Holmes v. Wilhelm

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          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, Rogers, for appellees.

         OPINION

         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.

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          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 ...