{ "id": 6138702, "name": "Sylvia LUEBKER and David Luebker v. ARKANSAS DEPARTMENT of HUMAN SERVICES", "name_abbreviation": "Luebker v. Arkansas Department of Human Services", "decision_date": "2005-11-16", "docket_number": "CA 05-152", "first_page": "173", "last_page": "177", "citations": [ { "type": "official", "cite": "93 Ark. App. 173" }, { "type": "parallel", "cite": "217 S.W.3d 172" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "82 Ark. App. 133", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138317 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0133-01" ] }, { "cite": "329 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236185 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0163-01" ] }, { "cite": "24 Ark. App. 92", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137779 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/24/0092-01" ] }, { "cite": "40 Ark. App. 25", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136456 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0025-01" ] }, { "cite": "19 Ark. App. 198", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6648372 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark-app/19/0198-01" ] } ], "analysis": { "cardinality": 559, "char_count": 9480, "ocr_confidence": 0.738, "pagerank": { "raw": 1.2826999043432243e-07, "percentile": 0.6180012811557739 }, "sha256": "d807d9f31ec9c2fc419b2628e4c57aa89b33d5fe218a0a4e78e1665b3545f929", "simhash": "1:e32b24471b6d1b7e", "word_count": 1555 }, "last_updated": "2023-07-14T22:52:25.043286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Griffen and Roaf, JJ., agree." ], "parties": [ "Sylvia LUEBKER and David Luebker v. ARKANSAS DEPARTMENT of HUMAN SERVICES" ], "opinions": [ { "text": "Larry D. Vaught, Judge.\nSylvia and David Luebker appeal udge. Circuit Court of Pulaski County denying their petition to adopt three minor children, C.C. (age seven), E.C. (age six), andD.C. (age four). The Luebkers contend that the trial court erred (1) in its determination that the Department of Human Services did not unreasonably withhold its consent to the adoption and (2) in its conclusion that it was not in the best interest of the children that they be adopted by the Luebkers. We affirm.\nSylvia Luebker is the putative biological grandmother of the children whom she sought to adopt. David Luebker is Sylvia\u2019s husband and the \u201cputative step-grandfather\u201d of the children. Two of the three children initially came into foster care following the arrest of their putative father, Scott Cantrell. Thereafter, the third child was brought under the jurisdiction of the trial court. As part of the original plan for parental reunification, the court ordered the parents to establish legal paternity over the children; however, paternity was never established.\nDuring the pendency of the case, the Luebkers intervened and sought custody of the children. On May 8, 2001, prior to the Luebkers\u2019 formal intervention, the court placed the children in the Luebkers\u2019 temporary legal custody on the conditions that they not place the children in the custody of any other person without first obtaining a court order, that they not change their home address without first giving DHS advance notice, and that an expedited home study be completed on the Luebker residence. At that time, the trial court\u2019s goal for the case remained reunification with either of the natural parents.\nOn January 16, 2002, DHS filed an emergency motion for a change of custody after it obtained information \u2014 believed to be credible \u2014 that Mrs. Luebker placed the children with someone else, in direct contravention of the court\u2019s order. As a result of this motion and subsequent hearing, all three children were returned to DHS custody. Following a lack of any significant progress in achieving the goal of reunification \u2014 notably the putative father\u2019s continued incarceration and the fact that during this time the children\u2019s mother was convicted of murdering her newborn child and was sentenced to seventy-seven years\u2019 imprisonment \u2014 the natural parents\u2019 rights were terminated after a hearing on May 27, 2003. At this same time, the court also considered \u2014 and denied \u2014 a motion from the Luebkers to intervene and to transfer custody.\nOn January 30, 2003, the Luebkers filed a petition seeking to adopt the three minor children. A hearing on the matter was held on July 9, 2004. At the hearing, the DHS staff member assigned to the case testified that the agency was unwilling to consent to the adoption and outlined a myriad of concerns with the proposed adoption. These concerns included: (1) a psychological evaluation performed by Dr. Paul Deyoub concluding that Mrs. Luebker was not up to the task of parenting the children; (2) Mrs. Luebker\u2019s age of sixty, which exceeded the agency\u2019s guideline calling for a maximum-age limit of fifty-five; (3) the fact that Mrs. Luebker was totally disabled and had health issues of rheumatoid arthritis, fibromyalgia, and lupus; (4) the fact that after the court had placed the children in the Luebkers\u2019 temporary custody, the agency was required to provide occasional day care and respite care when Mrs. Luebker was too tired to care for the children due to her lupus or other health problems; (5) an indication from Mrs. Luebker that if the children\u2019s mother were paroled, the mother would be allowed to reside in the Luebkers\u2019 home, and the Luebkers might return the children to their mother\u2019s care; (6) the fact that, while in the Luebkers\u2019 custody, the two elder children were entrusted to the care of a third party, Shaina Wright (a \u201crelative\u201d through marriage); (7) the fact that prior to the putative father\u2019s immediate incarceration he was residing in the Luebker home and engaging in improper drug activities while there. Also, the agency representative expressed a generalized concern about Mrs. Luebker\u2019s everyday ability to raise the children until they were eighteen.