                                     Cite as 2017 Ark. 182


                 SUPREME COURT OF ARKANSAS
                                        No.   CV-16-926


                                                  Opinion Delivered: May   18, 2017


REANNA RODGERS                            APPEAL FROM THE GARLAND
                                          COUNTY CIRCUIT COURT
                                APPELLANT [NO. PR-2014-531-IV]


V.                                                HONORABLE MARCIA R.
                                                  HEARNSBERGER, JUDGE
DESTINY RODGERS
                                   APPELLEE AFFIRMED; COURT OF APPEALS’
                                            OPINION VACATED.


                            RHONDA K. WOOD, Associate Justice


        Reanna Rodgers appeals from a final decree granting an adoption petition filed by

 her ex-husband’s current spouse, Destiny Rodgers. The circuit court granted Destiny’s

 request to adopt Reanna’s four minor children, KR, JR, TR, and AR. On appeal, Reanna

 argues that the circuit court erred by finding that her consent was not necessary because she

 had failed, for a period of at least one year and without justifiable cause, to communicate

 with her children or to provide for their care and support as required by law or court order.

 We affirm the order of adoption.1




        1
         We accepted this case on a petition for review of a decision by the court of appeals,
 which affirmed the circuit court’s order of adoption. Thus, our jurisdiction lies pursuant to
 Rule 1-2(e) of the Arkansas Supreme Court and Court of Appeals.
                                   Cite as 2017 Ark. 182

       Chris Rodgers and Reanna Rodgers were married in 2002 and divorced in 2011.

The divorce decree gave them joint custody of their four children. In May 2013, Chris

married Destiny Rodgers. On September 6, 2013, the circuit court, following a hearing,

entered a temporary custody order that awarded Chris sole custody of the children because

Reanna had tested positive for amphetamine and methamphetamine. The court explained

that the test showed she had used within 72 hours. It further suspended Reanna’s visitation

with the children. At the hearing, the circuit court stated, “So when I say that she is not to

have any visitation at all with these children, I mean she is not to have any visitation at all

with these children,” and warned Chris that if he permitted any visitation between Reanna

and the children that it would hold Chris in contempt of court. The circuit court also told

Reanna,

       [A]nd when you decide that your children are more important to you than
       methamphetamine, then you can certainly come back and you can ask the Court to
       reverse this ruling and the Court will certainly look at it. But until that happens then
       there’s not going to be even visitation with your children.

The circuit court’s order stated “[t]hat the Plaintiff may petition this court for a review of

the issue of child custody, or child visitation, at such time as the Plaintiff can pass a drug

screen.” In addition, the court’s order specifically required her to submit to a hair-follicle

test. The circuit court’s order also stated that “no child support shall be ordered from the

Plaintiff at this time.”

       Reanna filed two separate drug-test results with the circuit court in October 2013

and April 2014 showing that she was negative for methamphetamine and other controlled

substances. She did not file a petition for visitation following the clean drug screens. She


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later admitted that she relapsed after the October drug screen, but she claimed that she has

been drug free since approximately December 2013.

       On September 19, 2014, Destiny, with Chris’s consent, petitioned the circuit court

to adopt the children. Destiny alleged that Reanna’s consent was not required because

Reanna, for a period of more than one year, had without justifiable cause failed to provide

for the care and support of the children in a significant or meaningful fashion and because

Reanna had failed to communicate with or maintain any significant contact with them.

Reanna challenged the adoptions and filed a petition for visitation in the divorce action on

October 19, 2014.

       At the hearing on the adoption petition, Reanna testified that she had not had

visitation with her children since August 2013. She admitted that she continued to use drugs

until December of 2013. In October 2014 she married Michael Eller with whom she has a

five-month-old son. She conceded that she had not communicated with or provided

support for the children between September 2013 and September 2014. She stated she

attempted to pay child support in December 2014, after the petition for adoption had been

filed. She believed that her failures were justified because the court had suspended her

visitation and had not ordered her to pay any child support. She also stated that she did not

file a negative hair follicle test until March 10, 2015, six months after the petition for

adoption. After the hearing, the circuit court granted the petition for adoption, concluding

that Reanna’s consent was not required pursuant to Arkansas Code Annotated section 9-9-

207(a)(2) (Repl. 2015) because she failed significantly and without justifiable cause for at




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least one year to communicate with her children or to provide for their care and support.

