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2016 Ark. 472
SUPREME COURT OF ARKANSAS
No. CV-15-1045
Opinion Delivered: December 22, 2016
ANTONIO MARTINI
APPELLANT
V. APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
CHRISTOPHER PRICE [23PR-2013-441]
APPELLEE
HONORABLE H.G. FOSTER,
JUDGE
AFFIRMED IN PART; REVERSED
AND DISMISSED IN PART; COURT
OF APPEALS OPINION VACATED.
ROBIN F. WYNNE, Associate Justice
Antonio Martini appeals from a final decree of adoption granting an adoption petition
filed by his ex-wife’s current spouse, Christopher Price, in which Price sought to adopt
Martini’s daughter and former stepson without Martini’s consent. The Faulkner County
Circuit Court found that appellant’s consent to the adoptions was not necessary because he
had failed for a period of at least one year without justifiable cause to communicate with the
children. Appellant argues that the circuit court erred by finding that his consent was not
necessary and by finding that it was in his former stepson’s best interest to be adopted by his
ex-wife’s current spouse. We accepted this case on a petition for review of a decision by
our court of appeals, wherein the court of appeals affirmed the decree by a vote of 5-4.
Thus, our jurisdiction lies pursuant to Rule 1-2(e) of the Rules of the Arkansas Supreme
Court and Court of Appeals. We affirm as to appellant’s former stepson and reverse and
dismiss as to appellant’s daughter.
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Appellant’s former stepson, G.L. was born to Renita Lemmonds (now Price), in
2004. No father is listed on the birth certificate. Appellant entered the lives of G.L. and
Mrs. Price when G.L. was eleven months old. Appellant and Mrs. Price married in 2006
and had a daughter, E.M., in 2007. In December 2009, while the family was living in
Washington State, appellant was arrested following an incident of domestic violence against
Mrs. Price. Mrs. Price immediately left Washington with the children, came to Arkansas
where her mother lived and where the couple had lived previously, and obtained an order
of protection barring appellant from having either direct or indirect contact with her for
one year. Appellant pled guilty to domestic-violence-related charges in March 2010, for
which he received a two-year suspended sentence and was ordered to enter a domestic-
violence treatment program. A second order of protection was entered that barred appellant
from contact with Mrs. Price until March 25, 2012. Neither of the orders of protection
barred appellant from contact with the children.
In 2012, Mrs. Price filed a complaint for divorce against appellant. A decree of
divorce was entered on October 26, 2012. The decree grants custody of E.M. to Mrs.
Price, with appellant being awarded reasonable privileges of visitation. The decree also
states that appellant had acted in loco parentis to G.L. and that appellant would have
reasonable visitation with him as well. Pursuant to the decree, visitation was to be
“graduated initially” and supervised by the children’s therapist. After six months, the parties
were to review their progress and determine a more permanent visitation schedule according
to the recommendation of the therapist. Appellant had two supervised visits with the
children in 2012 consisting of one in November and another in December. He attended
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three family-therapy sessions with Mrs. Price and the children in 2013 on January 16,
February 5, and March 26. After the March 2013 visit, the therapist stated in a report that
she did not believe that additional family sessions would be in the children’s best interest
due to appellant’s behavior during the sessions.
Mrs. Price married appellee in July 2013. On November 6, 2013, appellee filed an
amended petition for adoption of G.L. and E.M.1 The petition alleges that appellant’s
consent to the adoptions is not required because appellant failed for a period of at least one
year without justifiable cause to communicate with the children. Appellant objected to the
adoptions, asserting that there existed justifiable cause for any lack of communication with
the children.
At the hearing on the adoption petition, there was testimony that Mrs. Price created
an email account for the children and provided the email address to appellant. Appellant
emailed the children three times in the fall of 2010: twice in response to emails from the
children and once to wish E.M. a happy birthday. Appellant testified that he ceased emailing
the children after Mrs. Price apparently had a heated exchange with members of the
probation office supervising appellant, which led to concern by appellant that she was using
the email account to attempt to set him up. Appellant was never notified that Mrs. Price
had taken the children to Arkansas, nor was he made aware of where Mrs. Price and the
children were living. Mrs. Price also provided appellant with a phone number for his
domestic-violence counselor to call regarding visitation with the children and to which no
call was made. Mrs. Price also sent him correspondence through the mail in 2010 that had
1
Appellee had filed a petition on August 20, 2013, that referenced only E.M.