\nIn response, Mrs. Luebker argued that the children had only been allowed to visit Ms. Wright for a weekend. However, DHS argued that the evidence proved that the Luebkers were attempting a longer and more significant placement action. DHS based its contention, in part, on the fact that Ms. Wright had contacted the agency about the possibility of being a foster parent for the children. Although this matter was a highly debated and disputed topic in three separate hearings, the court did not credit the Luebkers\u2019 testimony on the subject and refused to return the children to their custody.\nThe trial court went on to conclude that although DHS\u2019s concerns appeared well reasoned, appropriate, and in good faith, the overarching question concerned the best interest of the children. As to that end, the trial court found that \u201cthe [Luebkers] have not met their burden of proof that this adoption is clearly and convincingly in the children\u2019s best interest.\u201d First, the trial court noted that although the Luebkers\u2019 advanced age \u2014 standing alone \u2014 was not a great concern, that when it was coupled with the myriad of health problems from which Mrs. Luebker suffers and the young ages of the children it took on a \u201cgreater significance.\u201d Second, the trial court found that \u201cin addition to the reasons stated by [DHS],\u201d it had independent concerns about the Luebkers\u2019 \u201cnegative baggage.\u201d Specifically, the court focused on the fact that two of Sylvia\u2019s adult sons were \u201cin and out of jail\u201d after trouble with drugs, alcohol, sexual assault, and other convictions. The court further mentioned that, although not related to the Luebk-ers, the children\u2019s mother \u201cis now a convicted infant murderer who tries to maintain contact with the Luebkers from prison.\u201d Third, the court expressed concern about the Luebkers\u2019 ability, commitment, and willingness to raise these children until they are adults. Specifically, the court was concerned about the permanency of the placement, noting that it believed \u201cit would be only a matter of time before Mrs. Luebker would find it necessary to make other arrangements for the placement of these children.\u201d Finally, the court credited DHS\u2019s testimony that these three young children were very adoptable and that they could be adopted as a sibling group. In sum, the court determined that, \u201cBased upon the record before the court, the court finds that it would be in the children\u2019s best interest to be adopted as a sibling group by another more appropriate adoptive family.\u201d\nOn appeal, the Luebkers argue that the trial court erred in its best interest determination and in its decision that DHS was reasonable in its decision to withhold consent. A trial court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986) (emphasis added). However, even where the trial court has determined that parental consent to an adoption is not required, the trial court still must find from clear and convincing evidence that the adoption is in the best interest of the child. Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992). The burden rests on the one seeking adoption to prove by clear and convincing evidence that adoption is in the child\u2019s best interest. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988). The ultimate determination of best interest is the primary objective of the trial court in custody matters. Manuel, supra. We defer to the trial court\u2019s personal observations when the welfare of a young child is involved because we know of no other case in which the superior position, ability, and opportunity of the trial court to observe the parties carries as great a weight as one involving minor children. King v. Lybrand (In re Lybrand), 329 Ark. 163, 946 S.W.2d 946 (1997). On appeal, we review the evidence de novo, but we will not reverse a trial court\u2019s findings unless it is shown that they are clearly contrary to the preponderance of the evidence. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003).\nIn this case, we have limited our review to the independent findings of the trial court, discounting any findings based on the court\u2019s conclusion that it should give \u201csome deference to [DHS\u2019s] refusal to consent to the adoption.\u201d The remaining factual determinations and findings made by the court are more than ample to support an independent conclusion relating to the children\u2019s best interest. Because the trial court\u2019s independent findings were not contrary to a preponderance of the evidence and the court\u2019s conclusion that the adoption is not in the children\u2019s best interest is supported by clear and convincing evidence, we affirm the trial court\u2019s denial of the adoption petition. Further, because we have affirmed the trial court\u2019s best interest finding, the issue of whether DHS improperly withheld its consent need not be addressed.\nAffirmed.\nGriffen and Roaf, JJ., agree.", "type": "majority", "author": "Larry D. Vaught, Judge." } ], "attorneys": [ "Stephen W. Tedder, for appellant.", "Gray Allen Turner, for appellee." ], "corrections": "", "head_matter": "Sylvia LUEBKER and David Luebker v. ARKANSAS DEPARTMENT of HUMAN SERVICES\nCA 05-152\n217 S.W.3d 172\nCourt of Appeals of Arkansas\nOpinion delivered November 16, 2005\nStephen W. Tedder, for appellant.\nGray Allen Turner, for appellee." }, "file_name": "0173-01", "first_page_order": 199, "last_page_order": 203 }