614 S.W.3d 850
Ark. Ct. App.2020Background
- Darin French, the undisputed biological father, was incarcerated beginning in 2009 and had little to no contact with his four daughters after a California divorce in 2012. A California decree relieved him of any child-support obligation.
- Jennifer (the children’s mother) moved the children through multiple states (Texas, Arizona, Arkansas) and, by her own admission, cut off phone contact with Darin, changed the children’s and her own surnames, and did not provide Darin with updated contact information.
- Kenneth Hoelzeman (the mother’s husband/stepfather) petitioned in Conway County, Arkansas, to adopt the children with Jennifer’s consent; the petition alleged Darin had not communicated with or supported the children for years.
- The circuit court found Darin had “the ability to find and contact his children” and concluded his consent was not required under Ark. Code Ann. § 9-9-207(a)(2) because he failed significantly, without justifiable cause, to communicate with or support the children for at least one year.
- On appeal, the Arkansas Court of Appeals reversed and dismissed the adoption petition, holding (1) Jennifer’s prolonged concealment of the children’s whereabouts justified Darin’s failure to communicate, and (2) the California judgment relieving Darin of support made his nonpayment legally justified.
- Procedural/evidentiary context: Darin sought continuance and telephonic participation from prison; requests were denied and his parents/grandparents were not permitted to testify at the hearing, which affected the record regarding efforts to contact the children.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Darin’s >1‑year failure to communicate was unjustified under Ark. Code Ann. § 9‑9‑207(a)(2)(i) | Kenneth: Darin knew or could have learned children’s location (via grandparents, federal sentencing, or an attorney) and thus voluntarily failed to communicate | Darin: Jennifer actively concealed addresses, changed names, cut off phone contact, and his incarceration/denied access impeded meaningful communication | Reversed: Court held Jennifer’s prolonged concealment legally justified Darin’s lack of communication; consent required denial was erroneous |
| Whether Darin’s failure to provide support was unjustified under § 9‑9‑207(a)(2)(ii) | Kenneth: A parent has a continuing legal/moral duty to support children; nonpayment supports finding of unjustified failure | Darin: California divorce/custody judgment expressly relieved him of child‑support obligations; nonpayment was therefore legally justified | Reversed: Court held the California judgment governs; because no support was ordered, nonpayment cannot be used to strip parental consent |
Key Cases Cited
- In re Adoption of Glover, 288 Ark. 59 (court may not use non‑court‑ordered nonpayment against a parent in adoption proceedings)
- Neel v. Harrison, 93 Ark. App. 424 (220 S.W.3d 251) (§ 9‑9‑207(a)(2)(ii) cannot be applied when a court order relieved parent of support)
- In re Adoption of A.M.C., 368 Ark. 369 (246 S.W.3d 426) (imprisoned parent’s consent not required where court had ordered support and parent failed to pay)
- In re Adoption of Lybrand, 329 Ark. 163 (defines unjustified failure to communicate as voluntary, willful, arbitrary, and without adequate excuse)
- In re Adoption of Baby B., 2012 Ark. 92 (394 S.W.3d 837) (parent who conceals child should not be rewarded; concealment is relevant to justification analysis)
- Racine v. Nelson, 2011 Ark. 50 (378 S.W.3d 93) (failure to make good‑faith efforts to locate child can be unjustified)