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the address of the Arkansas Department of Human Services office where she worked listed
as the return address. However, appellant testified that he thought the office acted as a go-
between and had no way of knowing that Mrs. Price worked there. Appellant looked into
setting up visitation with the children over Skype but was informed by both an attorney
and his probation officer that this posed a risk of violating the no-contact order. Following
the hearing, the circuit court entered a decree in which it found that appellant’s consent to
the adoptions was not necessary and granted the amended petition. This appeal followed.
We review probate proceedings de novo, but we will not reverse the decision of the
probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215,
45 S.W.3d 359
(2001). A finding is clearly erroneous when, despite evidence to support it, we are left on
the evidence with the firm conviction that a mistake has been committed. Morningstar v.
Bush,
2011 Ark. 350,
383 S.W.3d 840. When reviewing the proceedings, we give due
regard to the opportunity and superior position of the probate judge to determine the
credibility of the witnesses.
Id.
Appellant first argues that the circuit court erred in finding that his consent to the
adoptions was not required. 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
(Repl. 2009). Adoption statutes are strictly construed, and a person who wishes to adopt a
child without the consent of the parent must prove that consent is unnecessary by clear and
convincing evidence. In re Adoption of Lybrand,
329 Ark. 163,
946 S.W.2d 946 (1997). A
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“failure to communicate without justifiable cause” is one that is “voluntary, willful,
arbitrary, and without adequate excuse.”
Id. at 169-70 (quoting In re K.F.H. & K.F.H.,
311 Ark. 416, 421,
844 S.W.2d 343, 346 (1993)). The issue of whether justifiable cause
existed is factual and turns largely on the credibility of the witnesses.
Id. It is not required
that a parent fail totally in his or her obligations in order 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.
We hold that the circuit court’s finding that appellant’s consent was not required for
appellee to adopt E.M. is clearly erroneous. Appellant contended before the circuit court
that the orders of protection hindered him from having contact with the children. Appellant
was subject to two orders of protection that barred him from “any contact whatsoever, in
person or through others, by phone, mail, or any means, directly or indirectly” with Mrs.
Price until March 2012. While the orders of protection were in effect, the children were
too young to initiate contact with appellant on their own. All contact between appellant
and the children would, in some fashion, have to go through Mrs. Price. Given that the
orders of protection barred indirect contact by any means with Mrs. Price, it was reasonable
for appellant to be concerned that even contact aimed at facilitating contact with the
children could constitute a violation of the protective order that would expose him to a
period of incarceration. Appellant contacted the children over email, but Mrs. Price’s
confrontational phone conversations with the probation office induced him to cease that
activity. Appellant inquired into video-phone visitation with the children over Skype, but
was advised that this ran a risk of violating the protective order.
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There is also no indication that appellant knew where the children were located prior
to Mrs. Price filing for divorce. Once the divorce decree was entered, and appellant was
allowed visitation with the children, he exercised that visitation to the fullest extent he was
allowed, although he lived out of state and his attendance at the visits required extensive
travel on his part.2 Although 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.
The obstacles to appellant’s communication with the children prior to March 2012
were precipitated by a domestic disturbance, but obstacles they remained. Once those
obstacles were removed, appellant took as much action to have contact with the children as
he could under the divorce decree, lending credence to a conclusion that the earlier lack of
contact was a result of the no-contact order.3 Despite appellant’s efforts to visit the children
and reestablish his relationship with them, the children’s therapist recommended that his
visitation with the children cease4 and the period during which the obstacles were in place
2
When visitation commenced, appellant lived in Katy, Texas. He subsequently
moved to Wichita, Kansas.
3
We note that the decree gives no indication that the circuit court found appellant’s
testimony at the hearing on the petition not to be credible.
4
The issue of appellant’s visitation with the children is not before us. Accordingly,
nothing in this opinion should be taken as a comment on whether appellant should be
allowed visitation under the divorce decree. Here, we are concerned only with the decree
of adoption.
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was then used to permanently terminate his relationship with his biological child. Under
these facts, the termination of his relationship with his child without his consent was not
warranted. The portion of the circuit court’s order finding that appellant’s consent to the
adoption of E.M. was not required and granting appellee’s petition to adopt E.M. is hereby
reversed and dismissed.
Appellant also challenges the granting of appellee’s petition to adopt G.L. Appellant
is not G.L.’s parent. Although the divorce decree states that appellant acted in loco parentis
to G.L., the consent of one acting in loco parentis is not required under section 9-9-207.
