In the Matter of the Adoption of Minor Children, Jesus Feliciana Andrade v. Cara Jean Derouen and Courtney Lynn Derouen

Cite as 2025 Ark. App. 116
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-24-15

IN THE MATTER OF THE ADOPTION Opinion Delivered February 26, 2025

OF MINOR CHILDREN
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
JESUS FELICIANA ANDRADE
[NO. 72PR-23-290]
APPELLANT

HONORABLE BETH STOREY BRYAN,
V.
JUDGE

CARA JEAN DEROUEN AND
COURTNEY LYNN DEROUEN AFFIRMED
APPELLEES

ROBERT J. GLADWIN, Judge

Jesus Andrade appeals the September 19, 2023 order1 of the Washington County

Circuit Court finding his consent to the stepparent adoption of his four minor children,

MC1, MC2, MC3, and MC4 (collectively “minor children”)2 by Cara Jean Derouen and

Courtney Lynn Derouen unnecessary pursuant to Arkansas Code Annotated section 9-9-

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Incorporated within the order is an order entered the previous day finding that
Andrade’s consent to the adoption was not required under Arkansas Code Annotated
section 9-9-207(a)(1) or (a)(2). See Ark. R. App. P. Civ. 2 (b) (2024) (stating that an appeal
from any final order also brings up for review any intermediate order involving the merits
and necessarily affecting the judgment).
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MC2, MC3, and MC4 are Andrade’s biological children, and he previously had
adopted MC1.
207(a)(1) and (2) (Repl. 2020). He argues that granting the stepparent adoption without his

consent was clearly erroneous. We affirm.

I. Facts and Procedural History

Andrade and Cara were married on January 25, 2015, in Albuquerque, New Mexico.

They separated in the summer of 2019 because Andrade had been physically violent. Cara

never filed any police or DHS reports alleging that Andrade had been physically violent

toward the minor children during their marriage because she was afraid of him. She claimed

that he did not start getting physically violent with the minor children until 2019 when

“everything was unraveling” but claimed that he had always been verbally and emotionally

abusive toward them. Cara did file police reports for vandalism that Andrade committed

against her property and against her employer’s property.

Cara began a relationship with Courtney in January 2020. On March 1 of that year,

Andrade was charged with attempted murder for attacking Courtney. Immediately following

the attack, Cara and Courtney obtained a temporary restraining order against Andrade.

Andrade eventually pled guilty to the lesser charge of aggravated burglary and has been

incarcerated in New Mexico since that time.

Cara and Courtney obtained a final order of protection against Andrade on June 24,

2020, which noted that the order was entered on the stipulation of the parties and that both

parties appeared in person and were represented by counsel. The final order of protection

prohibited Andrade from contacting Cara and Courtney for three years—from June 24, 2020,

to June 24, 2023.

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Attached to the final order of protection was a temporary “Custody, Support, and

Division of Property Order” that gave Cara temporary legal custody of the minor children

and stated that Andrade shall have no contact until further ordered. The temporary order

expired on December 24, 2020. Specifically relevant to this matter, the temporary order

states on page 3 under the heading “EXPIRATION” that the “provisions set forth regarding

custody, support, and division of property shall expire on the 24th day of DECEMBER 2020

at 5:00 p.m.”

At some point between June and December 24, while the prohibition on contact with

the minor children was still in place, Andrade letters addressed to the children; however,

Cara stated the contents of those letters were not “geared towards” them. Andrade was

charged with disorderly conduct for sending the letters during the prohibited period.

A final order dissolving the marriage was filed on December 28, also in New Mexico.

The order granted primary physical custody and sole legal custody of the minor children to

Cara and included a finding that the “father’s current incarceration renders him not able to

participate in a meaningful way in co-parenting the children.” The order further stated that

the “father should only be permitted to have contact with the children pursuant to terms

and conditions imposed by mother to ensure their physical safety and emotional wellbeing.”

The order further provided, “Father’s guideline obligation for on-going child support

is $417.23,” but in the next paragraph it detailed that “Mother further testified that each of

the Children receives $220.00 per month as derivative benefits due to Father’s disability.

Accordingly, the Children receive a total of $880.00 per month, which exceeds Father’s

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guideline support obligation. Therefore, Father should not be required to pay any additional

amounts to Mother for child support.” The order goes on to state, “The parties should divide

the cost of uncovered medical expenses for the Children in proportion to their incomes as

shown on the child support worksheet.”

