Opinion
CLAIM NO. D403764
OPINION FILED NOVEMBER 28, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE ELDON F. COFFMAN AND ROBERT S. BLATT, Attorneys at Law, Fort Smith, Arkansas.
Respondents No. 1 represented by the HONORABLE ROBERT L. HENRY, III, Attorney at Law, Little Rock, Arkansas.
Respondent No. 2 represented by the HONORABLE TERRY PENCE, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on March 21, 1994. In that opinion and order, the administrative law judge found that Shea Hoskins, the claimant, is entitled to dependency benefits. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that she is entitled to dependency benefits.
Leonard Jack Slate died on March 30, 1984, as a result of an injury arising out of and in the course of his employment which occurred on that date. The claimant is the daughter of Karen Slate and John Hoskins. For approximately one and one-half years prior to Mr. Slate's death, Karen Slate and the claimant lived with Mr. Slate. On March 28, 1984, two days before Mr. Slate's tragic death, Karen Slate obtained a divorce from John Hoskins, and, on that same date, she and Mr. Slate were married. Mr. Slate was also survived by two children by a previous marriage and by a child born posthumously to Karen Slate. Respondents No. 1 immediately accepted the claim, and they paid appropriate benefits to Karen Slate and to Mr. Slate's three natural children. However, no claim was made on behalf of the claimant herein until 1993, and she did not receive any workers' compensation benefits as a result of Mr. Slate's death.
Where death results from an injury arising out of and in the course of the employment, a child of the deceased worker may be entitled to compensation. Ark. Code Ann. § 11-9-527 (c) (1987). The statutory definition of "child" includes a step-child of the deceased worker. Ark. Code Ann. § 11-9-102(10) (1987). However, persons claiming compensation for the death of an employee must show by a preponderance of the evidence that they were "wholly and actually dependent" on the deceased employee. Ark. Code Ann. § 11-9-527(c); Roach Manufacturing Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979); Bankston v. Prime West Corporation, 271 Ark. 727, 601 S.W.2d 586 (Ark.App. 1981). A person may be wholly dependent where the existence of an obligation of support sufficient to give a reasonable expectation of support is shown. Cole, supra. However, "actual dependence" requires proof of some measure of actual support or a reasonable expectation of support. See, Doyle's Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W.2d 243 (1980); Robinson v. Ed Williams Construction Co., 38 Ark. App. 90, 828 S.W.2d 860 (1992); Bankston, supra. All questions of dependency are determined as of the time of the injury. Ark. Code Ann. § 11-9-527(h). Dependency is a fact question to be determined in light of surrounding circumstances. Cole, supra; Robinson, supra.
In the present claim, we find that a preponderance of the evidence fails to show that Leonard Slate was obligated to support the claimant or that the claimant had a reasonable expectation of support from Leonard Slate. Although the claimant was Mr. Slate's step-child at the time of his death, the relationship of step-parent and a minor step-child does not, in itself impose any obligation of support on the step-parent. Kempson v. Goss, 69 Ark. 235, 62 S.W. 582 (1901); see also, 59 Am.Jur.2d Parent and Child § 78. Any contribution to the support of the minor step-child by the step-parent is entirely voluntary and can be withdrawn at any time. Kempson, supra; Am.Jur.2d, supra. An obligation to provide support may arise if the step-parent stands in loco parentis to the minor step-child.See, Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W.2d 933 (1968). However, one stands in loco parentis only when he assumes all of the obligations incident to the parental relationship without going through the formalities necessary to adopt the child. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). The fact that the child lived as a part of the individual's household and received support from the individual is not sufficient in itself to establish the relationship of in loco parentis. Id. Instead, the proof must show that the individual had formed the intent to assume the duties and benefits of becoming the child's parent in place of the natural parent, not only in providing support but also in educating, instructing, and caring for the general welfare of the child. Standridge, supra; Miller v. U.S., 123 F.2d 715 (8th Cir. 1942); Dodd v. U.S., 76 F. Supp. 981 (D.Ark. 1948); Am. Jur. supra.