As such, appellant has no right to withhold consent to G.L.’s adoption. Appellant contends
that the circuit court erred in failing to consider whether the adoption of G.L. by appellee
would be in G.L.’s best interest if the adoption of E.M. were to be reversed. There is no
indication from the record that the status of E.M.’s adoption has any bearing on G.L.’s best
interest. Appellant complains that the children will have two different fathers with parental
rights and obligations. However, he did not adopt G.L. while he was married to Mrs. Price
and cannot be heard to complain now that her current spouse wishes to do so. The circuit
court’s finding that adoption by appellee is in G.L.’s best interest is not clearly erroneous
and is affirmed.
Affirmed in part; reversed and dismissed in part; court of appeals opinion vacated.
GOODSON, J., dissents.
COURTNEY HUDSON GOODSON, Justice, concurring in part and dissenting
in part. I agree with the majority’s rejection of Antonio’s argument with respect to G.L.
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However, the proper application of our standard of review requires an affirmance of the
circuit court’s finding that Antonio’s consent to the adoption is not required because he
failed significantly and without justifiable cause to communicate with his daughter E.M.
Therefore, I respectfully dissent from the majority’s reversal on this point.
Arkansas Code Annotated section 9-9-207(a)(2)(i) (Repl. 2015) provides that
“[c]onsent 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 to
communicate with the child.” It is not required that a parent fail “totally” in these
obligations in order to fail “significantly” within the meaning of the statute. Lucas v. Jones,
2012 Ark. 365,
423 S.W.3d 580. It denotes a failure that is meaningful or important. Racine
v. Nelson,
2011 Ark. 50,
378 S.W.3d 93.
A circuit court’s finding that consent is unnecessary because of a failure to support or
communicate with the child will not be reversed unless clearly erroneous. In re Adoption of
A.M.C., 368 Ark. 369,
246 S.W.3d 426 (2007). “We view the issue of justifiable cause as
factual but one that largely is determined on the basis of the credibility of the witnesses.
This court gives great weight to a trial judge’s personal observations when the welfare of
young children is involved.” In re Adoption of Lybrand,
329 Ark. 163, 169,
946 S.W.2d 946,
950 (1997) (quoting In re K.F.H.,
311 Ark. 416, 423,
844 S.W.2d 343, 347 (1993)).
Further, we have stated repeatedly that the circuit court is in a far superior position to
observe the parties before it and to judge the credibility of the witnesses. In re Adoption of
M.K.C.,
2009 Ark. 114,
313 S.W.3d 513.
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In this case, it is undisputed that Antonio did not see the children at all between
December 2009 when he and Renita Price separated, and October 2012 when they were
divorced. During this near three-year period, Antonio sent the children a grand total of
three short emails in August and September 2010 after Renita twice invited him to establish
contact with them and only after the children had emailed him. Thus, the question is
whether Antonio’s significant failure to communicate with the children is justified. On
appeal, Antonio contends that his failure to establish contact with the children is excused
because he was laboring under a no-contact order and because he did not know where the
children were located.
The protective order prohibited Antonio from having any contact with Renita, but
the order did not cover the children. The record reflects that Renita provided Antonio
with an email address so that he could communicate with the children in August 2010. He
also received a letter in August 2010 with a return address of a local office of the Arkansas
Department of Human Services, and Antonio admitted that he thought that the agency
acted as a “go-between” for communication. Renita also provided Antonio a phone
number for his counselor to call for the purpose of setting up visitation with the children.
Thus, the evidence demonstrates that Antonio was able to establish contact with the children
without violating the no-contact order. However, other than the three emails, he did not
avail himself of those opportunities.
In holding that Antonio’s failure to communicate with the children is excused based
on the existence of the protective order, the majority shares Antonio’s skepticism of Renita’s
overtures asking him to reach out to the children and his notion that she was “setting him
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up.” It also accepts at face value Antonio’s testimony that his fears were corroborated by
confrontational phone calls that Antonio alleged Renita had made to probation officers.
However, the circuit court was not required to believe Antonio’s assertion that he thought
he was being set up or that the alleged phone calls even took place. On this point, the
circuit court also heard the testimony of Renita. She testified that she reached out to
Antonio, extended an olive branch to him, and did everything in her power to help him
establish a healthy and meaningful relationship with the children. Renita also read aloud to
the court the August 2010 letter she had written to Antonio updating him on the progress
of the children; informing him that the children often asked about him and that they missed
him and loved him; stating her belief that it would be good for the children to communicate
with him; and inviting him to begin talking to them on a regular basis by phone, email, or
Skype. Renita also stated in the letter that “I just want our children to know they have two
parents who have – who love them both very much. The current No Contact Order bars
you from contacting me. It does not prohibit me from contacting you or prevent you from
talking to our children.” Further, in her testimony, Renita stated that she had received
advice from attorneys that Antonio had a right to hire an attorney to establish visitation
because he retained parental rights, and she noted that his defense counsel in Washington
had contacted her on Antonio’s behalf. The circuit court was in a far superior position to
assess Renita’s motives for seeking to initiate contact between Antonio and the children and
could reject Antonio’s alleged belief that he was being set up.
