FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04PR-16-680-3],
HONORABLE THOMAS E. SMITH, JUDGE
Law Firm, by: Cecily Patterson Skarda, for appellant.
& Armstrong, PLLC, by: Johnnie Emberton Rhoads, Rogers, for
T. WHITEAKER, Judge
this stepparent adoption case, appellant Greg Holmes appeals
a final decree from the Benton County Circuit Court granting
an adoption petition filed by appellees Erin and Michael
Wilhelm. Holmes argues five points, but his primary
contention is that the circuit court erred by finding that
his consent was not necessary and that the adoption was in
the childs best interest. We affirm.
review adoption proceedings de novo. We will not, however,
reverse the circuit courts decision unless it is clearly
erroneous or against a preponderance of the evidence, after
giving due regard to its superior opportunity to determine
the credibility of the witnesses. Navarrete v.
Creech, 2016 Ark.App. 414, 501 S.W.3d 871. We give great
weight to a circuit courts personal observations when the
welfare of children is involved. Id. With these
standards in mind, we turn our attention to a de novo review
of the proceedings and the evidence before the circuit court.
and Erin Wilhelm were previously married. E.W. was born on
August 29, 2006, during the marriage. Holmes and Erin
divorced in November 2007 in Pulaski County. By an agreed
divorce decree, Holmes and Erin had joint custody, but Erin
was named the custodial parent. Holmes was awarded visitation
and ordered to pay child support.
moved to Northwest Arkansas after the divorce. She began
dating Michael Wilhelm in mid-2012, and they married in April
2013. In August 2016, Michael and Erin filed a petition for
Michael to adopt E.W. They asserted that Holmess consent was
not required under Arkansas Code Annotated section
9-9-207(a)(2)(i) (Repl. 2015) because Holmes had failed
significantly without justifiable cause to communicate with
E.W. for a period of at least one year. Holmes filed a pro se
answer denying the material allegations of the petition.
Holmes later retained counsel to represent him.
parties litigated the case over three days between February
and April 2017. On June 27, 2017, the circuit court entered
its decree of adoption. The court found that Holmes had
received appropriate statutory notice pursuant to the notice
provisions of Act 1779 of 2001, that Holmess consent was not
required in that he had failed significantly without
justifiable cause to communicate with E.W. for a period of at
least one year, and that it was in E.W.s best interest to
grant the adoption. This appeal followed.
appeal, Holmes argues five points. First, he argues that his
consent to the adoption was required. Generally, a petition
to adopt a minor may be granted only if written consent has
been executed by the father of the minor if he was married to
the mother at the time the minor was conceived or at any time
thereafter. Ark. Code Ann. § 9-9-206(a)(2)(A). Holmes was
married to Erin when E.W. was conceived, and this general
rule would require his consent. There are exceptions to this
general rule, however. One of the exceptions relevant to this
appeal is found in Arkansas Code Annotated section
9-9-207(a)(2), which provides that a parents consent to
adoption is not required if the child is in the custody of
another, and the parent for a period of at least one year has
failed significantly without justifiable cause to either
communicate with the child or to provide for the care and
support of the child.
the circuit court heard undisputed evidence that the last
visit between Holmes and E.W. was in August 2012 and that the
last contact of any kind between Holmes and E.W. was in
December 2013. Likewise, the circuit court heard evidence
that between June 2014 and early August 2016, there was no
contact whatsoever between Holmes and E.W. There is no
dispute that Holmes had no communication with E.W. for a
period in excess of one year. The issue then becomes whether
Holmes failed significantly to communicate without
justifiable cause. "Failed significantly" certainly
does not mean "failed totally." Pender v.
McKee,266 Ark. 18, 582 S.W.2d 929 (1979). Rather, it
means a failure that is meaningful or important. Id.