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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 Courts 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
courts 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 Williams
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 Andres 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 Williams 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 courts denial of his adoption
petition. He argues that the circuit court erred in finding
that Williams 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 Williams 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 Williams consent, must prove that Williams 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 ...