623 S.W.3d 571
Ark.2021Background
- Brince and Brandie divorced in Feb 2015; they had two minor daughters (A.M.P. later reached majority during the appeal). Brandie later married Jeremy Rogers.
- In Nov 2018 Brandie and Jeremy Rogers petitioned to adopt the two minor daughters, alleging Brince had "failed significantly" to financially support them for at least one year under Ark. Code Ann. § 9-9-207(a)(2)(ii); they did not allege failure to provide care. Both children consented; Brince opposed the adoption.
- At a bench trial the circuit court found Brandie credible, concluded Brince had the duty to support despite an earlier divorce decree that expressly ordered no support, and found he failed to provide support for two distinct one-year periods; it held his consent was not required and granted the adoption.
- The court of appeals reversed and dismissed; the Arkansas Supreme Court granted review. The Supreme Court conducted de novo review (deferring to credibility findings only as appropriate).
- The Supreme Court reversed and dismissed the circuit court's adoption order, concluding (1) a parent’s reliance on an express divorce decree ordering no support can be a justifiable cause for failure to pay, and (2) § 9-9-207(a)(2)(ii) requires a showing of failure to provide both "care and support," not support alone.
- Because the record showed Brince routinely exercised visitation and provided care while visiting, the Supreme Court held the Rogerses failed to prove the statutory "care and support" exception by clear and convincing evidence; the court therefore did not reach the best-interest determination.
Issues
| Issue | Plaintiff's Argument (Rogers) | Defendant's Argument (Plymale) | Held |
|---|---|---|---|
| Whether consent is unnecessary under Ark. Code Ann. § 9-9-207(a)(2)(ii) because parent "failed significantly" to provide care and support for at least one year without justifiable cause | Brince failed to financially support the children for a period ≥ one year, so consent not required | No support order existed until June 1, 2018; he provided care during visitation and reasonably relied on divorce decree that ordered no support | Reversed: Rogers failed to prove both the "care and support" prong; reliance on express no-support decree can be justifiable cause, so consent was required |
| Whether a court may treat failure to pay child support (when the divorce decree expressly ordered no support) as evidence of "failure without justifiable cause" | The absence of prior support payments shows failure to support for the requisite year(s) | The divorce decree explicitly ordered no support, so nonpayment before the 2018 order was justified reliance | Reversed: court erred to impose a duty contrary to an express no-support order; cannot hold pre-2018 nonpayment against him |
| Whether "failed to provide for the care and support" means either care or support, or requires both | Rogers relied on support failure alone | Plymale argued statute is conjunctive and requires failure as to both care and support | Reversed: statute requires both elements; evidence showed Plymale provided care during visitation, so exception not met |
Key Cases Cited
- Rodgers v. Rodgers, 2017 Ark. 182, 519 S.W.3d 324 (defines “failed significantly” and “without justifiable cause” in adoption-consent context)
- In re Adoption of K.F.H., 311 Ark. 416, 844 S.W.2d 343 (one-year period may be any year before filing)
- Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (burden to prove consent unnecessary is clear and convincing evidence)
- Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (discusses parental support duty and distinctions when court orders differ)
- In re Glover, 288 Ark. 59, 702 S.W.2d 12 (reliance on divorce decree may constitute justifiable cause for nonpayment)
- Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (similar principle regarding reliance on court orders)
- In re Adoption of Parsons, 302 Ark. 427, 791 S.W.2d 681 (emphasizes protection of natural-parent rights in adoption law)
- Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486 (standard of review for bench trial findings)
- Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (recognizes parental legal obligation to support minor children)
- Myers v. Yamato Kogyo Co., Ltd., 2020 Ark. 135, 597 S.W.3d 613 (procedural note on grant of review/consideration by the Court)