Cite as 2024 Ark. App. 579 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-23-637
IN THE MATTER OF THE ADOPTION Opinion Delivered November 20, 2024 OF MC, A MINOR APPEAL FROM THE WHITE JAMES DAVID GARNER COUNTY CIRCUIT COURT [NO. 73PR-22-165] APPELLANT HONORABLE ELLEN B. BRANTLEY, V. JUDGE
RHONDA MICHELLE BUNN AND PAUL BUNN
APPELLEES AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Appellant, James David Garner (David), appeals the decision of the Circuit Court of
White County terminating his parental rights to his daughter, MC, and granting a stepparent
adoption to appellee, Paul Bunn, with the consent of the mother, Rhonda Michelle Bunn
(Michelle). David brings two points on appeal: (1) the circuit court erred in ruling that his
daughter could be adopted without his consent, and (2) the circuit court erred in finding it
was in the best interest of the child to be adopted. We affirm.
On May 17, 2022, Paul Bunn, MC’s stepfather, and Michelle jointly filed a “Petition
for Adoption” of MC by Paul. MC is the nine-year-old child of Michelle and David, who
were never married nor lived together. Their relationship ended prior to the birth of MC
on November 14, 2014, in Searcy, Arkansas. David made a brief appearance at the hospital when MC was born. Despite Michelle’s request, he failed to return to the hospital to have
his name put on MC’s birth certificate. David did not register with the Arkansas Putative
Father Registry stating he is the father of MC. Michelle was a family-law attorney for over
twenty years in White County and met Paul in April 2020 when he hired her to represent
him in his divorce from Holly Hickman. Michelle was Paul’s divorce attorney for around
six months until he discharged her as his attorney. They were married a year later in
September. At the time of the adoption hearing, they had been married for almost two years.
Paul had been consistently in MC’s life for nearly two and a half years at the time of the
hearing for adoption. The pleadings show he is a highly decorated combat veteran of Iraqi
Freedom, Desert Shield, Desert Storm, and many other missions. Paul now operates a
veterans outreach program. Michelle practices veterans law, assisting Paul.
Michelle testified that David had seen MC on the day she was born and less than five
times over the next nine years. Michelle testified she sent David photos of MC through
emails and texts for about two years after MC’s birth, but she eventually stopped because he
would respond only occasionally by saying “nice” or “cute.” David also admitted Michelle
told him there was an open-door policy to see MC. The next time he saw MC was the first
Christmas, which was the next month after her birth. He and one of his family members
came by Michelle’s home, and they visited for an hour or less. Michelle testified to another
occasion where David came to her office to obtain power of attorney for his wife. MC was
lying on a play mat in her office, and she said he did not acknowledge MC even though
Michelle asked if he would like to hold her. She also testified that he had come to her home
2 and left Christmas gifts twice but only visited with MC for about an hour when he came
with his family for her first Christmas. She also recounted seeing him at the fair when MC
was a small child, but he only spoke to MC to say something related to the goldfish she was
holding and walked off.
Michelle said she has a good relationship with David’s mother, Loretta Scoggin, and
his sister, Angie. Michelle testified that Ms. Scoggin and Angie came to several of MC’s
birthday parties and would sometimes come by at Christmas without David. Ms. Scoggin
testified that MC spent the night with Angie on one occasion and came to her home a few
times. Ms. Scoggin testified David could visit when he wanted, and he did so a few times.
Ms. Scoggin said she felt threatened by Paul and stated he had refused to allow MC to show
her how MC’s bedroom was decorated. She admitted that Paul had not refused to allow her
to visit. Ms. Scoggin testified that she had not seen or talked to MC for about two years
prior to the adoption proceedings. Ms. Scoggin admitted the last time she had seen MC was
a year and a half before the adoption proceedings were filed when Paul welcomed her into
their home, and she visited with MC. Hanah Garner, MC’s, half sister, testified that she
wanted a little sister and she loved MC but admitted she hardly knew her.
David had paid child support for MC but was in arrears $4,718. The evidence showed
David had paid $30,302 in support, but the child-support exhibits show at least a portion of
his court-ordered payments were captured as involuntary payments rather than being
voluntarily paid by David.
3 Michelle testified that Paul is a loving, involved father. She testified he is kind, but
he brings order. She said she is a very easy-going, laid-back person, and he brings an order
that she thinks is good for her children. Michelle said her oldest daughter just graduated
high school, and she and Paul became really close. Michelle believes he was instrumental in
her daughter’s development over the last two years. She testified he is a godly man, and they
pray because he had brought that to the forefront for them. Michelle testified she thinks
that this example is a good example of how to live a healthy, balanced life. She said Paul is
the one that reads the bedtime story to MC and takes her to school and picks her up at times.
