Pippinger v. Benson

2011 Ark. 535, 385 S.W.3d 266, 2011 Ark. LEXIS 604
Supreme Court of Arkansas·Decided December 15, 2011·No. No. 11-675·Published·Cited by 17 cases

Opinion

PAUL E. DANIELSON, Justice.

| |Andrea Pippinger appeals from the circuit court’s order denying her petition to adopt J.P., her stepson, and appellant Derek Pippinger appeals from the circuit court’s order granting visitation with his son, J.P., to appellees Doris Benson and Bertie May Blasingame, J.P.’s maternal grandmother and great-grandmother. The Pippingers originally appealed the circuit court’s order to the court of appeals, and that court affirmed. See Pippinger v. Benson, 2011 Ark. App. 442, 384 S.W.3d 614. They petitioned this court for review, which we granted. Upon granting a petition for review, this court considers the appeal as if it had been originally filed in this court. See Duncan v. Duncan, 2011 Ark. 348, 383 S.W.3d 833. There are three points on appeal: (1) that the circuit court erred in allowing Doris and Bertie to intervene in the adoption proceeding; (2) that the circuit court erred in granting Doris and Bertie grandparent and great-grandparent visitation; and (3) that the circuit court erred in denying |2the petition for adoption. We reverse and remand the circuit court’s award of grandparent and great-grandparent visitation, and we affirm the circuit court’s denial of the petition for adoption.

The basic underlying facts are these. On July 21, 2009, Andrea filed a petition to adopt her stepson, J.P. The petition stated that J.P. was born December 28, 2006, and that his biological mother, Angela, died January 20, 2008. The same day the petition for adoption was filed, Derek, J.P.’s father, filed a consent to the adoption and waiver of appearance. In accordance with Arkansas Code Annotated § 9 — 9—212(f) (Supp.2007), a notice of the pending petition and its hearing date was issued to Doris and Gerald Benson, J.P.’s maternal grandmother and grandfather.

On September 24, 2009, the petition was called for a hearing. At the hearing, the circuit court observed that, while an affidavit of service reflected service on Doris and Gerald, no pleading had been filed by them challenging the adoption, or requesting relief; however, Bertie, J.P.’s great-grandmother, was present at the hearing. The circuit court agreed to then reset the matter for a special setting, rather than hearing the matter in the one hour previously allotted. It further advised Bertie that if “they” desired any action be taken on their behalf, they needed to be represented by an attorney and to file the proper pleadings.

On October 5, 2009, Doris and Bertie filed a petition for temporary and permanent grandparent and great-grandparent visitation in the domestic-relations division of the circuit court.1 In their petition for visitation, Doris and Bertie noted the stepparent-adoption matter | ¡¡that was pending and asked that the actions be consolidated or heard simultaneously. On October 6, 2009, Doris and Bertie filed an answer to the petition for adoption, motion to intervene, and third-party petition for grandparent and great-grandparent visitation. In response, Andrea filed a motion to strike Doris and Bertie’s responsive pleading in the adoption proceeding on the basis that they lacked standing. After the circuit court consolidated both matters for the purpose of hearing evidence, a hearing was held at which the circuit court heard testimony and the arguments of counsel. The visitation petition was taken up first.

During the hearing, Bertie testified that after J.P. was born and Angela was discharged from the hospital, they went to her house and stayed there approximately six weeks while Angela recuperated from a Caesarean section. Bertie stated that after J.P. had surgery at Arkansas Children’s Hospital, J.P. returned to his parents’ home with them, where she stayed the night and she, Doris, and Gerald took turns helping with J.P. About three weeks after his surgery, J.P. was taken to Bertie’s home, where he spent many nights, along with Angela and Derek. Bertie testified that Angela and Derek would often take J.P. for a few days at a time from her home and that the most he was away from her at one time was three to four days. During this time, Bertie testified, she and Doris were taking care of J.P., with Derek stopping by at night to cheek on him, unless it was too late; Angela was there every day and would spend the night. It was Bertie’s testimony that during the first year of J.P.’s life, she had contact with him about ninety percent of the time.

Bertie stated that after Angela died on January 20, 2008, Derek took J.P. to stay at his 1 ¿mother’s home. Bertie testified that after Angela’s funeral, Derek would bring J.P. to Bertie and allow him to spend the weekend with her and Doris; they did so at Angela and Derek’s mobile home into which she had temporarily moved at Derek’s request. This arrangement was in place until August 2008, when, according to Bertie, Derek said he “needed some weekends.” After that, she stated, they usually were allowed to keep J.P. every other weekend. It was at this time that Bertie moved out of the mobile home and back to her home. Bertie testified that their every-other-weekend visits with J.P. ceased on October 31, 2008. She testified that Derek later allowed J.P. to attend church with her, and that in February 2010, he allowed J.P. to stay approximately three hours with her, Doris, and Gerald at her home, as her counsel described, “unsupervised.”

Bertie testified that they have been allowed to visit with J.P., typically, at Derek and Andrea’s home “about every week on Tuesday nights usually for a while.” She stated that, while she had asked to take J.P. to her home or out to eat, Derek refused. She admitted, however, that they had been invited to birthday parties and other events involving J.P.

With respect to the adoption petition, Bertie testified that she did not think the adoption was in her great-grandson’s best interest and that it was “too soon.” She testified that she believed it was in J.P.’s best interest to have “unsupervised” visitation with her and that she would abide by Derek’s “rules.” She also stated her belief that if she was not awarded great-grandparent visitation, she did not think that she would have any future contact with J.P. However, Bertie admitted that neither Derek nor Andrea had told her that she could not see J.P. in the future, nor had they kept her from seeing J.P.; she stated that her visits had only Rbeen limited to every week at Derek and Andrea’s home.

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Pippinger v. Benson, 2011 Ark. 535, 385 S.W.3d 266, 2011 Ark. LEXIS 604 (Ark. 2011).

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