Andre Jamal Holloway v. William Skyler Edward Carter

Cite as 2019 Ark. App. 330
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS
Perry
Date: 2022.07.21 12:19:14
DIVISION III
-05'00'
No. CV-19-8
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: June 5, 2019
ANDRE JAMAL HOLLOWAY

APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. THIRTEENTH DIVISION
[NO. 60PR-18-601]

WILLIAM SKYLER EDWARD HONORABLE W. MICHAEL REIF,
CARTER JUDGE

APPELLEE REVERSED AND REMANDED

PHILLIP T. WHITEAKER, Judge

Andre Holloway appeals the Pulaski County Circuit Court’s denial of his petition

for adoption on the grounds that the consent of the appellee, William Carter, was required.

On appeal, Andre argues that the court erred in denying his petition because William

unjustifiably failed to communicate with the child, K.C., and failed to provide for the care

and support of the child for a period of one year and that his consent to the adoption was

thus not required. We agree that the circuit court’s decision was clearly erroneous, and we

reverse and remand.
We recite the following fact summary as pertinent to our analysis and conclusion.

Andre is married to Barbara Holloway. 1 Barbara is the mother of K.C., who was born on

June 7, 2010. Although William was listed on the birth certificate as K.C.’s father, he and

Barbara were never married. Barbara has maintained custody of K.C. since his birth. William

has been largely uninvolved in K.C.’s life, and his lack of involvement was enhanced by his

incarceration in 2014 following multiple criminal convictions. William remained

incarcerated through the duration of the instant case.

Andre is a C-130 loadmaster in the United States Air Force. In 2018, he learned he

would be deployed to Germany. When the Holloways asked William to sign a passport

application for K.C. in early 2018, William refused. Shortly thereafter, Andre filed a petition

to adopt K.C. alleging that William’s consent to the adoption was not required under

Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 2015).

The circuit court held a hearing on Andre’s petition and considered testimony from

the Holloways, William, and Thomas Burns, general counsel for the Arkansas Department

of Correction. The circuit court ultimately entered an order denying the petition, finding

that Andre failed to meet his burden of proving that William’s consent to the adoption was

not required. Specifically, the court found that Andre had failed to present clear and

convincing evidence that William failed to provide support for the child for twelve

consecutive months. In addition, while the court found that the evidence showed that

1
Andre and Barbara began dating in 2016 and married in 2017. At the time of Andre
and Barbara’s marriage, K.C. was approximately seven years old.

2
William had not communicated with the child during his incarceration, such failure to

communicate was not without adequate excuse.

Andre timely appealed the circuit court’s denial of his adoption petition. He argues

that the circuit court erred in finding that William’s consent was required under Arkansas

Code Annotated section 9-9-207(a)(2). Under this statute, Andre had the burden of proving

by clear and convincing evidence that William’s consent to an adoption was not required

because K.C. was in the custody of another––Barbara––and that William for a period of at

least one year failed significantly without justifiable cause (i) to communicate with K.C. or

(ii) to provide for the care and support for K.C. as required by law or judicial decree. Andre,

who wishes to adopt K.C. without William’s consent, must prove that William’s consent is

unnecessary. In re Adoption of Lybrand, 329 Ark. 163, 169, 946 S.W.2d 946, 949 (1997).

There is a heavy burden placed on the party seeking to adopt a child without the consent

of a natural parent to prove the failure to communicate or the failure to support by clear

and convincing evidence. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93.

We review adoption proceedings de novo. In re Adoption of S.C.D., 358 Ark. 51,

186 S.W.3d 225 (2004); A.R. v. Brown, 103 Ark. App. 1, 285 S.W.3d 716 (2008). We give

due regard to the opportunity and superior position of the trial judge to determine the

credibility of witnesses, and we have stated that the personal observations of the trial judge

are entitled to even more weight in cases involving the welfare of a small child. Fox v. Nagle,

2011 Ark. App. 178, 381 S.W.3d 900. We will not reverse a circuit court’s finding regarding

whether consent is unnecessary due to failure to support or communicate with the child

unless it is clearly erroneous. Id. A finding is clearly erroneous when, although there is

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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.

In this case, we are left with a definite and firm conviction that the circuit court made

a mistake in its findings regarding William’s failure to communicate with K.C. 2 A failure to

communicate without justifiable cause is one that is voluntary, willful, arbitrary, and without

adequate excuse. In re Adoption of Lybrand, 329 Ark. at 169-70, 946 S.W.2d at 950. It is not

required that a parent fail totally in these obligations in order to fail significantly within the

meaning of the statutes. Id. at 170, 946 S.W.2d at 950.

Our de novo review reveals the following undisputed evidence presented in this case.

William has been incarcerated in the ADC since 2014. During that time, William did not

send K.C. cards or gifts for birthdays or Christmases. William acknowledged that he had

no proof that he communicated with K.C. during 2014 or 2016. Thomas Burns from the

ADC verified that between 2015 and 2018, William made one phone call to the telephone

number associated with the Holloways. Other testimony, however, revealed that during

this solitary phone call, William spoke only with Barbara and not with K.C. In fact,

William’s only communications were with the Holloways—never with K.C. himself.

