Holloway v. Carter
Holloway v. Carter
Opinion of the Court
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.
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 *191(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 ,
We review adoption proceedings de novo. In re Adoption of S.C.D. ,
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.
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.
Here, the circuit court found that William's "failure to communicate was not *192without adequate excuse."
In 2018, [Andre] wrote a letter to Mr. Carter which indicated that [Andre] would help facilitate visitation between the minor child and Mr. Carter.
[Andre] is in the United States Air Force and will be stationed in Germany for three years requiring a passport for the minor child. At the hearing, [Andre] testified that he did not continue to facilitate visitation between Mr. Carter and the minor child when Mr. Carter indicated that he would not sign the passport application until after he received visitation with the minor child.
The court therefore found that William's failure to communicate was not without adequate excuse, and it thus could not find by clear and convincing evidence that William had failed without justifiable cause to communicate with the minor child. For the following reasons, we disagree.
First, assuming the reason enunciated by the circuit court rendered William's failure to communicate justifiable,
Second, the circuit court's finding is not supported by cases from either the supreme court or our court. In Rodgers v. Rodgers ,
Likewise, in In re Adoption of J.N. ,
We conclude that William's lack of initiative and his lack of communication were significant failures. "Failed significantly" does not mean "failed totally." Id. at 9,
Reversed and remanded.
Klappenbach and Vaught, JJ., agree.
Andre and Barbara began dating in 2016 and married in 2017. At the time of Andre and Barbara's marriage, K.C. was approximately seven years old.
Because we reverse and remand on the issue of failure to communicate, we need not address Andre's arguments regarding William's failure to support. See Cowsert v. Bargar ,
The one-year requirement applies to any one-year period between the date of the child's birth and the date the petition for adoption was filed and is not limited to the year immediately preceding the filing of the adoption petition. Ray v. Sellers ,
The circuit court entered an order that did not clearly articulate whether William failed to communicate. We assume that the court did tacitly reach this conclusion because it ultimately found that William's "failure to communicate was not without adequate excuse."
We do not agree that this is a justifiable reason.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.