In Re Adoption of B.R.

Cite as 2020 Ark. App. 115
Reason: I attest to the accuracy
and integrity of this document
ARKANSAS COURT OF APPEALS
Date: 2021-06-21 13:41:05
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DIVISION II
No. CV-19-694

IN THE MATTER OF THE
Opinion Delivered: February 19, 2020
ADOPTION OF B.R.

RUSTY RAITERI APPEAL FROM THE CLEBURNE
APPELLANT COUNTY CIRCUIT COURT
[NO. 12PR-18-56]

V.
HONORABLE DON MCSPADDEN,
JUDGE
CLAYTON NOWAK
APPELLEE REVERSED AND DISMISSED

RAYMOND R. ABRAMSON, Judge

Rusty Raiteri appeals the adoption decree granting an adoption petition filed by his

former wife’s current spouse, Clayton Nowak, concerning his daughter, B.R. On appeal,

Rusty argues that the circuit court erred by finding that (1) his consent to the adoption

was not required and (2) the adoption was in B.R.’s best interest. We reverse and dismiss.1

On April 17, 2018, Clayton filed a petition for adoption of B.R. He stated that

B.R. was born on June 8, 2011, and that he married B.R.’s mother, Ashley Nowak, on

October 29, 2016. He asserted that Rusty’s consent to the adoption was not required

because Rusty had failed significantly and without justifiable cause to communicate with

or provide for the care and support of B.R. for at least one year. On May 17, 2018, Rusty

contested the adoption.

1
This is a one-brief appeal as Clayton filed no response.
The court held a hearing on March 19, 2019.2 Ashley testified that she and Rusty

divorced in February or March 2013. She explained that during their marriage, she had

witnessed Rusty abuse drugs, which led to their divorce. She testified that their divorce

decree granted Rusty visitation rights and that he exercised his visitation rights until

March 2017. She stated that at that time, a friend informed her that Rusty had been using

drugs, so she asked Rusty to take a drug test. Ashley testified that Rusty refused to take a

test and that he did not see B.R. from that point forward. Later, on August 30, 2017, a

circuit court ordered Rusty to pass a drug test before his visitation with B.R. could

resume. Ashley also noted that in March 2018, the court suspended Rusty’s visitation

rights but informed Rusty that he could petition for reinstatement of those rights at the

instant adoption hearing. She further testified that Rusty had filed a contempt motion

against her alleging that she had prevented him from visiting B.R. but that the court had

denied it.

Ashley further testified that Rusty’s child-support payments had been sporadic since

their divorce in 2013. She stated that from December 2015 through November 2017,

Rusty made only four payments. Specifically, the child-support records show that Rusty

made payments on December 9, 2015; March 15, March 31, August 2, 2016; and March

29, 2017. He resumed paying on November 16, 2017. She testified that in March 2018,

he made a lump-sum payment for his arrears and that he is now current. She testified that

Rusty’s parents and grandparents had sent B.R. gifts, but she denied that Rusty had sent

2
The court originally scheduled the hearing for June 2018, but the hearing was
continued.

2
anything to B.R. She also acknowledged that Rusty had attempted to contact her on her

cell phone and that she had sent him B.R.’s Social Security number in November 2017

for insurance purposes.

As to her relationship with Clayton, Ashley stated that she married him in 2016 and

that they have two sons. She further stated that Clayton helps her care for B.R. and that

they have a father-daughter bond. She noted that B.R. calls Clayton “daddy.”

Clayton testified and requested that the court grant his petition to adopt B.R. He

stated that he is an independent contractor for a flooring company and has the facilities

and resources to care for her. He testified that he regularly takes B.R. to school and picks

her up from her after-school activities.

Rusty testified that he lives in Mississippi with his grandparents and that he works

in an office position at Estes Express Trucklines. He noted that he has been employed

there for almost two years but that since he and Ashley divorced in 2013, he had been

intermittently employed. He specifically noted that he had been unemployed for several

months in 2016 or 2017 due to a back injury. He stated that in March 2018, he made a

lump-sum child-support payment using a loan from his grandmother and that he is now

current on his child-support arrears. He testified that he has also been paying for B.R.’s

health insurance for about a year and a half.

Rusty testified that prior to March 2017, he regularly exercised visitation with B.R.

He stated that he lived in Memphis and that he had traveled to Heber Springs to pick her

up. Rusty acknowledged Ashley’s demand for a drug test in March 2017, and he stated

that he eventually produced a clean drug screen in February or March 2018 after the

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court’s order. He stated that he tried to contact Ashley on her cell phone from June 2017

through May 2018, but she ignored his calls. He offered his AT&T call logs, which show

that Rusty contacted Ashley nearly once a month from June 2017 through the filing of

the adoption petition.

Rusty testified that he has now been opioid free for a year and six months. He

noted that he has a prescription for Suboxone and attends Narcotics Anonymous meetings

three times a week. He further testified that he regularly takes drug tests for his

employment and has not failed a test.

Following the hearing, on May 10, 2019, the court entered an order granting

Clayton’s petition for adoption of B.R. The court found that Rusty’s consent to the

adoption was not required because he had failed significantly and without justifiable cause

to communicate with or provide for the care and support of B.R. for at least one year.

The court further found that it was in B.R.’s best interest to grant the adoption. In the

order, the court specifically found Rusty not credible. This appeal followed.

