381 S.W.3d 900
Ark. Ct. App.2011Background
- Eric Fox, natural father, challenges adoption of his son B.F. by stepfather Christopher Nagle.
- Christopher and Stephanie (Nagle) filed to adopt B.F. on August 7, 2009; Eric responded and moved to dismiss, arguing consent was unnecessary.
- Arkansas statute 9-9-207(a)(2) provides consent is unnecessary if a parent has failed significantly for at least one year to communicate or to provide for the child’s care.
- Circuit court held a hearing and concluded Eric’s consent was not required due to failure to communicate, then proceeded to best-interest analysis and granted the adoption decree.
- Standard of review is de novo; clear and convincing evidence required to show consent is unnecessary; appellate review for clear error in factual findings.
- The court reversed and remanded, holding Eric did not fail significantly to communicate without justifiable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent was unnecessary under 9-9-207(a)(2)(i). | Fox argues he did not fail significantly to communicate without justifiable cause for the requisite year. | Nagle and Stephanie contended Fox failed significantly to communicate with B.F. during the year. | Consent unnecessary not proven; trial court erred; remand. |
| Whether the trial court’s finding of failure to communicate was clearly erroneous. | Fox maintained he had frequent, meaningful contact with B.F. and attempts to communicate were hindered by others. | Court accepted witnesses’ testimony showing limited contact and concluded Fox’s efforts were insufficient. | Finding was clearly erroneous; reversal and remand. |
Key Cases Cited
- In re Adoption of Lybrand, 329 Ark. 163 (Ark. 1997) (failure to communicate without justifiable cause is voluntary and willful)
- In re Adoption of S.C.D., 358 Ark. 51 (Ark. 2004) (deference to trial court on credibility; de novo standard for adoption)
- Apel v. Cummings, 76 Ark. App. 93 (Ark. App. 2001) (father’s limited contact over a long period contrasted with required standards)
- In re Adoption of Glover, 288 Ark. 59 (Ark. 1986) (court favorable to preserving natural parent-child relationship)
- Pender v. McKee, 266 Ark. 18 (Ark. 1979) (definition of significant failure and reasonable interpretation of statutory terms)
- Neel v. Harrison, 93 Ark. App. 424 (Ark. App. 2005) (significant failure can be meaningful even if not total)
- Vier v. Hart, 62 Ark. App. 89 (Ark. App. 1998) (credibility given to trial judge in child welfare matters)