Michelle testified he attends school events with her and MC. She said, “He’s the one that
pats her back when she falls and, you know, he’s just -- he’s dad.” Michelle testified that MC
would be ten years old just after the hearing and had been in the home with Paul for almost
two and a half years. Michelle believed that it was in MC’s best interest to be adopted by
Paul.
Paul testified that he is able physically, financially, and emotionally to provide for
MC. He stated MC had lived with him and Michelle for nearly two years, and he had
established a father-daughter relationship with her. He testified he and MC play games
where “we try to scare one another.” She is just a happy child with a great life. David alleged
in cross-examination that Paul had been investigated by law enforcement concerning sexual
abuse of his adopted son with Holly Hickman. Both the amended petitions for adoption of
that child and Paul’s testimony were that the minor child had a well-documented history of
serious false reports to law enforcement. Among other things, he had made claims to police
4 that a stranger attempted but failed to abduct him, later recanting to the parents. Paul
testified there was no evidence to support the sexual-abuse allegations by his adopted son.
Paul testified that the FBI, Arkansas State Police, and Searcy Police Department had cleared
him of the false allegations made by his former wife and his son. A criminal-history check
showed that Paul has no criminal history. Paul also testified that another of his adopted
children, during his divorce from her mother, alleged he hit her with a horse whip, which
he denied.
In his testimony, David alleged Michelle thwarted his visitation with MC by not
responding to his texts, and he finally gave up, but he did not give a time frame for when
those texts occurred. He testified he was under the impression that he would be given
visitation rights in writing as a reason for not visiting MC. He testified he never had any of
that, so he never felt like he could pursue visitation. David admitted Michelle told him there
was an open-door policy for him and his family to see MC. David also admitted to contacting
Michelle by telephone approximately two years prior to the adoption hearing. In that
conversation with Michelle, he agreed that Michelle consented to visits and he could start
seeing MC but on the condition it would have to be consistent, and he could not come in
and out of MC’s life. David admitted that after that conversation, he had not tried to call,
text, or do anything else in the next year and a half to pursue his desire for visitation with
MC.
At the adoption hearing, David testified he put his family and children first, and he
is more than willing, with open arms, to bring MC into his family and take care of her. David
5 said he refused to sign a consent to the adoption when Paul approached him about it. He
testified to his efforts with his other children such, as coaching softball, helping them do
homework to get good grades, and having outside activities. In his trial testimony, David
said “he could not erase the past, but we have got the rest of our lives today going forward.”
David also testified that being the biological father, there is a place for him in MC’s life. He
admitted that up to this point, he may not have given maximum effort, but going forward,
he believed this was the time and place for that to happen. David candidly admitted that his
failure to visit was nobody’s fault but his own. David expressed concerns over the allegations
of abuse of Paul’s two children raised in Paul’s divorce from Holly Hickman.
On May 26, 2023, the circuit court entered a “Decree of Adoption” granting the
adoption of MC to Michelle and Paul. The circuit court found that David’s consent is not
requited for the court to approve the adoption because he failed to have meaningful contact
with MC over eight years without cause; that it is in the best interest of MC to be adopted
by Paul; and that David’s parental rights should be terminated. The court further
acknowledged it was unable to grant visitation to David or his extended family and that
visitation would be at the discretion of Paul and Michelle. David filed a timely appeal.
The relevant Arkansas statute provides that consent to adoption is not required of a
parent whose child is “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.” Ark.
Code Ann. § 9-9-207(a)(2) (Repl. 2020). We construe adoption statutes strictly. In re
Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997). A person who wishes to adopt a
6 child without the consent of the parent must prove that consent is unnecessary by clear and
convincing evidence. Id. We review adoption proceedings de novo, Hollis v. Hollis, 2015
Ark. App. 441, 468 S.W.3d 316, but we will not reverse a circuit court’s finding that consent
is unnecessary unless it is clearly erroneous. Lybrand, supra. The issue of justifiable cause is
factual but one that is largely determined on the basis of the credibility of the witnesses.
Lybrand, supra. We give great weight to a circuit court’s personal observations when the
welfare of young children is involved. Id.
The following principles apply in analyzing the consent statutes. Pursuant to section
9-9-207(a)(2), a failure to communicate without justifiable cause is one that is “voluntary,
willful, arbitrary, and without adequate excuse.” Lybrand, 329 Ark. at 169–70, 946 S.W.2d
at 950 (quoting In re Adoption of K.F.H., 311 Ark. 416, 421, 844 S.W.2d 343, 346 (1979)).
