APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION
[NO. 60PR-18-601] HONORABLE W. MICHAEL REIF, JUDGE
Owings
Law Firm, by: Steven A. Owings and Tammy B. Gattis, for
appellant.
One
brief only.
PHILLIP T. WHITEAKER, JUDGE
Andre
Holloway appeals the Pulaski County Circuit Court's
denial of his petition for adoption on the grounds that the
consent of the appellee, William Carter, was required. On
appeal, Andre argues that the court erred in denying his
petition because William unjustifiably failed to communicate
with the child, K.C., and failed to provide for the care and
support of the child for a period of one year and that his
consent to the adoption was thus not required. We agree that
the circuit court's decision was clearly erroneous, and
we reverse and remand.
We
recite the following fact summary as pertinent to our
analysis and conclusion. Andre is married to Barbara
Holloway.[1] Barbara is the mother of K.C., who was
born on June 7, 2010. Although William was listed on the
birth certificate as K.C.'s father, he and Barbara were
never married. Barbara has maintained custody of K.C. since
his birth. William has been largely uninvolved in K.C.'s
life, and his lack of involvement was enhanced by his
incarceration in 2014 following multiple criminal
convictions. William remained incarcerated through the
duration of the instant case.
Andre
is a C-130 loadmaster in the United States Air Force. In
2018, he learned he would be deployed to Germany. When the
Holloways asked William to sign a passport application for
K.C. in early 2018, William refused. Shortly thereafter,
Andre filed a petition to adopt K.C. alleging that
William's consent to the adoption was not required under
Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 2015).
The
circuit court held a hearing on Andre's petition and
considered testimony from the Holloways, William, and Thomas
Burns, general counsel for the Arkansas Department of
Correction. The circuit court ultimately entered an order
denying the petition, finding that Andre failed to meet his
burden of proving that William's consent to the adoption
was not required. Specifically, the court found that Andre
had failed to present clear and convincing evidence that
William failed to provide support for the child for twelve
consecutive months. In addition, while the court found that
the evidence showed that William had not communicated with
the child during his incarceration, such failure to
communicate was not without adequate excuse.
Andre
timely appealed the circuit court's denial of his
adoption petition. He argues that the circuit court erred in
finding that William's consent was required under
Arkansas Code Annotated section 9-9-207(a)(2). Under this
statute, Andre had the burden of proving by clear and
convincing evidence that William's consent to an adoption
was not required because K.C. was in the custody of
another--Barbara--and that William for a period of at least
one year failed significantly without justifiable cause (i)
to communicate with K.C. or (ii) to provide for the care and
support for K.C. as required by law or judicial decree.
Andre, who wishes to adopt K.C. without William's
consent, must prove that William's consent is
unnecessary. In re Adoption of Lybrand, 329 Ark.
163, 169, 946 S.W.2d 946, 949 (1997). There is a heavy burden
placed on the party seeking to adopt a child without the
consent of a natural parent to prove the failure to
communicate or the failure to support by clear and convincing
evidence. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d
93.
We
review adoption proceedings de novo. In re Adoption of
S.C.D., 358 Ark. 51, 186 S.W.3d 225 (2004); A.R. v.
Brown, 103 Ark.App. 1, 285 S.W.3d 716 (2008). We give
due regard to the opportunity and superior position of the
trial judge to determine the credibility of witnesses, and we
have stated that the personal observations of the trial judge
are entitled to even more weight in cases involving the
welfare of a small child. Fox v. Nagle, 2011
Ark.App. 178, 381 S.W.3d 900. We will not reverse a circuit
court's finding regarding whether consent is unnecessary
due to failure to support or communicate with the child
unless it is clearly erroneous. Id. A finding is
clearly erroneous when, although there is evidence to support
it, the reviewing court on the entire evidence is left with a
definite and firm conviction that a mistake has been made.
Id.
In this
case, we are left with a definite and firm conviction that
the circuit court made a mistake in its findings regarding
William's failure to communicate with K.C.[2] A failure to
communicate without justifiable cause is one that is
voluntary, willful, arbitrary, and without adequate excuse.
In re Adoption of Lybrand, 329 Ark. at 169-70, 946
S.W.2d at 950. It is not required that a parent fail totally
in these obligations in order to fail significantly within
the meaning of the statutes. Id. at 170, 946 S.W.2d
at 950.
Our de
novo review reveals the following undisputed evidence
presented in this case. William has been incarcerated in the
ADC since 2014. During that time, William did not send K.C.
cards or gifts for birthdays or Christmases. William
acknowledged that he had no proof that he communicated with
K.C. during 2014 or 2016. Thomas Burns from the ADC verified
that between 2015 and 2018, William made one phone call to
the telephone number associated with the Holloways. Other
testimony, however, revealed that during this solitary phone
call, William spoke only with Barbara and not with K.C. In
fact, William's only communications were with the
Holloways-never with K.C. Himself. Concerning physical
contact or visits, William asserted that K.C. had visited him
in the penitentiary twice in 2015. Outside of those limited
visits, however, William has not seen K.C. since 2016. This
evidence is clear and convincing that William failed to
communicate with K.C. for a period of one year.[3]
Here,
the circuit court found that William's "failure to
communicate was not without adequate
excuse."[4] The court acknowledged that William did
not write to, or otherwise communicate with, K.C. during his
incarceration; it nonetheless found that his failure to
communicate was not without adequate excuse. The circuit
court did not expressly spell out its reasoning behind this
conclusion; however, we glean from its order that it believed
the failure to communicate was based on tensions that arose
between William and the Holloways after William had refused
to sign K.C.'s passport application. The court wrote as
follows:
In 2018, [Andre] wrote a letter to Mr. Carter which indicated
that [Andre] would help facilitate visitation between the
...