Ducharme v. Gregory

2014 Ark. App. 268, 435 S.W.3d 14, 2014 WL 1711012, 2014 Ark. App. LEXIS 324
Court of Appeals of Arkansas·Decided April 30, 2014·No. No. CV-13-827·Published·Cited by 9 cases

Opinion

LARRY D. VAUGHT, Judge.

[ | Rhonda Ducharme appeals the grant of Jo Lynn and Larry Gregory’s petition to adopt HD, Rhonda’s biological daughter. She argues on appeal that the trial court erred in finding that her consent to adoption was not required under Ark.Code Ann. § 9-9-220 (Repl.2009). Specifically, Rhonda argues that the circuit court erred in finding that she had failed — significantly without justifiable cause — to support HD for at least one year and that HD had been subjected to ongoing abuse and neglect that was irremediable. While we find merit in portions of Rhonda’s appeal, we ultimately affirm the court’s decision to grant the Gregorys’ petition to adopt HD.

There was evidence introduced at the adoption hearing to support the following statements of fact. On October 25, 1999, HD was born to Rhonda, who at the time was unmarried and single. The natural father of HD is believed to be Julio Garcia, a Cuban national living in either Clearwater or Tampa, Florida, address unknown. However, because he was | ^neither listed on HD’s birth certificate nor married to Rhonda at the time of conception and has made no attempt to legitimize the child, the consent of HD’s presumptive natural father is not required for the adoption. Additionally, there have been no filings with the putative-fathers registry relating to the paternity of HD.

The Gregorys are not related to HD but were introduced into her life while Jo Lynn was serving as Rhonda’s Alcoholics Anonymous (AA) sponsor. On September 9, 2005, Rhonda executed and delivered a document consenting to Jo Lynn’s right to care for HD. The document specifically conveyed physical custody, authority for medical care, and discretion to direct the education of HD to the Gregorys. Over the years, the Gregorys would care for the child during periods where Rhonda was either hospitalized, incarcerated, or in treatment for issues resulting from her addiction to alcohol. On August 24, 2011, the Gregorys filed a petition to adopt HD, who also filed a consent document with the court stating that, likewise, she desired to be adopted by the Gregorys and have her name changed to Gregory.

The first hearing relating to the adoption of HD was held on April 5, 2013, where the court considered Rhonda’s request for visitation with her daughter. Laurie Joyner, Rhonda’s counselor, testified that Rhonda was getting help for her alcoholism and was working on improving her parenting skills. Although Joyner could not speak to Rhonda’s past, she testified that Rhonda had a proactive plan for the future and was getting the help needed to recover from her alcohol addiction and the resulting harm that it had caused HD.

At the hearing, HD testified that the last night she had spent with her mother was June 19, 2011, and that on that day Rhonda “had been drinking sherry cooking wine all day.” HD |awent on to state that she woke up that morning at 6:00 or 7:00 and fixed her (already intoxicated) mother breakfast. However, Rhonda remained on the floor and did not join HD for breakfast; she fixed her mother a “noonday” meal and fed it to her. According to HD, that evening, she fell asleep on the couch and around 9:00 p.m., Rhonda confronted her:

She was telling me to pick up my stuff. There wasn’t anything to pick up. She just kept yelling at me. She went into my room, took my clothes out of my closet, and threw them on the floor. She was saying, “Pick up your stuff.” I went back in and picked up everything and put it in the closet. My mom was in the room when I did that. My mom laid her hands on me. She dragged me down the hall by my hair. She was taking me around [eighteen] feet to the back bedroom. She made it back to the bedroom ... and tried to pin me to the wall. She had my hair when she drug me to the other bedroom, and then she took my hand and had my back against the wall. She fell. I got loose....

According to HD, at her mother’s request, the following morning, Jo Lynn came to pick her up. HD was present when her mom told Jo Lynn that HD was not cooperative and that Rhonda didn’t know how long she could restrain herself from putting HD’s head through a wall. HD also testified that Rhonda had physically abused her on at least eight other occasions and that the abuse had escalated from yelling to physical abuse.

HD testified that since she began living with the Gregorys she had spoken with her mom on the phone occasionally, but she did not want scheduled visitation with her mother because she feared for her life; but, she would consider a future relationship (as an adult) with Rhonda, if her mother remained consistently sober.

The court found that Rhonda had been an alcoholic since at least 2003 and denied the visitation request, with the caveat that the Gregorys provide HD with individual counseling and submit to criminal background checks and a home study. The court set the adoption for trial on July 19, 2013.

l4The court began the trial by finding that the Gregorys had raised the rebutta-ble presumption of neglect and abuse of HD in July 2012 and that Rhonda had failed to rebut that presumption. The court found that there had been permanent damage to the mother-daughter relationship and the cause of the harm was irremediable. This finding was based on testimony of witnesses who testified in several hearings during the pendency of the case.

First, the court relied on the testimony of Dena Fraker, who met Rhonda through AA activities in 2003 and 2004. She witnessed Rhonda drunk on several occasions during this time and observed the active role that the Gregorys played in caring for HD when Rhonda was unable to do so.

Michelle Bathon also testified that she had lived next door to Rhonda and HD for about six years between 2004 and 2009 and that she took care of HD when Rhonda was too sick from drinking “cooking sherry and other alcoholic drinks.” She also testified that she transported Rhonda to the emergency room “twenty times or more” when she was ill from alcohol. Bathon further testified that she “then started calling an ambulance to come and get [Rhonda] because she feared she was making it too easy for [Rhonda] to be drunk.” According to Bathon, she assisted in caring for HD when her mother would leave the child unattended for several days at a time and that Rhonda did not arrange care for HD and “just left her alone without care.” Finally, Bathon testified that occasionally Rhonda would have “scary” male visitors in the apartment and that Bathon was “afraid for HD.”

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Ducharme v. Gregory, 2014 Ark. App. 268, 435 S.W.3d 14, 2014 WL 1711012, 2014 Ark. App. LEXIS 324 (Ark. Ct. App. 2014).

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