Also, the one-year period may be any one-year period, not merely the one-year period
preceding the filing of the petition for adoption. In re Adoption of A.M.C., 368 Ark. 369, 246
S.W.3d 426 (2007). Finally, it is not required that a parent fail “totally” in these obligations
in order to fail “significantly” within the meaning of the statute. Id. at 377, 246 S.W.3d at
432. The question we must now answer on appeal is whether the circuit court’s finding of
lack of parental contact without justification was clearly erroneous. Anderson v. Douglas, 310
Ark. 633, 839 S.W.2d 196 (1992).
The record reveals that except for one visit with his family on Christmas when MC
was a newborn, David has had no more than five contacts with MC in nine years. David
admitted that his failure to visit was nobody’s fault but his own. He testified that he may
7 not have given maximum effort, but going forward, he felt like that this is the time and place
for that to happen. David admits that he has not had any contact with MC in the last year
and a half. David gave no explanation as to why he could not have visited MC by agreement
with Michelle or pursued his visitation rights in court if she were uncooperative in providing
him with visitation. Michelle testified that he and his family had an open-door policy for
visitation. His mother and sister took advantage of the open-door policy sporadically, but
David shirked his responsibility as a father. David contacted Michelle approximately two
years prior to the adoption asking to have visitation. In their conversation, David admits
that Michelle told him he could have visitation but that it must be consistent. David admits
he did not text or call Michelle to ask for visitation in the year and a half prior to the petition
for adoption. This court gives great weight to a circuit court’s personal observations when
the welfare of young children is involved. In re Adoption of Perkins/Pollnow, 300 Ark. 390,
779 S.W.2d 531 (1989); In re Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).
Here, the circuit court found that the proof of David’s lack of communication with MC for
more than a year was clear and convincing. We cannot say that the circuit court clearly erred.
We are left then with the pivotal question of whether the failure to communicate was
without justifiable cause under the statute. Anderson, 310 Ark. 633, 839 S.W.2d 196. We do
not believe the circuit court clearly erred in finding no justification for his failure to
communicate with MC. Failure to communicate without justifiable cause means a failure
that is voluntary, willful, arbitrary, and without adequate excuse. Bemis v. Hare, 19 Ark. App.
8 198, 718 S.W.2d 481 (1986); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App.
1980).
David presents a single reason why his lack of communication with MC was justified.
David testified that he texted Michelle several times to discuss visitation, but she did not
respond, and he finally quit texting her. David gave no plausible explanation as to why he
could not have visited MC by agreement with Michelle or pursued his visitation rights in
court if she were uncooperative in providing him with visitation. David and Michelle lived
in the same small town, David had her phone number, David had delivered Christmas gifts
on two occasions, and he had dropped off child support at her home but never asked to see
MC. David admitted Michelle offered him an open-door policy for visitation with MC.
Despite that offer, David did not take advantage of her willingness to allow visitation with
MC. Approximately two years prior to the filing of the adoption petition, David called
Michelle to ask for visitation with MC. Michelle agreed to the visitation but made it clear
she did not want him to have an in and out relationship, which she believed was not in the
best interest of MC. David admitted that after that conversation, he did not call, text, or
make any other effort to communicate with MC for more than a year and a half when the
petition for adoption was filed. Failure to communicate without justifiable cause means a
failure that is voluntary, willful, arbitrary, and without adequate excuse. K.F.H., 311 Ark.
416, 844 S.W.2d 343; Bemis, 19 Ark. App. 198, 718 S.W.2d 481; Roberts, 268 Ark. 917, 597
S.W.2d 840. The record is clear that David, by his own admission, was not thwarted in his
efforts to visit MC but that his failure to have visitation was voluntary, willful, and arbitrary
9 and without adequate excuse on his part. We do not believe that the circuit court clearly
erred in finding no justification for the failure to communicate.
David challenges the court’s best-interest finding, and again we affirm. Before an
adoption petition can be granted, the circuit court must find from clear and convincing
evidence that the adoption is in the best interest of the child. Kohler v. Croney, 2020 Ark.
App. 289, 602 S.W.3d 123; Newkirk v. Hankins, 2016 Ark. App. 186, 486 S.W.3d 827. We
review the evidence de novo. Id. We will not reverse a circuit court’s decision regarding the
best interest of a child to be adopted unless it is clearly against the preponderance of the
evidence, giving due regard to the opportunity and superior position of the circuit court to
judge the credibility of the witnesses. Id. We give great weight to a circuit court’s personal
observations when the welfare of young children is involved. Id. The mere fact that a parent
has forfeited his right to have his consent to an adoption required does not mean that the
adoption must be granted; the court must further find from clear and convincing evidence
that the adoption is in the best interest of the child. Id. The burden rests on the one seeking
adoption to prove by clear and convincing evidence that adoption is in the child’s best
interest. Id. The ultimate determination of best interest is the primary objective of the circuit
court in custody matters.