It stated,

        The failure of the children’s mother with regards to communication or support were
        demonstrated to be meaningful, intentional and without justifiable cause. The
        Respondent’s actions during the year following her loss of child custody
        demonstrated her lack of regard for her children’s well-being and instead
        demonstrated her desire to move on with other interests she obviously found to be
        more compelling.

        Arkansas Code Annotated section 9-9-207(a)(2) provides that consent to an adoption

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 and 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.” As we have previously held, “failed significantly” does not mean “failed totally.”

Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93. Rather, it means a failure that is meaningful

or important. Id. “Without justifiable cause” denotes a failure that is voluntary, willful,

arbitrary, and without adequate excuse. In re Adoption of K.F.H. & K.F.H., 311 Ark. 416,

423, 844 S.W.2d 343, 347 (1993).

        We review probate proceedings de novo and will not reverse the decision of the

circuit court unless it is clearly erroneous. Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486.

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. When reviewing probate proceedings, we

defer to the superior position of the circuit court to determine the credibility of the

witnesses. Id. “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


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a circuit court’s personal observations when the welfare of young children is involved.” In

re Adoption of K.F.H. & K.F.H., 311 Ark. at 423, 844 S.W.2d at 347.

       The circuit court’s findings were not clearly erroneous. Reanna does not dispute

that she failed to significantly communicate with or provide support for her children for

over a year. Rather, she claims that the court erred in concluding that she did not have

justifiable cause for not contacting her children because at the September 2013 custody

hearing the circuit court instructed that she was to have no visitation with the children. We

disagree.

       This court is unwilling to hold that when a parent cannot have visitation with her

children, due to a court order, that gives the parent justifiable cause to make no effort in

continuing a relationship with the children. The statute reads it’s 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. Ark. Code Ann. § 9-9-207(a)(2). Despite having her

visitation suspended, Reanna could have communicated with the children other ways. See,

e.g., Gordon v. Draper, 2013 Ark. App. 352, 428 S.W.3d 543 (imprisonment is no

justification for failure to communicate with child) (citing Zgleszewski v. Zgleszewski, 260

Ark. 629, 542 S.W.2d 765 (1976)). She could have made telephone calls to the children,

sent birthday or Christmas cards, letters, or emails, but she attempted to do none of these.

She also did not attend any school, church, or sporting events involving her children. She

failed to show an interest in their lives despite living approximately 150 feet from the

children. Furthermore, once she was drug free, she failed to petition the court for a review

of the temporary order that suspended the visitation until October 19, 2014, which was

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thirty days after the petition for adoption had been filed and more than one year after her

first clean drug screen.2 While she claims she was unable to afford an attorney, she admitted

that she was capable of working but did not work, and while she relied on her husband’s

income, she did not ask him or her parents for money to hire an attorney or file the petition.

She gives no justifiable cause for failing to have any contact with her children, despite the

father having sole custody. The court found that from September 6, 2013 until May 20,

2015, the date of the adoption hearing, Reanna had failed to make even one effort to contact

her children. The circuit court did not error in finding that Reanna placed other interests

in priority over communicating with her children.

       This case is distinguishable from our recent decision in another stepparent adoption

case. See Martini, 2016 Ark. 472, 507 S.W.3d 486. In Martini, we held that there was

insufficient evidence to establish that the child’s father had failed without justifiable cause to

communicate with his child for a period of one year. The father was subject to two no-

contact orders that barred him from contact with the child’s mother, and he had no other

means to contact the child except through the mother. The mother had moved to another

state and not informed the father of the child’s residence. We concluded that it was



       2
          While the dissent claims Reanna could not have petitioned for visitation until she
could pass a clean drug screen, the record reflects that the court was using a drug screen that
exposes drug use within the last 72 hours. Therefore, if Reanna cared about her children
and had stopped using drugs once she lost custody, she could have passed a clean drug screen
within days and petitioned the court in September 2013. She failed to do so. However, this
argument misses the point. It was not Reanna’s failure to be drug free and petition the court
for visitation that caused her to lose her children. Regardless of Reanna’s substance-abuse
problems, suspension of visitation with one’s children is not justifiable cause for complete
failure to maintain a meaningful and significant relationship with the children through other
means.
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reasonable for the father to be concerned that contact aimed at the young child could

constitute a violation of the no-contact order that would expose him to incarceration. Here,

the court only terminated Reanna’s visitation but did not issue a no-contact order, nor did

it order her to refrain from communicating with her children or even their father.