In the present claim, the evidence does not support a conclusion that Leonard Slate formed the intent to assume the duties and responsibilities incident to becoming the claimant's parent. Karen Slate and the claimant testified that Karen Slate did not work outside the home earning wages during the time that they lived with Leonard Slate, except for the first two to three months that they lived together. In addition, they both testified that Mr. Slate provided their only financial support during this period of time. However, the claimant consistently claimed a lack of knowledge regarding the arrangements due to her young age at the time, and Ms. Slate repeatedly asserted a lack of memory due to the length of time that has elapsed. Moreover, as discussed, neither the fact that the claimant lived in Leonard Slate's household nor the fact that he provided financial support would be sufficient to show that he intended to assume the duties and responsibilities of becoming her parent. Furthermore, the decree which was entered by the Court when Karen Slate's divorce from John Hoskins was granted ordered Mr. Hoskins to pay child support, and the evidence indicates that Ms. Slate was prepared to accept child support from Mr. Hoskins. This is clearly inconsistent with the conclusion that Leonard Slate had formed the intent to stand in the place of her natural father, assuming all parental duties and responsibilities.
Furthermore, we find that the preponderance of the evidence fails to establish that Leonard Slate actually provided support to the claimant. Other than the testimony of the claimant and Karen Slate, no evidence was presented showing that Mr. Slate did support the claimant in this manner, and, as discussed, the claimant and her mother repeatedly professed a lack of knowledge or lack of memory regarding pertinent matters. Moreover, other evidence is inconsistent with the conclusion that the claimant was dependent on Mr. Slate for support. Janet Cobb was the adjustor for the respondent carrier who initially handled this claim, and Karen Slate testified that she asked Ms. Cobb about benefits for the claimant. However, Ms. Cobb testified that Ms. Slate never claimed that the claimant was entitled to benefits. Ms. Cobb testified that she was aware that the claimant lived with Ms. Slate and Leonard Slate for some period of time, but she testified that she concluded that the claimant was not a dependant of Leonard Slate based on the Court's order for John Hoskins to pay child support on the date of the injury on March 30, 1984. Moreover, Ms. Cobb testified that Karen Slate told her that "she didn't consider Shea a dependent and that she didn't want to take anything from [the decedent's] children."
The record contains a audio cassette of a recorded telephonic interview given by Karen Slate to Ms. Cobb on May 24, 1984, and the claimant's attorney was with Ms. Slate at the time of this interview. However, due to a mechanical malfunction, only Ms. Cobb's questions and comments are audible on the tape, so the statements of Ms. Slate and her attorney were not recorded. Nevertheless, we note that at one point on the tape, Ms. Cobb stated, "I take it, [the decedent] was not supporting her?" Instead of an audible response, there is a long pause in the tape, and then Ms. Cobb stated, "On the date of the divorce." While Ms. Slate's responses are not audible, Ms. Cobb's statements support her contention that the claimant did advise her that the claimant was not dependent on Mr. Slate at the time of his injury and death.
Significantly, as a result of Leonard Slate's death, a wrongful death law suit was filed in federal court on May 2, 1985. The complaint that was filed in that action named the claimant, along with Leonard Slate's three natural children and Karen Slate, and the complaint sought $200,000 in damages on behalf of the claimant alone. On March 9, 1988, an order approving a compromise settlement and distribution in that action was filed by the Probate Court of Benton County. This compromise agreement expressly provided for distribution of proceeds of the settlement to Karen Slate and the three natural children of Leonard Slate. However, there was no provision for the claimant to receive any of the proceeds of the settlement whatsoever, and the claimant and Karen Slate admit that she did not receive any proceeds, although neither knew of the reason why. A step-child can recover in a claim for wrongful death if it is shown that the step-parent stood in loco parentis by intentionally assuming the obligations of the parental relationship, including the obligation of support. Ark. Code Ann. § 16-62-102 (Cum. Supp. 1993); Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968); Standridge, supra. Consequently, the claimant's omission from the distribution of the proceeds of this settlement raises substantial questions regarding her relationship to Leonard Slate.
Consequently, while the claimant was Leonard Slate's step-child at the time of his death, the evidence does not establish that he stood in loco parentis to her, so the evidence does not establish that he had any obligation to provide support. In addition, the only evidence showing that Mr. Slate provided any actual support to the claimant is found in the testimony of the claimant and her mother, and both are interested parties. Moreover, other evidence is inconsistent with their testimony. Therefore, we find that the claimant failed to prove by a preponderance of the evidence that she was wholly and actually dependent on Leonard Slate at the time of his injury and death.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find the claimant failed to prove by a preponderance of the evidence that she is entitled to compensation for the death of Leonard Slate. Therefore, we find that the administrative law judge's decision must be reversed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.