FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23PR-17-210]
HONORABLE H.G. FOSTER, JUDGE
& Taylor Law Firm, P.A., by: Andrew M. Taylor, Tasha C.
Taylor, and Tory H. Lewis, for appellant.
& Co., PLLC, by: Tim Cullen, for appellee.
RAYMOND R. ABRAMSON, Judge
Johnson appeals the Faulkner County Circuit Court order
denying his petition to adopt T.D., which was contested by
the child's biological father, Derek Beatty. On appeal,
Cody argues that the circuit court erred by finding that (1)
Derek's consent to the adoption was required because his
failure to communicate with, and to provide care and support
for, T.D. was justifiable and (2) the adoption was not in the
child's best interest. We reverse.
1, 2017, Cody filed a petition to adopt T.D. He asserted that
Derek's consent to the adoption was not required because
for more than one year Derek had failed significantly and
without justifiable cause to communicate with T.D and to
provide for his care and support. On June 23, Derek filed a
response contesting the adoption. The court held a hearing on
Dayberry, T.D.'s mother, testified that T.D. was born on
October 7, 2006, and that Derek is his biological father. She
stated that she and Derek never married but that they lived
together from December 2006 through the spring of 2007. She
explained that after she moved away from Derek in 2007, he
did not see T.D. until July 2008 when the Saline County
Circuit Court entered an agreed order for visitation. She
testified that Derek exercised his visitation with T.D. for
only a few months because Derek was incarcerated in 2009. She
explained that after his release from prison in March 2011,
the circuit court entered an order granting Derek supervised
visitation, but the visits ended when Derek was incarcerated
again. Specifically, in October 2011, the Saline County
Circuit Court entered an order suspending Derek's visits
due to his criminal charges.Amber stated that Derek had not
seen or had contact with T.D. since March or April 2011. She
noted that T.D. was five years old at the time and that he is
now eleven years old.
further testified that the circuit court ordered Derek to pay
child support in 2008 but that she had not received support
since 2008 or 2009. She explained that he made only a few
payments immediately after the entry of the child-support
order. She stated that his arrears totaled thousands of
acknowledged that Derek had called her multiple times from
prison to discuss paying child support. She stated that she
set up a post office box but did not receive any support. She
further acknowledged that he had contacted her to see T.D.
while he was on furlough from prison, but she told him that
they were busy.
her relationship with Cody, Amber testified that they had
been dating since October 2014, had moved in together in
December 2016, and had married in January 2017. She stated
that T.D. refers to Cody as "dad" and that they
have a father-son relationship.
testified that he has misdemeanor convictions for criminal
mischief, public intoxication, driving on a suspended
license, and carrying a weapon and that he has been
incarcerated in the Arkansas Department of Correction twice.
Specifically, in 2009, he was convicted of prescription fraud
and served nine months in prison. In 2011, he was convicted
of aggravated robbery for theft of prescriptions drugs, and
he is currently serving a ten-year sentence. He stated that
he is eligible for parole in February 2018.
testified that he does not believe the adoption is in
T.D.'s best interest because he loves his son and has
tried to maintain contact with him. He stated that when he
went to prison in 2011, he wrote letters to Amber and sent
her a birthday card for T.D. He also stated that he sent T.D.
a letter in 2013 but that the letter was returned to him.
Derek further testified that when he was on furlough in May
2015, he and Amber communicated on Facebook and by phone
about T.D., but Amber stopped answering his calls around
Father's Day of that year. He noted that he did not
persist in communication with her because she caused
"drama," and he did not want to risk losing his
penitentiary privileges. He explained that he has furlough
once a month and that he is released to his father's home
from Friday through Sunday. He noted Amber had provided him
the address of a post office box and that he had sent prison
visitation forms, but she did not arrange visitation with
stated that in prison, he has taken classes, such as a
nine-month substance-abuse program, to improve himself. He
testified that he is in a work-release program and that he
works at Prospect Steel in Blytheville, Arkansas. He earns
$850 a week. Derek stated that when he started the
work-release program, he contacted the child-support office
to make payments, but he was informed that his case had been
"canceled." He stated that he last sent support for
T.D. in 2009 or 2010. Derek testified that he was young and
immature from 2006 through 2011 and that he has changed since
he has been in prison.
Mae Dayberry, T.D.'s maternal grandmother, testified that
she is active in T.D.'s life and that T.D. and Amber had
lived with her for several years. She stated that T.D. sees
Cody as his father and that they have a phenomenal
relationship. She stated that Derek is a stranger to T.D and
that he has not seen him since 2011. She is unaware of any
letters or cards that Derek sent to T.D. She stated ...