On May 28, 2022, Courtney and Cara married, and on March 29, 2023, Courtney

and Cara filed a petition for adoption of the minor children. At the conclusion of the

adoption hearing held on September 13, the circuit court awarded Cara sole custody of the

minor children. The circuit court’s oral ruling concluded:

So, the Court finds, again, based on the uncontroverted evidence that it’s in
the best interest of the minor children that the Petition for Adoption be granted, and
further finds that Mr. Andrade’s consent is not required as he has abandoned the
children because of his failure to pay any support since at least 2020 and his failure
to have any communication with the children since at least December of 2020.

In responding to a question from counsel, the circuit court clarified that it was finding

both abandonment under Arkansas Code Annotated section 9-9-907(a)(1) and, alternatively,

failure to communicate or support for one year under Arkansas Code Annotated section 9-

9-207(a)(2) as grounds for not requiring Andrade’s consent to the adoption:

The Court would further make an alternative finding that pursuant to 9-9-207,
Subsection (a)(2), that the parent for at least one year has failed significantly without
justifiable cause to communicate with the child, or to provide for the care and support
of the child as required by law or judicial decree. That was not pled in the petition,
but certainly that was the testimony, and the Court would amend the pleadings to
reflect that testimony that was put in. So, again, as an alternative finding, the Court
finds that under 9-9-207(a)(1)(2), his consent is further not required.

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A written order was entered on September 18 that stated: “Respondent’s consent to

the adoption herein is not required under A.C.A. § 9-9-207(a)(1). Further, Respondent’s

consent to the adoption herein is not required under A.C.A. § 9-9-207(a)(2).”

The adoption decree dated September 19 included the following finding:

9. The biological father of the children herein, Jesus Andrade, has been found
to have abandoned the minor children, has been found to have failed significantly,
without justifiable cause, to communicate with the minor children for one (1) year or
more, and has been found to have failed significantly, without justifiable cause, to
provide support for the care and support of the minor children. Therefore, pursuant
to Ark. Code Ann. § 9-9-207(a)(1) and 9-9-207(A)(2), his further consent is not
required, and his legal rights are now terminated.

A notice of appeal of the September 18 order was timely filed on October 18, and

this appeal followed.

II. Standard of Review and Applicable Law

This court reviews adoption proceedings de novo. In re Adoption of KAB, 2021 Ark.

App. 24, 616 S.W.3d 260. We give due regard to the opportunity and superior position of

the circuit court to determine the credibility of witnesses, and we have stated that the

personal observations of the circuit court are entitled to even more weight in cases involving

the welfare of a child. Id. A circuit court’s finding regarding whether consent is unnecessary

will not be reversed unless clearly erroneous. See id. A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court on the entire evidence is left

with a definite and firm conviction that a mistake has been made. Id.

Adoption statutes are strictly construed, and a person wishing to adopt a child

without the consent of the parent must prove by clear and convincing evidence that consent

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is unnecessary. In re Adoption of Minor Child, 2022 Ark. App. 408, at 6, 653 S.W.3d 544, 548.

Under Arkansas law, consent to adoption is not required of a parent who has abandoned a

child; consent to adoption is also not required of a parent of a child in the custody of another

if the parent for a period of at least one year has failed significantly without justifiable cause

to communicate with the child or to provide for the care and support of the child as required

by law or judicial decree. Ark. Code Ann. § 9-9-207(a)(1), (2).

III. Discussion

Andrade argues that the circuit court erred by finding his consent was not required

because he abandoned the minor children or failed to communicate or support the minor

children for a period of a year “without justifiable cause.” Andrade contends that there was

just cause for his estrangement, including the fact of his incarceration in New Mexico, a no-

contact order, and the terms of the order of divorce that prohibited any contact with the

minor children. Accordingly, Andrade urges the adoptions should not have been allowed to

proceed without his consent.

The circuit court made two alternative findings to support its decision that Andrade’s

consent to the adoption was not required pursuant to subdivisions 9-9-207(a)(1) and (2):

failure to communicate with the disjunctive conjunction “or” failure to support.

A. Failure to Communicate

The circuit court found that Andrade’s consent was not necessary, in part, because of

his failure to “have any communication” with the minor children since at least December

2020. Andrade argues that he had “justifiable cause” for any failure to communicate with

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the minor children because of his incarceration, the order of protection, and the terms of

the order of divorce. His claims any lack of communication was involuntary and beyond his

control. We disagree.

Under the statute, consent to adoption is not required of

a parent of a child in the custody of another, if the parent for a period of at least one
(1) year has failed significantly without justifiable cause (i) to communicate with the
child or (ii) to provide for the care and support of the child as required by law or
judicial decree.

