Holloway v. Carter

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          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION [NO. 60PR-18-601], HONORABLE W. MICHAEL REIF, JUDGE

         Owings Law Firm, Little Rock, by: Steven A. Owings and Tammy B. Gattis, for appellant.

          One brief only.

         OPINION

         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

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(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 ...