Nevertheless, she did not attempt any form of communication with the children, who lived

down the road from her. More importantly, the circuit court had explicitly told Reanna

that she could petition the court to review the suspension of visitation as soon as she could

pass a drug screen. Thus, Reanna alone controlled when her visitation would be reinstated.

Reanna alone controlled whether she communicated with her children through cards,

letters, and phone calls. However, she did not avail herself of these opportunities to maintain

contact with her children.      Reanna does not contest that she significantly failed to

communicate with her children for more than a year.

        The circuit court concluded that Reanna’s “actions during the year following her

loss of child custody demonstrated her lack of regard for her children’s well-being and

instead demonstrated her desire to move on with other interests she obviously found to be

more compelling.” We cannot say that this finding, which was based on the credibility of

the witness testimony, including the testimony of Reanna, Chris, and two of the children,

was clearly erroneous. Reanna’s sole argument, that the court’s order prohibiting her from

exercising visitation was justifiable cause to have no communication at all with her children

is unavailing. We agree that Reanna significantly and unjustifiably failed to communicate

with the children for at least one year. Thus, we affirm the circuit court’s conclusion that

her consent to the adoption was not required.

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       Affirmed; court of appeals’ opinion vacated.

       KEMP, C.J., and WYNNE, J., concur.

       BAKER, HART, AND WOMACK, JJ., dissent.

       ROBIN F. WYNNE, Justice, concurring. I cannot agree with the majority that

Reanna’s failure to communicate with the children in the face of an order that would have

punished her with contempt for having visitation with the children justifies a finding that

her consent to a stepparent adoption is not required on that basis. Here, the trial court was

quite emphatic that allowing visitation while the order was in place would be dealt with

harshly. The majority concludes that a ban on visitation did not preclude Reanna from

having contact with the children in other ways. As persons trained in the law, we know

this. It is apparent from the record that Reanna did not. In fact, there is some indication

in the record that both Reanna and Chris thought that the trial court’s order meant that she

could not have contact with the children while the order remained in effect. I do not

believe that stripping a parent of her right to consent to the adoption of her children is

warranted essentially because she does not understand the legal distinction between visitation

and contact. Therefore, I would not affirm the trial court’s decision on the same basis as

the majority.

       However, in addition to alleging that Reanna had failed to maintain contact with

the children, Destiny Rodgers alleged in the adoption petition that Reanna had failed to

provide care and support for the children. 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 year has failed

significantly without justifiable cause to provide for the care and support of the child as

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required by law or judicial decree. Ark. Code Ann. § 9-9-207(a)(2)(ii) (Repl. 2015). It is

undisputed that Reanna provided no support for the children for at least one year prior to

the filing of the adoption petition. Reanna admitted before the circuit court that she

understood that she had a duty to support the children. Nonetheless, Reanna contends that

her failure to provide support is justified by the fact that the trial court’s order did not require

her to pay child support. However, in Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952

(1998), this court held that a parent has a legal and moral duty to support a minor child,

regardless of the existence of an order of support. Here, despite her legal and moral duty to

provide for her children, Reanna abdicated that responsibility to Chris and Destiny, taking

no action whatsoever to provide for the children in any way until the adoption petition was

filed. Under these circumstances, I do not believe that the circuit court erred in finding

that Reanna’s failure to provide support was without justifiable cause.

       For these reasons, I concur.

       KEMP, C.J., joins.


       KAREN R. BAKER, Justice, dissenting. I must respectfully dissent from the majority’s

decision because the circuit court clearly erred in granting Destiny’s petition for stepparent

adoption. Specifically, the circuit court clearly erred in finding that Reanna’s consent was

not required for Destiny to adopt the children.