Ark. Code Ann. § 9-9-207(a)(2) (emphasis added). Justifiable cause means the significant

failure must be willful in the sense of being voluntary and intentional; it must appear the

parent acted arbitrarily and without just cause or adequate excuse. In re Adoption of Minor

Child, 2022 Ark. App. 408, at 6, 653 S.W.3d at 548. The issue of whether there was justifiable

cause is factual and turns largely on the credibility of the witnesses. Martini v. Price, 2016

Ark. 472, at 5, 507 S.W.3d 486, 489. It is not required that a parent fail totally in his or her

obligations to fail “significantly” within the meaning of the statute. Id. Moreover, the one-

year period may be any one-year period, not necessarily the one immediately preceding the

filing of the adoption petition. Id.

The record indicates that between December 24, 2020, and December 2022, Andrade

made no attempts to contact the minor children. Andrade made no attempt to reach out to

Cara through friends, family, or an attorney. Cara’s and MC1’s cell phone numbers have

not changed since 2015. Andrade testified that at some point, he lost access to a cell phone

while in prison. When he did have access to a cell phone, he deleted MC1’s number from

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it. Once in December 2022 or February 2023, Andrade’s friend, Kent, texted MC1 on

Andrade’s behalf. Andrade gave Kent permission to contact the family. Andrade sent letters

addressed to the minor children after the petition for adoption was filed, although the

contents of the letters were not aimed at them. Cara testified that she has not imposed any

terms or conditions regarding contact with the minor children. She testified that she was

never contacted by an attorney on behalf of Andrade requesting terms or conditions for

communication. Moreover, Andrade made no attempt to modify the custody terms of the

order of divorce.

With respect to his incarceration, the record supports the circuit court’s finding that

his lack of access to a cell phone and his voluntary deletion of MC1’s phone number did not

prohibit him from attempting to communicate with the minor children via any other means

available to him. The circuit court made specific note of this fact in its oral findings:

Further, there’s been no communication whatsoever with the children since
at least December of 2020. It’s his testimony that he doesn’t - - he no longer has the
cell phone in his possession that have the child’s number on it, but, again, there’s
been no evidence of any efforts made by Mr. Andrade to have any communication
with the children.

See, e.g., Gordon v. Draper, 2013 Ark. App. 352, at 6, 428 S.W.3d 543, 546 (citing Zgleszewski

v. Zgleszewski, 260 Ark. 629, 632, 542 S.W.2d 765, 767–68 (1976)) (holding imprisonment

is no justification for failure to communicate with child). Moreover, in a recent case that had

a similar fact pattern, the court made clear that a father’s intentional misconduct that served

as the basis for his incarceration or the necessity of an order of protection did not grant just

cause since the restraint is the direct result of his intentional misconduct. In re Adoption of

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Minor Child, 2023 Ark. App. 522, at 6, 678 S.W.3d 899, 903. Therefore, Andrade’s argument

that he did not have a cell phone is meritless.

And the record is void of evidence that Andrade ever asked Cara to bring the minor

children to visit or that she refused any such hypothetical request. To the extent that

Andrade is making such a claim, it was never made before the circuit court and therefore

should not be considered or addressed by this court. See Brown v. Shipley, 2022 Ark. App.

246, at 10, 646 S.W.3d 635, 641.

This court has held that there is a clear distinction between “communication and

visitation,” stating that the terms are not synonymous and interchangeable. In re Adoption of

Minor Child, 2024 Ark. App. 202, at 5, 686 S.W.3d 858, 862. The allowance or disallowance

of one does not equate to an allowance or disallowance of the other. Id. (refusing father’s

rationale that the parties’ divorce decree’s visitation provision served to excuse him from his

parental obligation to communicate with his child). The fact that Andrade could not have

visitation with the minor children in no way negates his responsibility or ability to have

continued communication with them. And this court held in Rodgers v. Rodgers, where a

parent had her visitation with her minor child suspended by order of court, that “the statute

reads it’s a parent’s failure to ‘communicate with the child,’ not a failure to have visitation

with the child that allows adoption to proceed without consent. Ark. Code Ann. § 9-9-

207(a)(2).” 2017 Ark. 182, at 5, 519 S.W.3d 324, 328. The court went on to note that the

parent could have communicated with the children in other ways: “she could have made

telephone calls to the children, sent birthday or Christmas cards, letters, or emails, but she

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attempted to do none of these.” Id. Similarly, in this case, Andrade failed to make any

attempts at communicating with the minor children through any means.

