dissenting. I do not agree that the trial judge’s decision in this case should be reversed. The rules by which we review the trial judge’s decision were clearly set out in our case of Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983) as follows:
Ark. Stat. Ann. § 56-207 has been the subject of a number of recent opinions of the appellate courts of this state from which the principles governing the issues of this appeal have been established. Statutory provisions involving the adoption of minors are strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980). The party seeking to adopt a child without the consent of a natural parent bears the heavy burden of proving by clear and convincing evidence that the parents have failed significantly and without justifiable cause to communicate with the child or to provide for its care and support for the prescribed period. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979).
“Clear and convincing evidence” has been defined as evidence of a credible witness whose memory of the facts about which he testified is distinct and whose narration of the details is so clear, direct, weighty, and convincing as to enable the finder of fact to come to a clear conviction, without hesitancy, of the truth of the facts related. This measure of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt. It is simply that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established. Kelly v. Kelly, 264 Ark. 865, 575 S.W.2d 672 (1979). “Failed significantly” does not mean “failed totally” but the failure must be a significant one as contrasted with an insignificant one. It denotes a failure that is meaningful or important. “Justifiable cause” means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Hensonv. Money, 1 Ark. App. 97,613 S.W.2d 123 (1981) [affirmed on appeal 273 Ark. 203,617 S.W.2d 367 (1981)]; Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).
While we review probate proceedings de novo on the record, it is well settled that the decision of a probate judge will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to judge the credibility of witnesses. ARCP Rule 52(a); Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983); Henson v. Money, supra. Personal observations of the judge are entitled to even more weight in cases involving the welfare of a small child. Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500 (1958).
The record contains evidence showing that the appellant, Debra Bemis, was first married to the appellee, Freddie Hare. They are the parents of a son born on March 17, 1974. At that time, Debra was 17 years old and Freddie was 18. They were divorced on June 1, 1976, and Debra was married to the appellant, Ralph Bemis, on June 16, 1976. Both Freddie and Ralph were in the Air Force and stationed in Pulaski County at the time of both events. Freddie testified that he paid child support until late in 1983, but admits he stopped his allotment for that purpose at that time. At the hearing in February of 1986, he admitted he had not made any support payments nor seen his son for more than two years. In response to questions by the court, he testified as follows:
I stopped my allotment payments because it was getting harder and harder to get David. Everytime I would go over there she’d have him ready. She would have his suitcase but he wouldn’t be ready to go. One time I had to pick him up just kicking and screaming and put him in the truck and take him with us. A lot of times he would run in the house and I wouldn’t get him out. I wouldn’t want to go in there after him. It would just seem like it wasn’t going anywhere. She had made this offer several times to me. The same offer that is on that paper.
THE COURT: What paper?
A. On the — the letter there that Mr. Craig sent me.
THE COURT: Well, tell me what the offer was.
A. She said if I quit seeing my son that I wouldn’t have to pay child support.
THE COURT: When did that start?
A. Several years ago. Almost from the first.
THE COURT: What was yours and her relationship on these times when you were attempting to exchange the child?
A. Mine and hers?
THE COURT: Yeah.
A. They were peaceful enough, I guess. I didn’t have — it wasn’t her that gave me the trouble. Not directly. We talked, and everything was fine until I got ready to leave and take David. And that’s when all the trouble would start. She didn’t every — you know — physically try to stop me, but she never — you know — mentally try to get him ready to go either.
Appellants’ abstract, pages 24-25.
In addition to the above evidence, there was evidence from Freddie’s mother that she was not allowed to see her grandson. She even obtained a court order allowing visitation rights but said she was not able to successfully exercise that right because there was usually a scene. When she went to the house to get him, Debra would say, “He is in there” and David would say, “I am not going.” She stopped trying to visit him in 1983.
The court heard all the evidence, talked to the boy, then 12 years old, in chambers, and then stated in open court:
I am going to take this case under advisement. I am going to make this one statement, basically, in Court today. I have never seen a child that I thought was more coaxed and prepped on what to say. It is very upsetting, in my opinion, to see what has occurred with that child and how he has been turned against his father. And that’s all I’m going to say right now.
In his order, the judge made the following pertinent findings:
(5) The respondent, Freddie Max Hare, has not visited with the child nor paid support for over one year, however, the Court believes in this case the action was justified within the meaning of A.S.A. 56-207.
(6) From the Court’s view of the witnesses, it is believed that Debra S. Bemis did everything possible to avoid collecting support from the natural father, Mr. Hare, in order to effect an adoption. That Mr. Hare was led to believe that he should not pay support since he was unable to have visitation with the child, without greatly upsetting him. The Court accepts Mr. Hare’s testimony in this regard.
(7) That the Court’s examination of the twelve year old child, David Paul Hare, was most important. The Court believes that Debra Bemis has done everything possible, (although she may not recognize this) to turn the child from his father. That the child was taught to hate his father, although he was unable to explain that dislike. Although not within this Court’s jurisdiction, the Court is certain that because of the child’s unjustified attitude towards the father, visitation will be almost impossible for a number of years. This will be particularly so, if the mother continues to control the child’s thought relating to his father.
(8) The Court accepts the testimony of the father that it was impossible to visit the child without greatly upsetting him.
(9)That the petition for adoption should be and is hereby denied.
Considering that, under Taylor v. Hill, supra, one seeking to adopt a child without the consent of a natural parent bears “the heavy burden of proving by clear and convincing evidence” that the natural parent has failed significantly and without justifiable cause to communicate with the child or to provide for its care and support for the prescribed period; that in order for the failure to support or communicate to be significant, it must appear that the parent acted arbitrarily “and without just cause or adequate excuse”; and that we are not to disturb the decision of the trial judge unless it is clearly erroneous, giving due regard to his superior position to judge the credibility of the witnesses, it is clear to me that we should affirm the trial judge’s decision in this case.
The majority opinion lays great stress upon the fact that the appellee has not paid the child support ordered by the court. However, as the statute provides, the right to adopt without consent of a natural parent is allowed only where the failure is without justifiable cause- — or as the case law provides, without “just cause or adequate excuse.” Here, the appellee’s excuse, accepted by the court, was the problem of visitation. While both appellee and his mother concede that the boy’s mother did not refuse visitation rights, there is clear evidence by the boy’s father and grandmother that the boy’s mother made no attempt to have the boy mentally ready for their visitation. Thus, the father stopped making the support payments.
An exhibit, abstracted by appellants, shows that the failure to allow visitation was raised on eight different occasions by motions filed in the trial court. The judge specifically noted that the mother had made no real effort to collect the support payments. She even testified that it was not worth staying in court to try to enforce support payments and that “you should not have to make a father support his child.” The real reason for this attitude, I submit, is that the stepfather, who was in the same military unit with the boy’s father and who married the boy’s mother 15 days after the father and mother were divorced, is able, as he testified, to support the boy and, therefore, they have been content to forget the father’s support if he would stop visiting the boy. In fact, there is evidence to the effect that such an agreement was made between the parties. None of this forgives the debt that is owed for past support, but it does, in my view, support the trial court’s decision to deny the petition for adoption.
I am authorized to state that Judge Cooper joins in this dissent.