A. B. v. Arkansas Social Services

George Rose Smith, Justice. This guardianship case has to do with Anne, a child born in Arkansas in 1978. She was later placed in the custody of Arkansas Social Services. In June, 1979, the juvenile court of Pulaski county granted Social Service’s petition for authority to file a proceeding in the probate court for the appointment of a guardian for the child with power to consent to her adoption without notice to the child’s natural parents. Ark. Stat. Ann. § 56-126 (Supp. 1979). The present proceeding was accordingly filed in probate court in March, 1980. About a month earlier the child’s mother had decided to give up the child for adoption and had signed a formal entry of appearance and consent to adoption without notice. The appellant, A. B., is conceded by Social Services to be the child’s father, although at the child’s birth her mother was married to another man, with whom she had not lived for some years. A. B. was made a party to this proceeding and has contested it from the beginning. The matter was referred to a special master, who conducted a hearing and made findings that were adopted by the probate court. The court’s order granted the petition, appointed Ivan H. Smith as guardian with power to consent to adoption, and found that A. B. is not a fit and proper person to have the child, for three reasons: (1) This father’s actions have caused his incarceration and his failure to meet his parental responsibilities for a period of more than a year; (2) Placing the child in the father’s custody would raise a substantial risk of serious harm to the child due to the mental and emotional illnesses of the father which have resulted in repeated incarcerations and failures at rehabilitating his own life; and (3) The father’s past behavior indicated an irremediable inability to provide for the basic, essential and necessary physical, mental and emotional needs of the child. The appellant argues that the proof does not support the court’s findings. In a case such as this one, in which a natural parent’s consent to adoption is to be dispensed with, the basis for the court’s action must be proved by clear and convincing evidence. Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979). The court’s first finding is essentially one of abandonment under § 56-128 (D) (1) (Supp. 1980), which requires a finding that the parent has abandoned the child, by conduct evidencing “a settled intent to forego parental rights and responsibilities.” There is a rebuttable presumption of abandonment if the parent has without just cause, for a period of one year immediately preceding the filing of the petition, failed to assume responsibility for the care and custody of the child or to participate in a plan to assume such responsibility. Id. We find the proof insufficient to support the first finding. A. B. entered the Department of Corrections two weeks before his child’s birth, to begin serving a five-year sentence. Over a period of nearly two years, beginning when Anne was four months old, two Social Services case workers took the child for a total of nineteen two-hour visits with her father. The case workers’ testimony rebuts the notion that A. B. had a settled intent to abandon his child. He was gentle with the child and expressed his love and concern for her. In fact, the special master said at the close of the hearing that the father obviously loved the child very much. Mere incarceration is not conclusive on the issue of abandonment. Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W. 2d 765 (1976). Inasmuch as A. B. was released on parole a month after the present petition was filed, there was a marked failure by the petitioner to show abandonment for more than a year immediately preceding the filing of the petition. The second and third findings are both under § 56-128 (F), but that subsection specifically states that before a ground of unfitness may be established under its provisions the court must be satisfied that the parents have received from Social Services for a period of up to six months “remedial support services” and that such services have failed to substreduce the risk of harm to the child. No such program has been attempted or even shown to be needed. Apart from that fatal defect, there is no proof that this father’s custody would present a risk of substantial harm to his daughter. At the time of the hearing he had been incarcerated for about 20 of his 41 years of life, originally as a teen-ager. He served all of a ten-year sentence for manslaughter in California; other comparatively short sentences made up the rest of the total. There is no showing of present mental or emotional illness. No witness testified to that effect. A. B. spent some time in mental institutions in California many years ago, but there is no indication of the nature of his illness or of its continued existence. The proof intended to support the second and third findings does not meet the minimum requirements of the statute. In stressing the deficiencies in the petitioner’s proof we do not in any way imply that A. B. is entitled to Anne’s custody. That issue is not even presented by this case. We must, however, reverse the trial court’s decision; in doing so we suggest that the case may appropriately be referred again to the juvenile court, to the end that it and Social Services may resume their efforts to preserve this family relationship. Reversed. Hays, J., not participating. Hickman, J., dissents.