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Martini v. Price

Supreme Court of Arkansas

December 22, 2016

ANTONIO MARTINI, APPELLANT
v.
CHRISTOPHER PRICE, APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [23PR-2013-441] HONORABLE H.G. FOSTER, JUDGE

         AFFIRMED IN PART; REVERSED AND DISMISSED IN PART; COURT OF APPEALS OPINION VACATED.

          Tripcony, May & Assoc., by: James L. Tripcony, for appellant.

          Kamps & Stotts, PLLC, by: Adrienne M. Griffis, for appellee.

          ROBIN F. WYNNE, Associate Justice

         Antonio Martini appeals from a final decree of adoption granting an adoption petition filed by his ex-wife's current spouse, Christopher Price, in which Price sought to adopt Martini's daughter and former stepson without Martini's consent. The Faulkner County Circuit Court found that appellant's consent to the adoptions was not necessary because he had failed for a period of at least one year without justifiable cause to communicate with the children. Appellant argues that the circuit court erred by finding that his consent was not necessary and by finding that it was in his former stepson's best interest to be adopted by his ex-wife's current spouse. We accepted this case on a petition for review of a decision by our court of appeals, wherein the court of appeals affirmed the decree by a vote of 5-4. Thus, our jurisdiction lies pursuant to Rule 1-2(e) of the Rules of the Arkansas Supreme Court and Court of Appeals. We affirm as to appellant's former stepson and reverse and dismiss as to appellant's daughter.

         Appellant's former stepson, G.L. was born to Renita Lemmonds (now Price), in 2004. No father is listed on the birth certificate. Appellant entered the lives of G.L. and Mrs. Price when G.L. was eleven months old. Appellant and Mrs. Price married in 2006 and had a daughter, E.M., in 2007. In December 2009, while the family was living in Washington State, appellant was arrested following an incident of domestic violence against Mrs. Price. Mrs. Price immediately left Washington with the children, came to Arkansas where her mother lived and where the couple had lived previously, and obtained an order of protection barring appellant from having either direct or indirect contact with her for one year. Appellant pled guilty to domestic-violence-related charges in March 2010, for which he received a two-year suspended sentence and was ordered to enter a domestic-violence treatment program. A second order of protection was entered that barred appellant from contact with Mrs. Price until March 25, 2012. Neither of the orders of protection barred appellant from contact with the children.

         In 2012, Mrs. Price filed a complaint for divorce against appellant. A decree of divorce was entered on October 26, 2012. The decree grants custody of E.M. to Mrs. Price, with appellant being awarded reasonable privileges of visitation. The decree also states that appellant had acted in loco parentis to G.L. and that appellant would have reasonable visitation with him as well. Pursuant to the decree, visitation was to be "graduated initially" and supervised by the children's therapist. After six months, the parties were to review their progress and determine a more permanent visitation schedule according to the recommendation of the therapist. Appellant had two supervised visits with the children in 2012 consisting of one in November and another in December. He attended three family-therapy sessions with Mrs. Price and the children in 2013 on January 16, February 5, and March 26. After the March 2013 visit, the therapist stated in a report that she did not believe that additional family sessions would be in the children's best interest due to appellant's behavior during the sessions.

         Mrs. Price married appellee in July 2013. On November 6, 2013, appellee filed an amended petition for adoption of G.L. and E.M.[1] The petition alleges that appellant's consent to the adoptions is not required because appellant failed for a period of at least one year without justifiable cause to communicate with the children. Appellant objected to the adoptions, asserting that there existed justifiable cause for any lack of communication with the children.

         At the hearing on the adoption petition, there was testimony that Mrs. Price created an email account for the children and provided the email address to appellant. Appellant emailed the children three times in the fall of 2010: twice in response to emails from the children and once to wish E.M. a happy birthday. Appellant testified that he ceased emailing the children after Mrs. Price apparently had a heated exchange with members of the probation office supervising appellant, which led to concern by appellant that she was using the email account to attempt to set him up. Appellant was never notified that Mrs. Price had taken the children to Arkansas, nor was he made aware of where Mrs. Price and the children were living. Mrs. Price also provided appellant with a phone number for his domestic-violence counselor to call regarding visitation with the children and to which no call was made. Mrs. Price also sent him correspondence through the mail in 2010 that had the address of the Arkansas Department of Human Services office where she worked listed as the return address. However, appellant testified that he thought the office acted as a go-between and had no way of knowing that Mrs. Price worked there. Appellant looked into setting up visitation with the children over Skype but was informed by both an attorney and his probation officer that this posed a risk of violating the no-contact order. Following the hearing, the circuit court entered a decree in which it found that appellant's consent to the adoptions was not necessary and granted the amended petition. This appeal followed.

         We review probate proceedings de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001). A finding is clearly erroneous when, despite evidence to support it, we are left on the evidence with the firm conviction that a mistake has been committed. Morningstar v. Bush, 2011 Ark. 350, 383 S.W.3d 840. When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id.

         Appellant first argues that the circuit court erred in finding that his consent to the adoptions was not required. Consent to adoption is not required of a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree. Ark. Code Ann. § 9-9-207 (Repl. 2009). Adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997). A "failure to communicate without justifiable cause" is one that is "voluntary, willful, arbitrary, and without adequate excuse." Id. at 169-70 (quoting In re K.F.H. & K.F.H., 311 Ark. 416, 421, 844 S.W.2d 343, 346 (1993)). The issue of whether justifiable cause existed is factual and turns largely on the credibility of the witnesses. Id. It is not required that a parent fail totally in his or her obligations in order to fail "significantly" within the meaning of the statute. Id. Moreover, the one-year period may be any one-year period, not necessarily the one immediately preceding the filing of the adoption petition. Id.

         We hold that the circuit court's finding that appellant's consent was not required for appellee to adopt E.M. is clearly erroneous. Appellant contended before the circuit court that the orders of protection hindered him from having contact with the children. Appellant was subject to two orders of protection that barred him from "any contact whatsoever, in person or through others, by phone, mail, or any means, directly or indirectly" with Mrs. Price until March 2012. While the orders of protection were in effect, the children were too young to initiate contact with appellant on their own. All contact between appellant and the children would, in some fashion, have to go through Mrs. Price. Given that the orders of protection barred indirect contact by any means with Mrs. Price, it was reasonable for appellant to be concerned that even contact aimed at facilitating contact with the children could constitute a violation of the protective order that would expose him to a period of incarceration. Appellant contacted the children over email, but Mrs. Price's confrontational phone conversations with the probation office induced him to cease that activity. Appellant inquired into video-phone visitation with the children over Skype, but was advised that this ran a risk of violating the protective order.

         There is also no indication that appellant knew where the children were located prior to Mrs. Price filing for divorce. Once the divorce decree was entered, and appellant was allowed visitation with the children, he exercised that visitation to the fullest extent he was allowed, although he lived out of state and his attendance at the visits required extensive travel on his part.[2] Although we have held previously that the one-year period referenced in section 9-9-207 can be any one-year period and is not required to be the one-year period immediately preceding the filing of the adoption petition, we believe that circuit courts should ...


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