       At issue here are two separate orders in two separate proceedings–an order issued in

a divorce proceeding and an order issued in an adoption proceeding. The order in the

divorce proceeding presumably remains in place. It is troubling that the circuit court, in an

adoption proceeding, could revisit an order entered in a separate divorce proceeding and
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conclude that the order was meaningless. On the question of the requirement of parental

consent to the adoption, Arkansas Code Annotated section 9-9-207(a)(2) provides in

pertinent part 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 (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[.]

The one-year period after which a parent may lose the right to consent must accrue before

the filing of the adoption petition, and the filing of the petition is the cutoff date. In re

Adoption of K.F.H., 311 Ark. 416, 420, 844 S.W.2d 343, 345 (1993) (citing Dixon v. Dixon,

286 Ark. 128, 689 S.W.2d 556 (1985)).

       During the September 4, 2013 hearing in the divorce proceeding, the circuit court

admonished both Chris and Reanna, stating that Reanna “is not to have any visitation at all

with these children.”     The September 6, 2013 amended temporary order eliminated

Reanna’s visitation rights because she tested positive for methamphetamine. The order

specifically stated that Reanna “should not be entitled to any visitation at this time.” The

order also stated that she could petition for child custody or child visitation after she passed

a drug screen. Further, the order specifically stated that “no child support shall be ordered

from Reanna at this time.” During the May 20, 2015 hearing on the adoption petition,

Reanna testified that she interpreted the amended temporary order to mean that she was to

have no contact with the children. Likewise, Chris testified that he interpreted the amended

temporary order to mean that Reanna could have no contact with the children.

       Based on Reanna’s reliance on the circuit court’s admonitions and the amended

temporary order in the divorce proceeding, Reanna’s failure to communicate with her
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children and her failure to pay child support was not without justifiable cause. This case is

even more compelling than our recent case, Martini v. Price, 2016 Ark. 472, 507 S.W.3d

486, where this court set aside a stepparent adoption. There, the “no contact” order was

directed toward the father’s contact with the mother. Here, the order restricted Reanna’s

visitation with the children. Further, the order specifically stated that Reanna was not

required to pay child support, so there was a “judicial decree” setting out her responsibilities

regarding support of the children. Martini supports the setting aside of the stepparent

adoption.

       Furthermore, prior to the filing of Reanna’s negative drug screen, her compliance

with the circuit court’s admonishments and amended temporary order was required.

Despite the majority’s holding to the contrary, the one-year period did not begin until

October 17, 2013, when Reanna’s negative drug screen was filed in the circuit court.

Accordingly, when Destiny filed her petition for stepparent adoption on September 19,

2014, the one-year period had not accrued.          Thus, the period of time between the

September 6, 2013 amended temporary order and the October 17, 2013 filing of the

negative drug screen should be excluded from the calculation of the one-year period. As

noted above, the one-year period must accrue before the filing of the adoption petition. In

re Adoption of K.F.H., supra. Here, Destiny filed her adoption petition 28 days prior to the

accrual of the mandatory one-year period. Because Destiny filed the adoption petition

prematurely, she failed to prove by clear and convincing evidence that Reanna’s consent to

adoption was unnecessary. See In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946

(1997).

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       Accordingly, I would reverse and dismiss the circuit court’s order finding that

Reanna’s consent to the adoption was not required and granting Destiny’s petition for

adoption.

       HART, J. joins in this dissent.

       SHAWN A. WOMACK, JUSTICE, dissenting. I respectfully dissent because I would

hold that Reanna Rodgers’s lack of communication with her children had not been

unjustified for the full year required by statute prior to the filing of the adoption petition. I

believe that this conclusion is required if we are to remain consistent with our recent holding

in Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486, in which the court interpreted the same

statutory language from Arkansas Code Annotated section 9-9-207. While I believe that the

outcome of the case in circuit court and the majority opinion here are likely in the best

interest of the minor children, and I do not condone the behavior of Reanna Rodgers, I

disagree with the holding of the majority simply as a function of the calendar. Therefore,

because I believe the statutory requirements were not met, I would hold that the circuit

court clearly erred in granting the petition for adoption without Reanna’s consent.