Andrade’s argument regarding the order of protection is likewise misplaced.

Although the record reflects there was a final order of protection entered on June 24, 2020

(to last until June 24, 2023), it applied to Cara and Courtney and prohibited him from

contacting them. Although the temporary custody, support, and division-of-property order

that was also entered on June 24, 2020, prohibited Andrade from having contact with the

minor children “until further ordered,” that order expressly expired on December 24, 2020.

Thus, any legal impediment that prevented Andrade from having contact with the minor

children expired on December 24, 2020.

Finally, we hold that nothing in the order of divorce prohibited Andrade from

communicating with his minor children. The order of divorce did set a boundary in that he

was permitted to have contact only “pursuant to terms and conditions imposed by the

Mother to ensure the physical safety and their emotional well-being.” We find no merit in

Andrade’s argument that because “Cara didn’t impose any terms and conditions,” he had

“just cause” to fail to communicate with the minor children. There is no evidence that

Andrade attempted to have an attorney or any other intermediary contact Cara to work out

an arrangement for communicating with the minor children while he was incarcerated.

Andrade specifically testified that he did not make any attempts to modify or assert

any rights under the custody agreement. For purposes of determining whether a parent

willfully deserted his child or intended to maintain his parental role, the circuit court may

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consider as a factor whether the parent sought to enforce his visitation right during the

relevant one-year period. See Vier v. Hart, 62 Ark. App. 89, 94, 968 S.W.2d 657, 660 (1998).

Though Andrade’s incarceration may have limited visitation, he was afforded an opportunity

to communicate with the minor children under the terms of the order of divorce, and he

did nothing to exercise those rights.

For all these reasons, we hold that the circuit court did not err in finding that because

Andrade failed to communicate with the minor children, his consent was not required. See,

e.g., Newkirk v. Hankins, 2016 Ark. App. 186, 486 S.W.3d 827 (holding that the circuit court

did not err in finding that consent was unnecessary due to the appellant’s failure to support

or communicate with the child).

B. Failure to Support

Andrade also submits that the circuit court’s finding of a failure to support for more

than one year is legally excused by “justifiable cause” as embedded in section 9-9-207 (a)(2).

The record indicates that Cara has received no support for the minor children since

the divorce in December 2020. The circuit court found that the order of divorce assigned a

child-support obligation to Andrade in the amount of $417.23 but then found that because

the minor children were receiving more in Veterans Administration (“VA”) benefits in the

amount of $220 each, Andrade would not be responsible for any additional child support.

The minor children’s VA benefits were deposited into Andrade’s bank account.

Andrade testified that Cara complained to his mother or sister about money because

they took control of his bank account. Andrade later testified that he did not know Cara

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had monetary hardships. Cara attempted to contact the VA to have the minor children’s

benefits sent to her but was told Andrade would have to make the change. Andrade testified

that he thought he was not ordered to pay any support because of the VA benefits the minor

children were receiving. Cara testified that she has not received any of the minor children’s

VA benefits since December 2020. Andrade testified that he is receiving VA benefits but

that his benefits were cut to $167 a month because of his incarceration.

The order of divorce stated that Andrade is responsible for a portion of the minor

children’s medical expenses. Andrade testified that Cara never sent him any request for

payment of uncovered medical expenses and never requested that he pay for any medical

expenses. Andrade confirmed that he received $5,000 from the sale of the marital home and

noted that he works every day and makes sixty cents an hour. Andrade testified that if Cara

were to provide him with medical-expense requests, he could get those paid even though he

is incarcerated.

The circuit court found that since at least December 2020, Andrade had failed to

provide any financial support to his minor children. The circuit court specifically found the

following regarding Andrade’s support obligation under the terms of the parties’ order of

divorce:

It’s counsel for Mr. Andrade’s position that there was no child support
ordered, but that is not what the Court finds was the Order of the New Mexico court.
The order of the New Mexico court was that his child support obligation would be $
417.23 a month and that because the children were receiving the VA benefits of $880,
that there would be no additional amounts owed. But that certainly required those—
that $880 to be paid to the children.

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The order of divorce states:

20. Mother testified that Father receives VA disability benefits in the
amount of $1,861 per month.

21. Using the financial information set forth above, the Court prepared a
Worksheet A-Basic Visitation that shows Father’s guideline obligation for on-going child
support is $417.23.

22. Mother further testified that each of the Children receive $220.00 per
month as derivative benefits due to Father’s disability. Accordingly, the Children
receive a total of $880.00 per month, which exceeds Father’s guideline child support
obligation. Therefore, Father should not be required to pay additional amounts to
Mother for child support.