David argues that Paul has no contact with his adopted children, and the court did
not consider MC’s best interest because there were allegations of sexual abuse by Paul against
his son. The circuit court specifically addressed this argument, stating these children were
from a prior marriage where the allegations were thoroughly investigated by law enforcement
10 without any result indicating that Paul is a sex offender or otherwise dangerous. Michelle
testified that Paul’s children and grandchildren visit them frequently and have a good
relationship with Paul. Michelle said her oldest daughter just graduated high school, and
she and Paul became really close. The court simply did not afford David’s testimony the
weight that he desires and asks this court to reweigh the evidence in his favor, which we will
not do. Madison v. Ark. Dep’t of Hum. Servs., 2013 Ark. App. 368, 428 S.W.3d 555.
David argues the court found that having two parents is better than one but failed to
acknowledge Michelle’s depression, brain lesions, and cognitive issues when determining to
grant the adoption. Testimony was presented that Michelle had quit the practice of law since
she was diagnosed with brain lesions and had migraines but that she is okay. She testified
that she was assisting Paul in his work to help veterans to obtain benefits with no indication
that she was not able to function in that capacity. Further, Michelle testified succinctly as to
the facts relating to David’s lack of attention to MC and recounted the sporadic visitations
over the years by David’s mother and sister. Michelle, acting as Paul’s attorney, also cross-
examined witnesses and argued the case with no sign of impairment noted by the court. No
evidence was presented that she is not competent to raise MC.
David also argues regarding the best-interest finding that the court failed to consider
the bond he had with MC and the negative impact that the adoption would have on MC’s
relationship with his extended family. David argues what could have been but never was
because of his own actions. The court found David’s relationship with MC is virtually
nonexistent. Under any interpretation of the facts, David is a virtual stranger to MC because
11 he has had virtually no contact with her over the nine years of her life. The court noted
Paul’s stable home and employment, the fact that MC was doing well in school while in
Paul’s care, and the fact that MC is happy and Paul takes time with an interest in her school
and home life. In contrast, David has a history of completely ignoring MC and has failed to
undertake the responsibility to be a father to MC.
David also argues that adoption is not in MC’s best interest because it would
terminate his relationship with her half siblings, aunt, and paternal grandmother; however,
the evidence demonstrated that MC had no relationship with her half siblings prior to the
adoption and had not seen or heard from her grandmother or aunt in over two years. David
grasps at comments made by the circuit court in the decree to show it was not in MC’s best
interest to be adopted because the court found that some contact with his family was a benefit
to MC. Here, the court found that David’s relationship with MC was virtually nonexistent.
The court found that some of his family members have done more than he has. But even
those contacts were sporadic, mostly consisting of attendance at birthday parties and perhaps
dropping by once a year. The circuit court made the specific finding that the adoption by
Paul was in the best interest of MC regardless of whether or not Paul or Michelle, in their
discretion, allowed visitation by the grandmother. Here, the problem is not one of best
interest of the child but the circuit court attempting to craft a remedy that cannot exist, the
court undermined its own best-interest finding for purposes of the adoption. That said, the
circuit court made a specific finding that it was in the best interest of MC to be adopted by
Paul and Michelle based on total abdication by David of his parental responsibilities, and
12 the sporadic visitation by the aunt and grandmother does not override the best-interest
determination.
In In re Adoption of AP, 2021 Ark. App. 440, 638 S.W.3d 293, we recently rejected a
similar challenge by a biological father who argued that an adoption would not be in the
child’s best interest because it would terminate the long-term relationship between the child
and his paternal grandparents. We reiterated that “the circuit court must weigh the benefits
flowing to children from the granting of an adoption as opposed to weighing the
disadvantages that may result from the severing of ties between grandparents and
grandchildren.” 2021 Ark. App. 440, at 16, 638 S.W.3d at 303. Citing Newkirk v. Hankins,
the AP court explained that a circuit court evaluating whether adoption is in a child’s best
interest is not required to prioritize “relatives’ [want of] a relationship with the child over the
child’s need for a stable and permanent home.” Id. at 17, 638 S.W.3d at 303 (citing Newkirk,
2016 Ark. App. 186, 486 S.W.3d 827). Regardless of the comments in the decree regarding
visitation with the paternal grandmother, the circuit court acknowledged it had no authority
to order visitation to occur and found it was in the best interest of MC that the adoption be
granted. Skelton v. Davis, 2021 Ark. App. 473, 639 S.W.3d 373.
When reviewing the entire evidence, we cannot say with firm conviction that a
mistake has been committed. We are satisfied that the court’s best-interest finding is
supported by clear and convincing evidence, and we therefore affirm.
Affirmed.
VIRDEN and KLAPPENBACH, JJ., agree.
13 Choate Law Firm, PLLC, by: Penny Choate Agee, for appellant.
Michelle Bunn, for appellees.