428 S.W.3d 543
Ark. Ct. App.2013Background
- KG is Gordon and Draper’s daughter; Drapers petitioned to adopt KG on April 12, 2012.
- ADHS removed KG from Gordon’s custody in December 2010 based on allegations of possession of child pornography.
- Gordon pled guilty on August 5, 2011 to three counts of rape of a minor and is serving three consecutive 35-year sentences.
- Hearing on the adoption petition occurred August 13, 2012; KG testified she wanted adoption by Drapers and had not seen Gordon since December 2010.
- Gordon admitted no contact or support for KG since December 2010; trial court found he failed to communicate and to provide for KG as required.
- Gordon filed a Rule 59 motion on August 22, 2012; the decree granting adoption was entered August 23, 2012; Rule 59 motion deemed denied on September 24, 2012; Gordon did not amend his notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gordon’s consent was unnecessary due to a one-year failure to communicate or support. | Gordon lacked timely communication and support, arguing for removal of consent. | Draper argues consent is not required because of Gordon’s prolonged failure to communicate or support. | Consent not required; adoption affirmed. |
| Whether Gordon’s criminal conviction undermines his fitness as a parent in the adoption. | Gordon asserts criminal charges are irrelevant or unfairly prejudicial. | Adoption permitted where a parent’s abuse is irremediable and consent not required. | Adoption valid without Gordon’s consent given proven abuse and lack of remediation. |
| Whether Gordon preserved all issues for appellate review and any claimed prejudice was reversible. | Gordon contends prejudice and misconduct warrant reversal. | Many issues not preserved due to failure to amend appeal; prejudice issue untimely. | Issues not preserved for review; no reversible error. |
Key Cases Cited
- Reid v. Frazee, 41 S.W.3d 397 (Ark. 2001) (parental contact may be excused in some contexts but noncontact weighed in adoption)
- Zgleszewski v. Zgleszewski, 542 S.W.2d 765 (Ark. 1976) (contact can occur while imprisoned; noncommunication weighed in custody decisions)
- Courtney v. Ward, 391 S.W.3d 686 (Ark. App. 2012) (significant, unjustifiable failure to communicate supports termination of parental rights for adoption)
- Vier v. Vier, 968 S.W.2d 657 (Ark. App. 1998) (failure to seek visitation relevant to adoption)