APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04PR-16-680-3]
HONORABLE THOMAS E. SMITH, JUDGE
Skarda
Law Firm, by: Cecily Patterson Skarda, for appellant.
Rhoads
& Armstrong, PLLC, by: Johnnie Emberton Rhoads, for
appellees.
PHILLIP T. WHITEAKER, JUDGE
In 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 child's best interest. We affirm.
We
review adoption proceedings de novo. We will not, however,
reverse the circuit court's 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 court's 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.
Holmes
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.
Erin
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 Holmes's 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.
The
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 Holmes's 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.
On
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 parent's 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.[1]
Here,
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.[2] 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.
"Without justifiable cause" denotes a failure that
is voluntary, willful, arbitrary, and without adequate
excuse. In re Adoption of K.F.H. & K.F.H., 311
Ark. 416, 844 S.W.2d 343 (1993).
Despite
the undisputed lack of communication, Holmes argues that his
consent is still required because any failure to communicate
with E.W. was the result of Erin's willful interference.
According to Holmes, Erin stopped answering his texts and
phone calls and began actively blocking his communication
with E.W. This interference, Holmes argues, justifies his
failure to communicate with E.W. and mandates his consent
under Arkansas Code Annotated section 9-9-207. Erin denies
that she actively blocked Holmes's communications with
E.W., but she does admit that she allowed E.W. to decide
whether to communicate with Holmes.[3]
The
circuit court heard, weighed, and evaluated the conflicting
testimony between the parties. This court has stated that in
cases involving minor children, a heavier burden is cast on
the circuit court to utilize to the fullest extent all its
power of perception in evaluating the witnesses, their
testimony, and the children's best interest; that the
appellate court has no such opportunity; and that we know of
no case in which the superior position, ability, and
opportunity of the circuit court to observe the parties carry
as great a weight as one involving minor children.
Navarrete, supra. The court found that
Holmes's last visit with E.W. was in August 2012 and also
found that Holmes made no effort whatsoever to have contact
with E.W. between June 2014 and August 2016. In reaching
these findings, the court made credibility determinations. It
concluded that Holmes did not attempt as much contact with
E.W. as he believed and that Erin thwarted Holmes's
visitation more than she believed. The court also found
Holmes's testimony that he did not know how to contact
his son not credible. By clear and convincing evidence, the
court found that the facts did not constitute justifiable
cause for Holmes's lack of communication with E.W. and
that Holmes's consent to the adoption was not required.
We find no error on this point.
Holmes
argues in his second and third points on appeal that the
circuit court erred in finding that the adoption was in
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