       On September 6, 2013, the circuit court entered its temporary order awarding

custody of the children to Chris Rodgers and prohibiting visitation by Reanna. As the

majority notes, the order invited Reanna to petition the court to reconsider the custody and

visitation determinations once she had passed a drug screen. The court specified that this

should be a hair-follicle test. Reanna filed a urine test negative for amphetamines with the

court on October 17, 2013, but she did not petition at that time for reconsideration of the

court’s order. Destiny Rodgers filed her adoption petition with the circuit court on

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September 19, 2014, one year and thirteen days after the initial order. We have held that

the one-year period of unjustified noncommunication (or any other failure eliminating the

parental-consent requirement for adoption) “must accrue before filing the adoption petition

and that the filing of the petition is the cutoff date.” In re Adoption of K.F.H., 311 Ark. 416,

420, 844 S.W.2d 343, 345 (1993) (citing Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556

(1985)). To reach the majority’s conclusion, one would have to conclude that the temporary

order suspending visitation justified Reanna’s noncommunication for at most thirteen days.

If her failure to communicate was justified for any longer period, then her deficiency would

not have lasted for a year prior to the petition.

       The majority does not delve into this timing issue because it holds that Reanna’s

noncommunication was justified for zero days. The majority holds that Reanna’s belief that

the visitation prohibition also prohibited contact through other channels was immediately

and entirely unjustified. In contrast, I believe that our holding in Martini necessitates a

conclusion that the court order justified Reanna’s noncommunication for at least some

period of time. I am not persuaded by the majority’s attempt to distinguish the cases. While

it is of course true that the facts differ, it is not clear to me that even those distinctions

highlighted by the majority cut against Reanna’s argument for justification here. In Martini,

the court order prevented contact specifically with the mother of the children, not the

children themselves. Martini, 2016 Ark. 472, at 5, 507 S.W.3d at 489. Martini was, in fact,

provided with an e-mail address specifically to contact his children, but opted to discontinue that

contact out of fear that it was an attempt to trick him into violating the no-contact order

with the mother. Id. As the dissent points out, the majority accepted this and other tenuous

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assertions by Martini out of what could only have been a very forgiving interpretation of

justification for the purposes of safeguarding parental rights against involuntary adoption.

See id. at 7–13, 507 S.W.3d at 491–93 (Goodson, J., dissenting). I believe Reanna’s belief

here that the no-visitation order prevented her from communicating with her children for

at least thirteen days is at least as justified as the circumstances we held in Martini to justify a

substantial failure to communicate for several years. In fact, the majority here quotes the

circuit judge as saying during the hearing, “So when I say that she is not to have any

visitation at all with these children, I mean she is not to have any visitation at all with these

children.” It is not unreasonable that this statement by the judge would be interpreted by

Reanna to mean not only in-person visitation, but also telephonic or other electronic

visitation as well.

       Because I would not hold, as the majority does, that Reanna’s incorrect

understanding of the visitation order was completely unjustified under our generous

standard from Martini, I would look instead to when her noncommunication became

unjustified. I believe the most logical date for that tipping point is her submission of a first

clean drug test on October 17, 2013. After she submitted a clean drug test, her justified—

though misplaced—trepidation about violating a court order became unjustified when she

failed to take the court up on its offer and petition it to change its order. It is true that the

urine test submitted on this date was not the hair-follicle test requested by the court, but

diligent action by Reanna at this juncture would have clarified the court’s requirements for

her, resulted in the submission of a conforming test, and rendered unjustified any further




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apprehension that she could not communicate with her children. 3 Because October 17,

2013, is less than a year before Destiny Rodgers filed the petition for adoption, I believe it

was clear error for the circuit court to grant the petition without Reanna’s consent.

       I respectfully dissent.

       Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for
appellant.

       Steve Westerfield, for appellee.




       3
          Before dismissing the relevancy of Reanna’s drug-test results entirely in its second
footnote, the majority muses in the alternative that the order provided a justifiable obstacle
to communication for three days at most. It arrives at this figure because three days was the
period within which the failed test leading to Reanna’s loss of custody and visitation detected
her drug use. I fail to see the relevance of that window, however, since it only states the
period in which the test did detect drug use instead of the period for which the test could
detect drug use. As a matter of practice, the circuit court likely specified the use of a hair-
follicle test because such tests can detect substantially older drug use than alternatives like
urine or blood analysis. The overriding impression from the circuit court’s comments was
its desire to be certain that Reanna had abandoned methamphetamine use before
considering reinstating visitation.
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