Marshall v. Rubright

Cite as 2017 Ark. App. 548

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-65

Opinion Delivered: October 25, 2017
JAMES ANDREW MARSHALL
APPELLANT
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04PR-16-616]

SETH ROBERT RUBRIGHT AND
MINOR CHILD HONORABLE XOLLIE DUNCAN,
APPELLEES JUDGE
AFFIRMED

RAYMOND R. ABRAMSON, Judge

James Andrew Marshall appeals the Benton County Circuit Court order granting the

adoption petition of Seth Robert Rubright. On appeal, James argues that the circuit court

erred by (1) failing to make specific credibility findings and (2) finding that he failed

significantly and without justifiable cause to communicate with his son, B.M. We affirm.

James married Valerie Rubright (formerly Woolsey) on August 30, 2010. They have

one child, B.M. 1 In July 2011, James and Valerie separated, and on April 18, 2012, the

Benton County Circuit Court entered their divorce decree. The decree granted Valerie

primary custody of B.M., subject to James having visitation. It further provided that James

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B.M. was born on February 8, 2008.
Cite as 2017 Ark. App. 548

pay Valerie child support in the amount of $66 a week. On November 18, 2013, Valerie

married Seth.

On December 10, 2013, the Benton County Circuit Court entered a one-year order

of protection of B.M. and Valerie against James. The order resulted from an incident

wherein James threatened to break B.M.’s neck and then sent Valerie weblinks to stories

about fathers who killed their children and the children’s mothers during disputes over child

custody and child support. On June 30, 2014, James pled guilty to first-degree terroristic

threatening associated with the incident. The court sentenced him to three years’ probation

and thirteen days in the county jail.

On July 9, 2014, the circuit court entered an order finding James in contempt for

failing to pay child support to Valerie. On October 8, 2014, the circuit court entered a

compliance-review order, finding that James had resumed paying child support.

On December 2, 2014, the circuit court entered a second order of protection of

B.M. and Valerie against James lasting through February 24, 2015. On February 15, 2015,

the circuit court extended the order for five years.

On June 2, 2015, the State of Arkansas filed a petition to revoke James’s probation.

It alleged that James had violated the order of protection, violated a no-contact order with

Valerie, and failed to report to his probation officer.

On April 2, 2016, the State amended the petition to allege that James committed

two counts of first-degree terroristic threatening and one count of harassing communication

on November 18, 2014, after James had posted a series of threatening messages to Valerie

and B.M. on his Facebook page. The messages included the statement that James hoped

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Cite as 2017 Ark. App. 548

someone would put a bullet in Valerie’s neck and a meat cleaver in B.M.’s head. He also

posted the comment: “You [expletive] sue me again and it will be the worst [expletive]

mistake you’ll regret. I promise you that.” Around that time, James also posted on Facebook

that his location was Siloam Springs, where Valerie lived. On May 5, 2016, the circuit court

revoked James’s probation and sentenced him to six years’ imprisonment.

On May 16, 2016, James pled guilty to two counts of first-degree terroristic

threatening, one count of violating an order of protection, and one count of harassing

communications. He received six years’ imprisonment to run concurrently with his

revocation sentence.

On July 26, 2016, Valerie’s husband, Seth, filed a petition for adoption of B.M. In

the petition, Seth alleged that because James had not had contact with B.M. since October

2012, his consent to the adoption was not required pursuant to Arkansas Code Annotated

section 9-9-207 (Repl. 2015). James objected to the petition.

The court held a hearing on October 19, 2016. At the hearing, the court granted

Seth’s oral motion to amend his petition to additionally allege that James’s consent to the

adoption was not required because James had failed to pay child support for one year. At

the conclusion of the hearing, the court orally granted the petition. The court noted that

the test “stated by the attorneys [is] whether [James] failed substantially, and without

justifiable cause, to communicate or support [B.M.] for a period of one year, and therefore,

his consent is not required or is being unreasonably withheld.”

On November 1, 2016, the court entered a decree of adoption. In the order, the

court found that

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Cite as 2017 Ark. App. 548

under the totality of the circumstances and the credible evidence presented, [James]’s
consent to this adoption is not necessary and is being unreasonably withheld due to
his substantial lack of contact and communication for a period of one-year as well as
his substantial failure to support the minor child for a period of one year from August
2013 through August 2014 and that his significant failures are without justifiable
cause.