We review adoption proceedings de novo on the record. Newkirk v. Hankins, 2016

Ark. App. 186, 486 S.W.3d 827. 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 is unnecessary. Id. A circuit court’s finding that consent

is unnecessary due to a failure to support or communicate with the child will not be

reversed unless clearly erroneous. 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. In cases involving minor children,

4
the circuit court must utilize to the fullest extent all its power of perception in evaluating

the witnesses, their testimony, and the children’s best interest. Id. Because the appellate

court has no such opportunity, the superior position, ability, and opportunity of the

circuit court to observe the parties are afforded their greatest weight in cases involving

minor children. Id.

On appeal, Rusty argues that the circuit court erred by finding that his consent to

the adoption was not required because he failed significantly and without justifiable cause

to communicate with or provide care and support for B.R.

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

parent’s 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.

Justifiable cause means that the significant failure must be willful in the sense of being

voluntary and intentional; it must appear that the parent acted arbitrarily and without

just cause or adequate excuse. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983).

“Failed significantly” does not mean “failed totally.” Pender v. McKee, 266 Ark. 18, 28,

582 S.W.2d 929, 934 (1979). It only means that the failure must be significant, as

contrasted with an insignificant failure. Id. It denotes a failure that is meaningful or

important. Id. 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, 120 S.W.3d 134 (2003).

5
We first address Rusty’s argument concerning the court’s finding that he failed to

communicate with B.R. for one year. He argues that the evidence shows that Ashley

unilaterally barred him from visiting B.R. in March 2017, and he points out that he

regularly exercised his visitation rights until that time. He further points out that he called

Ashley and sent her messages after she barred his visitations, but she did not respond.

We agree. Based on the evidence presented below, we simply cannot say that

Rusty failed significantly and without justifiable cause to communicate with B.R. for one

year. We acknowledge that the undisputed evidence shows that Rusty did not

communicate with B.R. from March 2017 through the filing of the adoption petition in

April 2018. However, Ashley barred his visitations without a court order from March

2017 through August 2017. Further, after the court ordered Rusty to take a drug test in

order to resume visitation, he asked the court to hold Ashley in contempt for withholding

visitation. Moreover, Rusty’s call records show that from June 2017 through April 2018

Rusty contacted Ashley approximately once a month. B.R. was six years old during this

one-year period. Thus, Ashley had complete control over the child’s communication. We

cannot say that these circumstances constitute a significant failure to communicate without

justifiable cause, and we hold that the circuit court erred in so finding.3

In reaching this conclusion, we are mindful of our supreme court’s declaration that

the law is solicitous toward maintaining the integrity of the natural relation of
parent and child; and in adversary proceedings in adoption, where the absolute
severance of that relation is sought, without the consent and against the protest of
the parent, the inclination of the courts, as the law contemplates it should be, is in
favor of maintaining the natural relation.
3
We recognize that the circuit court specifically found Rusty not credible, but our
holding is based on Ashley’s testimony and the documentary evidence.

6
Fox v. Nagle, 2011 Ark. App. 178, at 14, 381 S.W.3d 900, 907 (quoting In re Adoption of

Glover, 288 Ark. 59, 62, 702 S.W.2d 12, 13–14 (1986)).

Rusty also argues that the circuit court erred in finding that his consent to the

adoption was not required because he failed significantly and without justifiable cause to

support B.R. for one year. He acknowledges that there were gaps in his child-support

payments, but he asserts that he never ceased paying child support for a full year. He

further points out that he paid his child-support arrears before the adoption petition was

filed and that he now regularly pays support.

We again agree with Rusty that the circuit court erred in finding that he failed

significantly and without justifiable cause to support B.R. for a period of one year. The

circuit court found that Rusty had failed significantly to pay support between December

2015 and March 2017. The child-support records show that Rusty made payments on

December 9, 2015; March 15, March 31, August 2, 2016; and March 29, 2017. He then

resumed making payments on November 16, 2017. Thus, Rusty failed to make some

payments; however, we cannot conclude that these gaps constitute a significant failure to

provide support for B.R. for one year warranting termination of Rusty’s parental rights.

We further point out that after Rusty resumed making payments in November 2017, he

continued to make payments through the filing of the adoption petition, and he paid his

arrears in full prior to the filing of the petition. Our supreme court recently stated that

[a]lthough we have held previously that the one-year period referenced in section
9-9-207 can be any one-year period and is not required to be the one-year period
immediately preceding the filing of the adoption petition, we believe that circuit
courts should consider the parent’s conduct, particularly in the period before the
filing of the petition, in determining whether the parent’s consent to an adoption
should be required.

7
Martini v. Price, 2016 Ark. 472, at 6, 507 S.W.3d 486, 490. Under these facts, we hold that

the circuit court again erred in finding that Rusty failed significantly and without

justifiable cause to pay support for one year.

Accordingly, because the circuit court clearly erred in finding that Rusty failed

significantly and without justifiable cause to communicate with and to provide care and

support for B.R., the court erred in finding that his consent to the adoption was not

required. We therefore reverse and dismiss. Our holding renders moot Rusty’s second

argument that the circuit court erred in finding that the adoption was in B.R.’s best

interest. See Fox, 2011 Ark. App. 178, 381 S.W.3d 900.

Reversed and dismissed.

GLADWIN and BROWN, JJ., agree.

Turnage Law Firm, P.A., by: Christopher C. Turnage; and Chrestman Group, PLLC,

by: Keith L. Chrestman, for appellant.

One brief only.

8