Plymale v. Rogers (In re A.M.P.)
| Decision Date | 03 June 2021 |
| Docket Number | No. CV-20-174,CV-20-174 |
| Citation | 2021 Ark. 125,623 S.W.3d 571 |
| Parties | (In the MATTER OF the ADOPTION OF A.M.P. and A.A.P.) Brince Plymale, Appellant v. Jeremy Alan Rogers and Brandie Nichole Rogers, Appellees |
| Court | Arkansas Supreme Court |
Gean, Gean & Gean, Attorneys at Law, Fort Smith, by: David Charles Gean, for appellant.
Michael Hamby and Robert S. Tschiemer, Mayflower, for appellees.
Consent lies at the foundation of Arkansas's adoption statutes. A petition to adopt a minor generally cannot be granted without written consent of the natural parents unless the right to consent has been relinquished or otherwise excused by statute. As relevant here, consent is not required of "a parent of a child in the custody of another, if the parent for a period of at least (1) year has failed significantly without justifiable cause ... 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)(ii). The circuit court determined that Brince Plymale's consent was not required under this provision in the adoption of his two minor children to their natural mother and her husband, Brandie and Jeremy Rogers. The circuit court's adoption order is reversed and dismissed.
In February 2015, Brince and Brandie divorced after nearly fifteen years of marriage. The relationship produced a son, who has reached the age of majority and is not part of this proceeding, and two minor daughters: A.M.P. and A.A.P.1 Nearly two years after the divorce, Brandie married Jeremy Rogers. This appeal arose from the Rogerses’ November 2018 petition seeking to adopt A.M.P. and A.A.P. They alleged that Brince failed significantly to financially support the children for a period of at least one year and thus his consent was not required under Arkansas Code Annotated section 9-9-207(a)(2)(ii). Notably, they did not allege that Brince failed to provide care for the children during any one-year period. They also claimed adoption was in the children's best interest due to a "very rocky relationship" with Brince. Both children consented to the adoption. In response, Brince asserted that his consent was necessary, objected to the adoption, and argued it was not in the children's best interest.
Following a bench trial, the circuit court granted the adoption petition in October 2019. It determined that Brince's consent was not required and that adoption was in the children's best interest. In reaching its decision, the court relied on the parties’ testimony and orders from Brince and Brandie's divorce and custody proceedings.2 It found that Brandie was a credible witness but that Brince was not. Because Brince visited the children a sufficient number of times since the divorce, the circuit court found that he did not fail significantly without justifiable cause to communicate with the children for a period of at least one year. See Ark. Code Ann. § 9-9-207(a)(2)(i). The court's consent decision centered solely on section 9-9-207(a)(2)(ii) ’s "care and support" requirement.
In analyzing whether Brince failed significantly without justifiable cause to provide for the care and support of the children, the court viewed Brince's actions during two distinct periods. The first period began with the February 2015 divorce decree and ended in September 2016. As part of the decree, the parties were given joint custody of the children. Brandie was named the primary custodian and kept the children during the week. Brince was awarded—and regularly exercised—specified visitation each weekend. The decree provided that "[i]n contemplation of spending an equal amount of time with the children, neither party shall be required to pay child support at this time." They were ordered to equally share the children's expenses and were responsible for half of any healthcare expenses not covered by insurance. Joint custody was terminated on September 7, 2016. At that time, the trial court entered an ex parte emergency order suspending Brince's visitation after he allowed their underaged son to drive A.M.P. and A.A.P. without a license. The circuit court viewed this order as marking the end of the first period.
Though the trial court explicitly declined to award child support in the decree, it pointed to the decree's language that no support was required "in contemplation of the parties spending an equal amount of time with the children." During this first period, the court found that the parties did not have the children an equal amount of time. Accordingly, the foundation upon which Brince was not to pay any child support did not exist. By failing to have the children an equal amount of time, the court determined that Brince was not entitled to pay no support or use the lack of any support order in the divorce decree as justification for not supporting his children.
The second period began in September 2016 and ended with an August 2018 order that awarded Brandie with permanent custody and child support. A review of the court orders show that Brandie had custody of the children during this time. Brince was given reasonable visitation, to be no less than every other weekend and holiday, but was not ordered to pay child support. Brandie testified that she requested financial help from Brince but was consistently rejected. According to Brandie's testimony, however, Brince regularly exercised his visitation. Indeed, in October 2017, the trial court granted Brince's request for additional visitation to make up for missed visits when the children allegedly refused to go with him. There was no testimony suggesting that Brince failed to provide for the care and support of the children during the times he exercised visitation.
In an August 2018 order, which was dated in May, Brince was ordered to pay child support beginning June 1 of that year. This marked the first time that Brince was ordered to pay child support of any kind. Despite this order, he did not make any payments until after the adoption petition was filed in November. As part of the order, Brandie was awarded permanent custody. Brince continued to have visitation every other weekend and was awarded weekly telephone visitation. This order marked the end of the second period. Because Brandie had full custody of the children and Brince was given only limited visitation, the circuit court found that any reliance on the divorce decree's order of no child support was unjustified during the second period.
Though Brince was not ordered to pay child support until June 2018, the circuit court determined that he had a duty to financially support his children. The court found that Brince failed to meet this duty and thus failed to provide for the "care and support" of his children under section 9-9-207(a)(2)(ii). Because each period exceeded one year, the court held that Brince's consent to the adoption was not required. It further found that adoption was in the children's best interest and granted the petition. This appeal followed.
The Arkansas Court of Appeals reversed and dismissed. See Plymale v. Rogers , 2020 Ark. App. 568, 2020 WL 7239558. We granted review and now consider this case as though it was originally filed in this court. See Myers v. Yamato Kogyo Co., Ltd. , 2020 Ark. 135, at 3, 597 S.W.3d 613, 616. Our review is de novo, but we will not reverse the circuit court's decision absent clear error. See 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 made. Id. We defer to the circuit court's superior vantage point on matters of witness credibility. See Rodgers v. Rodgers , 2017 Ark. 182, at 4–5, 519 S.W.3d 324, 327. Personal observations of the court are given great weight in cases involving the welfare of young children. Id.
Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. We have long given careful protection to a natural parent's rights. See In re Adoption of Parsons , 302 Ark. 427, 431–32, 791 S.W.2d 681, 683 (1990). Adoption proceedings are in derogation of the natural rights of parents, and statutes permitting such are to be construed in a light favoring continuation of the rights of natural parents. See Bush v. Dietz , 284 Ark. 191, 195, 680 S.W.2d 704, 705 (1984). Adoption changes the natural relationship between parent and child: it changes the course of lives, the manner of inheritance, the people with whom the child associates, and it cuts the ties and relationship between the child and the family of the parent whose rights are terminated. Id. Indeed, the effect of adoption is to relieve the biological parent "of all parental rights and responsibilities" and terminate "all legal relationships between the adopted individual and his or her biological relatives ... so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes." Ark. Code Ann. § 9-9-215(a)(1).
Adoption was unknown at common law and is thus governed entirely by statute. See Irvan v. Kizer , 286 Ark. 105, 108, 689 S.W.2d 548, 559 (1985). In Arkansas, the statutory adoption scheme is primarily found within the Revised Uniform Adoption Act. See Ark. Code Ann. §§ 9-9-201 through -224. Under the Act, a petition to adopt a minor may generally be granted only if written consent to the adoption is provided by the minor's mother and father. See Ark. Code Ann. § 9-9-206(a). There are limited statutory exceptions that preclude the necessity of consent. See Ark. Code Ann. § 9-9-207(a). As relevant here, consent is not required of "a parent of a child in the custody of another, if...
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