In addition, the majority gives full credence to Antonio’s testimony that he consulted
an attorney and his probation officer about establishing visitation over Skype and “was
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advised that this ran a risk of violating the protective order.” Once again, the circuit court
could discount the testimony that this was the advice he received. Instead, the circuit court
could accept, and obviously did find credible, Antonio’s testimony that his probation officer
told him that he would not be in violation of the protective order if he kept the conversation
with the children about the children. This testimony, as well as Renita’s testimony on this
subject, certainly casts doubt on Antonio’s claim that the no-contact order prevented him
from communicating with the children.
Applying the proper standard of review, it cannot be said that the circuit court’s
finding is clearly erroneous. In such matters we must defer to the apparent credibility
determinations made by the circuit court. The majority falls into error by ignoring our
standards and reaches its result by according more credence to Antonio’s testimony than it
was given by the circuit court. The protective order did not prohibit Antonio from
contacting the children. He had addresses where he could have sent cards or messages to
them. Antonio had the ability to hire an attorney to establish visitation without violating
the protective order. As Renita offered, he could have utilized his counselor to arrange
visits with the children. I would affirm the circuit court’s ruling that the no-contact order
did not justify his failure to communicate with the children for almost three years.
I also take issue with the majority’s finding that Renita’s decision to withhold her
precise location from Antonio hindered his ability to maintain contact with the children.
This conclusion wholly disregards the evidence presented at the hearing. The record reveals
that Antonio and Renita married in Arkansas and lived here following the wedding. Renita
testified that her mother had lived in the same home in Arkansas for twenty-five years, and
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she estimated that they had visited her twenty or more times during their marriage. It is
also significant that Antonio received a letter with a return address of a local agency in
Arkansas. On this record, Antonio’s claim that he had no way of knowing the children’s
whereabouts is simply untenable. From the information available to Antonio pointing to a
location in Arkansas and the open line of communication extended by Renita as discussed
in the first point, the circuit court could easily dismiss Antonio’s contention that not
knowing the children’s precise location prevented him from communicating with them.
Because the circuit court’s finding is not clearly erroneous, I would affirm on this point as
well.
On this issue, the majority emphasizes the fact that Antonio exercised visitation
following the divorce and that his post-divorce conduct should be considered in
determining whether his consent to the adoption should be required. I can agree with that
statement for the purposes of this appeal, as Antonio’s character was on full display during
his supervised visitation. After the March session, the therapist recommended that it was in
the children’s best interest to discontinue Antonio’s visits with the children because of his
behavior. According to the therapist’s notes, Antonio was confrontational with Renita
during the sessions which upset the children, who remembered the incidents of domestic
abuse perpetrated by Antonio against Renita. E.M. expressed fear of Antonio and stated
that she did not wish to visit him at his house. In one session, Antonio accused Renita of
kidnapping the children. On another occasion, E.M. innocently mentioned Price, and
Antonio told the children that Price could not be their father because he was married to
someone else. When the therapist advised Antonio that his comment was not appropriate,
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Antonio responded by saying, “This is my time with the children and I can say anything I
want.” This caused G.L. to begin banging his head on the table. The therapist commented
that Antonio was antagonistic and that his statements were not uplifting, not encouraging,
and not appropriate in front of the children. Following one visitation, Antonio confronted
the therapist in the parking lot as she was walking to her car. She stated that his actions
were “threatening and intimidating.” The therapist also advised that Antonio should seek
help from another counselor to deal with his issues.
What is most disturbing about the majority’s opinion is that Antonio is portrayed as
a victim. The majority blames the no-contact order and Renita’s decision to remove herself
and the children from an atmosphere of abuse to excuse Antonio’s failure to communicate
with the children over a three-year period. The moral of the opinion is that one may
commit acts of domestic abuse for which a protective order is necessary, and yet gain
exoneration for not contacting one’s children without lifting a finger to take advantage of
offers to establish communication or to pursue other reasonable means to maintain contact
with the children which do not involve the violation of the no-contact order. The message
sent by this opinion is beyond disappointing. Antonio is not a blameless victim. He was
not without recourse to initiate contact with the children. Any obstacles Antonio faced
were not insurmountable. The circuit court’s decision should be affirmed.
Tripcony, May & Assoc., by: James L. Tripcony, for appellant.
Kamps & Stotts, PLLC, by: Adrienne M. Griffis, for appellee.
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