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In re Adoption of T.A.D.

Court of Appeals of Arkansas, Division II

November 6, 2019

In the MATTER OF the ADOPTION OF T.A.D., a Minor Child Cody Johnson, Appellant
Derek Beatty, Appellee


         Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor, Tasha C. Taylor, Little Rock, and Tory H. Lewis, for appellant.

         Cullen & Co., PLLC, by: Tim Cullen, for appellee.


         RAYMOND R. ABRAMSON, Judge

          Cody 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.

          On May 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 October 17.

         Amber 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.[1] 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.

          Amber 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 dollars.

          Amber 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.

          As to 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.

          Derek 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.

          Derek 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 T.D.

          Derek 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.

          Glennis 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 ...

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