James timely appealed the adoption decree to this court. On appeal, James argues that the

circuit court erred by (1) not making specific credibility findings and (2) finding that he

failed significantly without justifiable cause to communicate with B.M.

We first address James’s argument that the court erred by failing to make specific

credibility findings. He claims that the court erred when it “did not describe or point to any

testimony or evidence as credible or otherwise.” He asserts that Martini v. Price, 2016 Ark.

472, 507 S.W.3d 486, imposes a duty on the circuit court to fashion factual findings on

evidence and witness credibility in adoption cases.

We disagree. Our reading of Martini reveals no such duty. See Martini, 2016 Ark.

472, 507 S.W.3d 486. Further, James could have requested the court to make findings of

fact under Arkansas Rule of Civil Procedure 52, but he did not. In the absence of a statute

or rule requiring specific findings of fact or a timely request for specific findings under Rule

52, the appellate court will ordinarily presume that the circuit court made findings necessary

to support its conclusion. Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, 471

S.W.3d 251. Accordingly, James’s argument is meritless.

James next argues that the circuit court erred by finding that his consent to the

adoption was not required because he failed to communicate with B.M. for one year

without an adequate excuse. He claims that the orders of protection prevented him from

contacting B.M. and that Valerie also barred him from B.M.

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Cite as 2017 Ark. App. 548

We need not address James’s failure-to-communicate argument because he has failed

to sufficiently challenge two alternative bases for the court’s finding that his consent was not

required. When an appellant fails to attack a circuit court’s independent, alternative basis for

its ruling, we will not reverse. May v. State, 2016 Ark. App. 605, 509 S.W.3d 14. Here, the

circuit court found that James’s consent was “not necessary and is being unreasonably

withheld due to his substantial lack of contact and communication for a period of one-year

as well as his substantial failure to support the minor child for a period of one year from

August 2013 through August 2014 and that his significant failures are without justifiable

cause.” (Emphasis added.)

The first alternative basis is the court’s finding that James’s consent was being

unreasonably withheld. Arkansas Code Annotated section 9-9-220(c)(3) states that

(c) [i]n addition to any other proceeding provided by law, the relationship of parent
and child may be terminated by a court order issued under this subchapter on any
ground provided by other law for termination of the relationship, or on the following
grounds:

....
(3) [t]hat in the case of a parent not having custody of a child, his or her
consent is being unreasonably withheld contrary to the best interest of the
child.

Here, the court specifically stated in its written order that James’s consent was “unreasonably

withheld.” (Emphasis added.) 2 Yet, James does not challenge this finding on appeal.

The second alternative basis is the court’s finding that James significantly failed to

provide support for B.M. Pursuant to Arkansas Code Annotated section 9-9-207(a)(2),

2
Seth did not plead section 9-9-220(c)(3) in his petition for adoption. However,
James did not challenge the court’s consideration of that statute at the hearing nor does he
challenge it on appeal.

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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 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. (Emphasis added.) In this case, the court specifically stated

that James’s consent was not required “due to . . . his substantial failure to support the

minor child for a period of one year from August 2013 through August 2014.” Yet, James

does not present this as an issue on appeal. In a few sentences in James’s brief, he

acknowledges that he did not make child-support payments from February 2014 through

August 2014 but states that he “caught up every penny in October of 2014.” However,

James does not further develop his argument. See Orintas v. Point Lookout Prop. Owners Ass’n,

2015 Ark. App. 648, at 2, 476 S.W.3d 174, 175 (“The failure to develop a point legally or

factually is reason enough to affirm the circuit court.”). Because James does not sufficiently

challenge the circuit court’s two alternative, independent bases for finding that his consent

to the adoption was not required, we must affirm the court’s granting of the adoption

petition.

Affirmed.

VAUGHT and HIXSON, JJ., agree.

Niblock Law Firm, PLC, by: Raymond L. Niblock, for appellant.

Clark & Spence, by: George R. Spence, for appellee Seth Rubright.

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