French v. Hoelzeman
| Decision Date | 02 December 2020 |
| Docket Number | No. CV-19-894,CV-19-894 |
| Citation | 2020 Ark. App. 543,614 S.W.3d 850 |
| Parties | Darin FRENCH, Appellant v. Kenneth HOELZEMAN, Appellee |
| Court | Arkansas Court of Appeals |
Owings Law Firm, Little Rock, by: Steven A. Owings and Tammy B. Gattis, for appellant.
Gordon & Caruth, PLC, Morrilton, by: Jeannie L. Denniston, for appellee.
Darin French, the undisputed biological father of BF, SF1, DF, and SF2, did not provide financial support or communicate with his children for more than one year since he and his former wife, Jennifer Hoelzeman, were divorced in California in 2012. But were these failures legally justified given the circumstances? That is the question before us. Having reviewed the record and the law, we hold that they were justified. Consequently, we reverse the circuit court's decision to grant Kenneth Hoelzeman's petition to adopt and dismiss it.
We review adoption proceedings de novo, and the circuit court's decision will not be set aside unless it is clearly erroneous. Martini v. Price , 2016 Ark. 472, at 4, 507 S.W.3d 486, 489. A finding is clearly erroneous when, despite evidence to support it, we are left with the firm conviction that a mistake has been committed. Id. Due regard is given to the circuit court's superior position to judge any witness's credibility. Id.
Ark. Code Ann. § 9-9-207(a)(2) (Repl. 2015).
This appeal turns on that section.
"Failed significantly" does not mean "failed totally." In re Adoption of T.A.D. , 2019 Ark. App. 510, at 6, 588 S.W.3d 858, 862. If the petitioner meets the initial burden, then the nonconsenting parent(s) must show some justifiable reason for the failures. Holloway v. Carter , 2019 Ark. App. 330, at 3, 579 S.W.3d 188, 190. The ultimate burden of proof, however, remains with the petitioner—here that is Kenneth Hoelzeman—who must ultimately persuade the court that Darin's reasons for a lack of contact and support are not legally justified.
On this facet, our supreme court has written that 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. 163, 169–70, 946 S.W.2d 946, 950 (1997). When faced with having to decide whether a parent has presented justifiable cause, courts must assess and weigh the parent's reasons why he or she failed to communicate or support one or more children. See Newkirk v. Hankins , 2016 Ark. App. 186, at 10, 486 S.W.3d 827, 833 () (citing Zgleszewski v. Zgleszewski , 260 Ark. 629, 632, 542 S.W.2d 765, 768 (1976) ).
In July 2018, Kenneth filed a petition to adopt BF, SF1, DF, and SF2, with the consent of their biological mother, Jennifer Lynn Hoelzeman. Two children, BF and SF1, who are older than 12, said that they wanted Kenneth to adopt them. The petition did not allege that Darin's consent was not required under Ark. Code Ann. § 9-9-207(a)(2)(i). Instead, the petition alleged that Darin was in a federal prison, that he had provided no care and support to the minor children for the past three years, and that he had not contacted them for just as long.
The children's biological father, Darin, filed pro se objections to the petition. He admitted that he is the father of BF, SF1, DF, and SF2, and that he was married to their mother (Jennifer) when they were born. He also responded that the parties were divorced in California and that a California divorce decree allowed him to call the children, to write them, and to have them visit him in prison. But Jennifer had "abducted and/or carried away the children, hiding the whereabouts and has obstructed any and all attempts to have contact" with them.
Darin admitted in his pro se response that he had been incarcerated since 2009. And he pointed out that the California divorce judgment did not impose any support obligation on him. Attached to his pro se response was a 2013 Lassen County, California, court decree ordering that the children's last name be changed from Lynn (Jennifer's maiden name) to French (Darin's last name). Further, attached as separate exhibits to Darin's pro se response, were the following:
Shortly after Darin responded to the petition, he engaged counsel to represent him.
The circuit court convened a hearing on Kenneth's petition in July 2019. Approximately one week before the hearing convened and after having worked behind the scenes for some time, Darin's counsel moved to continue the hearing because counsel had been unable to secure Darin's transportation from a federal prison in Texas to the hearing in Conway County, Arkansas. Darin's motion alleged that for several weeks, his lawyer had tried to contact legal counsel for the prison and the United States Attorney for the Eastern District of Texas to learn how this could be done and that she had received an email the day before that all transfers must be cleared through regional counsel and the prison warden. Counsel had apparently learned that to secure Darin's appearance, the circuit court would have had to issue a "Writ of Habeas Corpus Ad Testificandum"; then other agencies would have had to approve the transfer.
At the start of the consent hearing, Darin's counsel proffered testimony from paralegal Josh Gonzalez, who detailed calls he had made and emails he had sent to the federal prison since April 2019 with no response. Josh said that he had called nearly every day in June, for example. For reasons that we will not delve deeply into here, the court denied the continuance request; and it rejected counsel's request to allow Darin to appear by telephone during the hearing.
Speaking of absent witnesses, the record seems to indicate that Darin's parents (the children's paternal grandparents) tried to intervene in this case; but there is no order either denying or granting the intervention. The record more clearly shows that Darin's attorney told the court that Darin's mother The court confirmed that the children's grandmother was currently in California then denied her request for a telephonic appearance. The stated reason: "Grandparents are derivative of the parent ... [s]o that request will be denied here." Darin's attorney explained that Darin's parents were
The legal irony is that the court, having disallowed the grandparents’ participation, later held against Darin what the grandparents may or may not have known about Jennifer's whereabouts. The dissent sees Jennifer's words about what the grandparents did or did not do, what they supposedly did or did not know, as a key to affirming the circuit court's decision. But neither the circuit court nor this one has ever learned firsthand what the grandparents knew or did not know. That uncertainty includes whether they passed any knowledge of the children's whereabouts to Darin in some manner. The uncertainty was caused by the court's decision to deny Darin's request to participate by telephone and the court's decision to deny the children's grandparents an opportunity to speak.
But Kenneth was permitted to testify, as were the children and Jennifer. When Jennifer testified, she said that that she moved to Morrilton, Arkansas, with the girls in April 2014 while on pretrial release—with federal mail and wire-fraud charges pending. (According to Jennifer's testimony, in August 2014, a federal court sitting in Reno, Nevada sentenced her to five years’ probation and ordered her to pay $200,000 in restitution.) She said that Darin's parents attended her federal sentencing hearing when it was held in Nevada. Jennifer told the circuit court in this case that she informed the federal judge that she was living in Arkansas with her children and showed a video of the four girls. According to Jennifer, "everybody knew" that she was in Arkansas and that her supervision had been transferred to Arkansas. But the "everybody" referred to was not permitted to appear and testify, whether in person or by telephone.
Jennifer admitted that she received a FedEx envelope from Darin's mother in 2016. Inside was a request that the girls write to their great-grandmother. Jennifer said that she and the girls did not respond. She agreed, when asked, that she did not "ever get anything at all, cards or letters or packages from Darin French." Jennifer also said that Darin had sent no money and had not contacted the girls for the last three years. She did not say that he knew where to send money or anything else (like gifts, etc.). Nor...
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