 2 delineates orders that are considered to be appealable matters. I am unable to place this order into any category under that rule. Clearly this adoption could not be finalized without the determination of whether the consent of the child’s biological mother is necessary. Also, a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure was not attached to the order. Rule 2(c)(3)(C) provides that the termination of parental rights is a final appealable order in juvenile cases where an out-of-home placement has been ordered. This case, however, is a probate case, not a juvenile case; therefore I do not believe that subsection (c)(3)(C) is applicable. Procedurally, I can find no basis for construing this order to be a final appealable order when the trial court “reserves” the question as to whether the biological mother’s consent is necessary.

Contrary to my analysis, the majority finds no problem with the finality of the order and reverses the trial court’s finding that appellant’s consent, although necessary, was being unreasonably withheld. If I reached the merits of this case, which I decline in reliance on Rule 2, I would affirm the decision of the trial court, which found that appellant was unreasonably withholding his consent for adoption and terminated appellant’s parental rights.

The trial court correctly found that appellant’s consent to the adoption was required because, in taking into consideration the resources available to appellant in prison, he had attempted to make contact and establish a bond with his son; had contacted the putative-father registry; and had otherwise attempted to establish paternity. The trial court next turned to the question of whether appellant, as a parent not having custody of the child, was unreasonably withholding his consent contrary to the best interests of the child in violation of Arkansas Code Annotated section 9-9-220(c)(3) (Supp. 2005). On this question, the trial court found that it was in the child’s best interest that appellant’s parental rights be terminated and that appellant was unreasonably withholding his consent. In making this determination, the trial court quoted from In re Adoption of K.M.C., 62 Ark. App. 95, 97, 969 S.W.2d 197, 199 (1998):

In making a decision of whether to terminate the parental rights of a party, the trial court had a duty to look at the entire picture of how that parent discharged his duties as a parent, the substantial risk of serious harm the parent imposed, and whether or not the parent was unfit. Waeltz v. Arkansas Department of Human Services, supra. Any evidence having probative value as to the present or prospective fitness of a parent is admissible to determine whether consent has been unreasonably withheld. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983).

In In re Adoption of K.M.C., this court reversed the trial court’s finding that the teenage biological father did not unreasonably withhold his consent to the adoption contrary to the best interest of the child, holding that in making a determination of whether to terminate a party’s parental rights, the trial court had to look at the entire picture, including past actions prior to the child’s birth, in order to attempt to make an accurate prediction of the future.

Here, the majority assumes that the trial court terminated appellant’s parental rights “based solely on the fact that he is incarcerated.” But this is an incorrect reading of the trial court’s decision. That is not the entire picture. In her letter opinion, the trial judge stated:

The child, Allen, was born on August 30,1999 to Allen Henderson and Racquel Mitchell. The parents were never married nor has paternity been established. Paternity is not disputed in this matter as the petition states Mr. Henderson is the biological father.
Three [sic] days after the birth of the child, the father was incarcerated in the Arkansas Department of Correction. Mr. Henderson was convicted of aggravated robbery and possession of a firearm. He was sentenced to serve 10 years. He will be eligible for parole December 2006. This current incarceration is the second incarceration for the Respondent, now age 26. When Mr. Henderson was age 17, he served a period of 25 months in prison and was 20 years old when he returned.
The Petitioner was appointed the guardian of this child January 2001 and he has remained in the custody of Ms. Callis since that date. It is conceded the Respondent has had no substantial contact with this child and that Ms. Callis has made no effort to determine where the Respondent was located. She was aware both parties were incarcerated, Mr. Henderson in an Arkansas facility and Ms. Mitchell either in Florida or Tennessee.
The Respondent here has been incarcerated for approximately eight and a half (8 54) 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 6 years of age. By the time the Respondent may be released from his present sentence, the child will be almost 8 years. 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.

It is clear that the trial judge looked at the “entire picture” of how appellant has discharged his duties as a parent in determining that he was unreasonably withholding his consent to the adoption. The trial judge did not simply base the termination of appellant’s parental rights upon his current incarceration; rather, she noted that appellant had previously served twenty-five months in prison before this, his second, incarceration. At the time of the entry of the order, appellant had been in prison for eight and a half of his twenty-six years, almost one-third of his entire life and practically all of his adult life. He entered prison at age seventeen for twenty-five months and returned to prison at age twenty, four days after the birth of the child. Another year has now passed with appellant still in prison. He may or may not be granted timely parole from his second prison sentence.

Although it is unclear why appellant went to prison the first time, the second time was for aggravated robbery and possession of a firearm, both serious offenses. Appellant asked the trial court not to judge him on who he was but rather to judge him on the man he now is and the man that he intended to be in the future; however, his track record as an adult does not bode well for his future. It is apparent that the trial court took his past actions prior to the child’s birth into consideration. Appellant’s criminal actions, which have landed him in prison for virtually all of his young adult life, certainly spoke louder than his words to the trial court, and for this reason, I cannot say that the trial court’s decision was clearly erroneous. Appellant probably does want to have a relationship with his son, but his own history does not indicate either that he will have a stellar future or that he will in fact be able to provide for his son. Simply wanting to provide for a child is different from actually providing for a child. As a result of his anti-social and criminal conduct, appellant has never had any meaningful contact with his child for the child’s entire life. Appellee is the only person the child has known as a parental figure. Unfortunately, appellant has never been a part of his child’s life. Now it is unfair to ask a seven-and-a-half year old child, having waited his own entire young life, to continue to wait and languish in an uncertain home situation for a yet to be determined additional amount of time to see if appellant can get his own life together to parent his son. I submit that the best interest the majority is considering in its decision is not the same best interest the trial court considered. The adoption would give the child the stability of remaining in Callis’s home, the only parental figure he has known since he was fifteen months old. Therefore, I cannot say that the trial judge was clearly erroneous in determining that appellant had unreasonably withheld his consent for adoption.

The majority gratuitously asserts that appellee 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.” Frankly, no authority is asserted for this as a legal proposition and as a moral proposition, it is beyond the scope of our appellate review since we are not an ecclesiastical review body. Further, in its opinion, the majority is unduly harsh on Ms. Callis, stating that although she did not contact appellant to encourage the parental relationship, she certainly knew where to find him when she wanted to adopt his son. A fairer comment would be to praise Ms. Callis for stepping into this child’s life in the absence of either of his parents. With neither parent available to parent him, Ms. Callis willingly took on this challenge and provided the child with a stable, and by all accounts, thriving, environment.

The decision of the trial court was not clearly erroneous.