Concerning physical contact or visits, William asserted that K.C. had visited him in the

penitentiary twice in 2015. Outside of those limited visits, however, William has not seen

2
Because we reverse and remand on the issue of failure to communicate, we need
not address Andre’s arguments regarding William’s failure to support. See Cowsert v. Bargar,
2014 Ark. App. 299, at 2 (“[O]nly one significant failure is required to render a parent’s
consent to adoption unnecessary.”).

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K.C. since 2016. This evidence is clear and convincing that William failed to communicate

with K.C. for a period of one year. 3

Here, the circuit court found that William’s “failure to communicate was not

without adequate excuse.” 4 The court acknowledged that William did not write to, or

otherwise communicate with, K.C. during his incarceration; it nonetheless found that his

failure to communicate was not without adequate excuse. The circuit court did not expressly

spell out its reasoning behind this conclusion; however, we glean from its order that it

believed the failure to communicate was based on tensions that arose between William and

the Holloways after William had refused to sign K.C.’s passport application. The court wrote

as follows:

In 2018, [Andre] wrote a letter to Mr. Carter which indicated that [Andre] would
help facilitate visitation between the minor child and Mr. Carter.

[Andre] is in the United States Air Force and will be stationed in Germany for three
years requiring a passport for the minor child. At the hearing, [Andre] testified that
he did not continue to facilitate visitation between Mr. Carter and the minor child
when Mr. Carter indicated that he would not sign the passport application until after
he received visitation with the minor child.

The court therefore found that William’s failure to communicate was not without adequate

excuse, and it thus could not find by clear and convincing evidence that William had failed

3
The one-year requirement applies to any one-year period between the date of the
child’s birth and the date the petition for adoption was filed and is not limited to the year
immediately preceding the filing of the adoption petition. Ray v. Sellers, 82 Ark. App. 530,
534, 120 S.W.3d 134, 137 (2003).
4
The circuit court entered an order that did not clearly articulate whether William
failed to communicate. We assume that the court did tacitly reach this conclusion because
it ultimately found that William’s “failure to communicate was not without adequate
excuse.”

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without justifiable cause to communicate with the minor child. For the following reasons,

we disagree.

First, assuming the reason enunciated by the circuit court rendered William’s failure

to communicate justifiable, 5 this “justifiable” reason did not arise until February 14, 2018,

the date on which Andre wrote to William asking him to sign K.C.’s passport application.

Andre’s petition for adoption was filed on March 27, 2018. Thus, William’s “justifiable

cause” existed for only a month and a half, yet his failure to communicate spanned several

years from 2014 through 2018. We find it clearly erroneous to conclude that an isolated

incident that occurred in 2018 can justify a failure to communicate in 2014, 2015, 2016,

and 2017.

Second, the circuit court’s finding is not supported by cases from either the supreme

court or our court. In Rodgers v. Rodgers, 2017 Ark. 182, 519 S.W.3d 324, the supreme

court found that the mother had failed without justifiable cause to communicate with her

child for more than a year, even though there was a court order preventing her from

contacting the child. The mother argued that she was prohibited by court order from

communicating. The supreme court disagreed, noting that the statute provides that it is 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.” Id. at 5, 519 S.W.3d at 328. An

inability to have visits did not excuse the mother because she “could have made telephone

5
We do not agree that this is a justifiable reason.

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calls to the children, sent birthday or Christmas cards, letters, or emails,” id., but she did not

do any of those things, and the court found her failure to communicate was unjustifiable.

Likewise, in In re Adoption of J.N., 2018 Ark. App. 467, 560 S.W.3d 806, this court

held that even though the mother may not have gone a full twelve months without seeing

her child, the circuit court did not err in finding that three or four visits between November

2013 and August 2016, and perhaps a few phone calls, was still a significant failure to

communicate. Id. at 9–10, 560 S.W.3d at 813. The similarities between J.N. and this case

are important. Admittedly, William may have seen K.C. occasionally at visitations at the

penitentiary, but these visits were sporadic and were all initiated by either Barbara or by

William’s wife; none were initiated by William himself.

We conclude that William’s lack of initiative and his lack of communication were

significant failures. “Failed significantly” does not mean “failed totally.” Id. at 9, 560 S.W.3d

806, 813 (citing Racine, supra). Thus, the circuit court here clearly erred in finding that

Andre failed to prove by clear and convincing evidence that William’s consent to the

adoption was required. We therefore reverse the circuit court’s finding that William’s

consent was required, and we remand for the court to determine whether the adoption is

in K.C.’s best interest.

Reversed and remanded.

KLAPPENBACH and VAUGHT, JJ., agree.

Owings Law Firm, by: Steven A. Owings and Tammy B. Gattis, for appellant.

One brief only.

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