{ "id": 8718742, "name": "A. B. v. ARKANSAS SOCIAL SERVICES et al", "name_abbreviation": "A. B. v. Arkansas Social Services", "decision_date": "1981-07-06", "docket_number": "81-35", "first_page": "261", "last_page": "268", "citations": [ { "type": "official", "cite": "273 Ark. 261" }, { "type": "parallel", "cite": "620 S.W.2d 271" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "260 Ark. 629", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616681 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0629-01" ] }, { "cite": "265 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664752 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0558-01" ] }, { "cite": "272 Ark. 392", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174890 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/272/0392-01" ] }, { "cite": "273 Ark. 203", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718248 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/273/0203-01" ] }, { "cite": "266 Ark. 18", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717291 ], "weight": 2, "year": 1979, "opinion_index": 1, "case_paths": [ "/ark/266/0018-01" ] } ], "analysis": { "cardinality": 569, "char_count": 9690, "ocr_confidence": 0.819, "pagerank": { "raw": 2.536759539316187e-07, "percentile": 0.8129910276622305 }, "sha256": "ee1c6ce8155b9ae3457b81fa89d41469b8233e37f132bf55060730818125d525", "simhash": "1:11658565bf21f5c0", "word_count": 1679 }, "last_updated": "2023-07-14T18:17:45.388199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hays, J., not participating.", "Hickman, J., dissents." ], "parties": [ "A. B. v. ARKANSAS SOCIAL SERVICES et al" ], "opinions": [ { "text": "George Rose Smith, Justice.\nThis 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\u2019s 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\u2019s natural parents. Ark. Stat. Ann. \u00a7 56-126 (Supp. 1979).\nThe present proceeding was accordingly filed in probate court in March, 1980. About a month earlier the child\u2019s 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\u2019s father, although at the child\u2019s 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.\nThe matter was referred to a special master, who conducted a hearing and made findings that were adopted by the probate court. The court\u2019s 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:\n(1) This father\u2019s actions have caused his incarceration and his failure to meet his parental responsibilities for a period of more than a year;\n(2) Placing the child in the father\u2019s 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\n(3) The father\u2019s past behavior indicated an irremediable inability to provide for the basic, essential and necessary physical, mental and emotional needs of the child.\nThe appellant argues that the proof does not support the court\u2019s findings. In a case such as this one, in which a natural parent\u2019s consent to adoption is to be dispensed with, the basis for the court\u2019s action must be proved by clear and convincing evidence. Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979).\nThe court\u2019s first finding is essentially one of abandonment under \u00a7 56-128 (D) (1) (Supp. 1980), which requires a finding that the parent has abandoned the child, by conduct evidencing \u201ca settled intent to forego parental rights and responsibilities.\u201d 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.\nWe find the proof insufficient to support the first finding. A. B. entered the Department of Corrections two weeks before his child\u2019s 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\u2019 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.\nThe second and third findings are both under \u00a7 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 \u201cremedial support services\u201d 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\u2019s 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.\nIn stressing the deficiencies in the petitioner\u2019s proof we do not in any way imply that A. B. is entitled to Anne\u2019s custody. That issue is not even presented by this case. We must, however, reverse the trial court\u2019s 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.\nReversed.\nHays, J., not participating.\nHickman, J., dissents.", "type": "majority", "author": "George Rose Smith, Justice." }, { "text": "Darrell Hickman, Justice,\ndissenting. In two cases interpreting the new adoption law we have taken the view that the law should be liberally interpreted so that the legal father cannot unreasonably block the adoption of his child.\nIn Pender v. McKee, 266 Ark. 18, 582 S.W. 2d 929 (1979), we held that the legal father who had not contributed any money to the support of his child for \u201cat least ten months\u201d forfeited his right to object to the adoption of his child. In Henson v. Money, 273 Ark. 203, 617 S.W. 2d 367 (1981), decided only weeks ago, we held the legal father forfeited his rights when he did not pay support payments for fifty-one weeks. In both cases the fathers were the legal biological fathers of the children, who had in the past supported their children.\nIn this case the father has never sought any legal rights to the child which is his out of wedlock. In Roque v. Frederick, 272 Ark. 392, 614 S.W. 2d 667 (1981), we held a putative father had the right to a hearing regarding his rights. We did not hold a putative father necessarily had any legal rights to the child. That depends on the circumstances of the case.\nThe father in this case has spent a good part of his life in mental and penal institutions. He admitted to being incarcerated for about twenty of his forty-one years. He was in the Arkansas penitentiary when the child was born.\nWhy Arkansas Social Services took the child to the penitentiary for regular visits I do not know. Perhaps this was done at the order of the Juvenile Court or perhaps in the belief that this man and the mother might get married.\nThe testimony was that after he was released he did not seek to visit the child. He said he called the social worker a few times but she was not in. But the social worker in charge of the case said he never contacted her regarding the child. He has not ever paid a dime\u2019s support for this child. He admits to being in the custody of the California Youth Authority when he was thirteen or fourteen. He admitted he pleaded guilty to manslaughter in California and was sentenced to serve from six months to ten years. He served every day of the ten year sentence. He admitted he stole an automobile in San Francisco for which he received probation. He was in jail numerous times. His \u201crap sheet\u201d reads as follows:\nGreenfield admitted most of the convictions but claimed there was another man named David Allen Greenfield in California that must have committed some of these acts.\nThe evidence reflects that since he was released from the Arkansas penitentiary he has moved about and changed jobs. There was evidence he had not been completely honest about his employment since he was paroled.\nI find that all this evidence supports the probate judge\u2019s two findings:\n(2) Placing the child in the father\u2019s 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\n(3) The father\u2019s past behavior indicated an irremediable inability to provide for the basic essential and necessary physical, mental and emotional needs of the child.\nI would agree that incarceration alone is not grounds to find abandonment. But the test on review is not whether we are convinced that there is clear and convincing evidence of the probate judge\u2019s findings, but whether we can say that the probate judge was clearly wrong in his findings. Rules of Civil Procedure, Rule 52.\nThis father may need this child but this child does not need this father. Social Services owes no duty to put this father and child together. They worked on this case providing support financially and otherwise to both the father and mother for over a year. This child does not need its life and well being delayed any longer. There was sufficient evidence to support the probate judge\u2019s findings and I would affirm the decree.", "type": "dissent", "author": "Darrell Hickman, Justice," } ], "attorneys": [ "Daniel J. Runde, for appellant.", "Judith P. Balentine, for appellee.", "Theodore C. Skokos, for Dorothy Anne Greenfield, minor." ], "corrections": "", "head_matter": "A. B. v. ARKANSAS SOCIAL SERVICES et al\n81-35\n620 S.W. 2d 271\nSupreme Court of Arkansas\nOpinion delivered July 6, 1981\n[Rehearing denied September 21, 1981.]\nDaniel J. Runde, for appellant.\nJudith P. Balentine, for appellee.\nTheodore C. Skokos, for Dorothy Anne Greenfield, minor." }, "file_name": "0261-01", "first_page_order": 281, "last_page_order": 288 }