Andrade maintains that his duty of support was controlled by the New Mexico order

of divorce that waived chart-based support in favor of the VA benefits the minor children

had been receiving. Andrade notes that he was never accused of being in arrears because

there was no child-support amount stated in decree.

Additionally, the order of divorce addressed uncovered medical expenses for the

minor children:

23. The parties should divide the cost of uncovered medical expenses for the
Children in proportion to their incomes as shown on the child support worksheet.

Cara testified that there were uncovered medical expenses for the minor children. But she

also acknowledged that she had never provided those expenses to Andrade or requested any

reimbursement or payment. Andrade confirmed Cara had never contacted him about paying

for any medical expenses for the minor children.

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Accordingly, Andrade maintains that any finding of nonsupport of the minor

children is justified by the lack of any child support set out in the order of divorce and by

Cara’s failure to request any payment or reimbursement of uncovered medical expenses.

We disagree and note language from the circuit court that Andrade ignored and

conveniently omitted from his brief:

It’s counsel for Mr. Andrade’s position that there was no child support
ordered, but that is not what the Court finds was the order of the New Mexico court.
The order of the New Mexico court was that his child support obligation would be
417.23 a month and that because the children were receiving the VA benefits of 880,
that there would be no additional amounts owed. But that certainly required those -
- that 880 to be paid to the children. Again, there has not been a single dollar paid to
the children since at least December of 2020 by Mr. Andrade.

The record is clear—and the circuit court agreed—that Cara had not received any of

the minor children’s VA benefits, nor had she received any other support from Andrade for

the minor children since December of 2020.

Andrade does admit that the order of divorce imposed a duty on him to assist with

the children’s uncovered medical expenses. But regarding his claim that he had “justifiable

cause” not to abide by these terms of the order of divorce because Cara did not provide proof

of any of the expenses or request reimbursement, he once again blames Cara for his failure

to provide any support for his minor children and instead imposes a duty onto Cara that is

not supported by the terms of the parties’ order of divorce or elsewhere.

Andrade knew he had a duty to assist with uncovered medical expenses; yet, he failed

to provide any support. Andrade’s own testimony that Cara had spoken with his mother or

sister and was “angry about money” evidenced his knowledge that Cara needed assistance.

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Andrade’s duty to support his minor children is a personal one, and he cannot be excused

from this duty solely due to Cara’s action or inaction.

Arkansas appellate courts have heard arguments similar to Andrade’s and have not

been persuaded. In In re Adoption of A.M.C., 368 Ark. 369, 378, 246 S.W.3d 426, 432 (2007),

our supreme court held that imprisonment does not toll a parent’s responsibilities toward

his child. In Gordon, 2013 Ark. App. 352, at 6, 428 S.W.3d at 546, the circuit court found

that the appellant’s consent to adoption was unnecessary because of his failure to pay support

for eighteen months despite being imprisoned for ten of those months. This court affirmed,

holding the failure to pay support was unjustifiable. Id.

Another person’s conduct does not excuse a father’s duty to support his minor child

unless that conduct prevents him from performing his duty. Pender v. McKee, 266 Ark. 18,

31, 582 S.W.2d 929, 935 (1979). The parent must furnish the support and maintenance

himself, and the duty is a personal one; he may not rely on someone else to support his

children to avoid the statute’s provision permitting the adoption of his children without his

consent because he failed to support the children. Id.

Further, it is well settled that a parent has a legal obligation, independent of statute,

to support his minor child. This moral and legal duty remains regardless of the existence of

a support order. In re Adoption of A.M.P., 2021 Ark. 125, at 8, 623 S.W.3d 571, 576. In

Newkirk, supra, this court specifically held that incarceration did not excuse financially

supporting a child and that where an incarcerated father had money in his inmate bank

account, he had a duty to use a portion to support his children.

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It is undisputed that Andrade has not paid a single dollar to the minor children since

at least December 2020 despite his ability to do so. Considering the foregoing, we hold that

the circuit court’s finding that Andrade’s consent was unnecessary due to his failure to

support the minor children was not clearly erroneous.

Accordingly, we hold that the overwhelming and largely undisputed evidence

supports the circuit court’s finding that Andrade’s consent to the adoptions was not

required. Accordingly, we affirm.

Affirmed.

VIRDEN and MURPHY, JJ., agree.

Tim Cullen, for appellant.

Heimer Law, PLLC, by: Justin Heimer, for appellees.

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