dissenting. I am convinced that this case should be affirmed. The majority opinion failed to mention certain facts. Wanda Sellers testified that her brother, Joe White, is the child’s biological father. At the time of the adoption hearing, White was incarcerated in Texas. He was not a party to this action. Appellant has been incarcerated in three states, Louisiana, Arkansas, and Texas. Upon her release from prison in Arkansas, appellant moved to Texas. The trial court found it significant that appellant chose to complete her parole in Austin, Texas, rather than in Arkansas where she would be closer to her child. During the ten months following appellant’s release from prison in Arkansas, she visited the child under the supervision of appellees approximately ten times. Presently, appellant is incarcerated in Texas with her next possibility for parole in 2004. In 2004, the child will be five years old and will have lived with appellees for almost her entire life.
In August of 2000, the trial court granted guardianship of the child to appellees. Appellant testified that at that time, the trial court gave “appellees discretion whether I had visitation rights or not. We set up visitation of once a month because I lived in Austin, [Texas].” Appellant also testified that it was her “understanding that in talking with Ms. Sellers that when I got out of prison and proved to her I could take care of Marissa they would have no problem in giving her back to me.” (Emphasis added.) It seems obvious to me that appellant failed to demonstrate upon her release from prison that she was capable of caring for the child.
We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001); Amant v. Callahan, 341 Ark. 857, 20 S.W.3d 896 (2000).- Consent for 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 [.]
Ark. Code Ann. § 9-9-207(a) (2) (Repl. 2002). The one-year period may be any one-year period and need not immediately precede the filing of the adoption petition. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998). It is not required that a parent fail “totally” in these obligations in order to fail “significantly” within the meaning of the statutes. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).
The trial court granted the adoption to appellees after finding that appellant had failed to provide for or contribute to the child in over a year. I agree with the trial court. I also believe that appellant failed significantly to communicate with her daughter for over a year. With this in mind, I would hold that the trial court reached the right result for two different reasons.
First, appellant failed significantly to contribute financially to her child for over a year. The majority opinion recounts Wanda Sellers’ testimony that she recognized that appellant was unable to support the child while appellant was in prison. It is undisputed that while incarcerated appellant provided absolutely no financial assistance to the child. A parent’s imprisonment does not toll a parent’s responsibilities toward her children. See Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976). “We are aware that imprisonment imposes an unusual impediment to a normal parental relationship. However, even when parenthood is disadvantaged by this unfortunate factor, one could still solicit visits from [her child] and contact [her] with cards, letters and small gifts.” Id. at 632, 542 S.W.2d at 767. The appropriate inquiry is whether the parent utilized those resources available while in prison to maintain a close relationship with the child. Id. I cannot gloss over the fact that while appellant was in prison in Arkansas, she did not send her child a single gift, and I will not excuse her total lack of contribution to her child because she was incarcerated. Although she was not employed while in prison, she could have made some token of a gift for her child.
Second, appellant failed significantly to communicate with her child for over a year. The majority claims that even if appellant failed significantly to communicate with the child that it did not occur for a year’s time. I disagree with the majority’s representation of the dates that are relevant in our analysis of measuring the one-year period. The majority opinion arbitrarily, and without citation to authority, begins counting time from the date appellees gained custody of the child. Pursuant to Ark. Code Ann. § 9-9-207(a) (2), we are directed to look for a period of time when a parent fads to support or communicate. The statute focuses upon a biological parent’s failure to act. Therefore, the date that appellees gained custody is irrelevant.
The following are the critical dates and events that should be considered in the analysis. On April 23, 1999, the child was born. Upon her birth, the child was placed briefly with her grandmother, and then the child was moved to appellant’s aunt and uncle’s home. Wanda Sellers testified that “[a]fter she was born, [the child’s] grandmother had her for about a month. Then she went to her Aunt Brenda’s for a couple of months.” Appellant testified that she did not know that the child had been moved from her aunt and uncle’s home to appellees’ home until a prison caseworker told her. This is evidence that appellant was not communicating with her aunt during or after the time that her aunt cared for the child.
Appellant gave appellees power of attorney only upon discovering from the caseworker that her child was in their custody. This was the only communication that appellant made or attempted to make with appellees or the child during her incarceration in Arkansas. On June 6, 2000, appellant was released from prison in Arkansas. On that day, rather than traveling within the state to see her child, appellant moved to Austin, Texas, to live with a boyfriend. This demonstrates that even upon her release from prison, appellant did not communicate with her child. Appellant did not communicate with her child until after she moved in with her boyfriend in another state, found employment, and saved enough money to buy a bus ticket to travel to Arkansas to visit her child. Therefore, appellant’s first communication with her child was sometime after her release from prison.
For purposes of determining whether appellant failed to communicate with her child for one year, I believe that the relevant time period begins on or shortly after April 23, 1999, and extends until sometime after June 6, 2000. Undoubtedly, this time period extends over one year. I find no evidence, not even from appellant’s own testimony, that she mailed cards, letters, or gifts to the infant during this one-year period. Furthermore, I find no evidence that appellant inquired with appellees as to the child’s well-being or that she even requested a photograph of the child. The trial court was not required to find appellant’s lack of contribution or communication to be a total failure but rather a significant failure. Pender, supra. I believe that appellant totally failed in both regards.
The majority opinion mentions that Wanda Sellers put a block on her telephone to prevent appellant from making calls to her from prison. I clarify that statement by saying that Wanda Sellers placed the block on her telephone after appellant was incarcerated in Texas. During the time appellant was incarcerated in Arkansas, no block was placed on Wanda Sellers’s telephone. In either case, appellant could have written letters to appellees requesting updated information about the child, including the child’s health, developmental progress, and growth. Appellant could have solicited appellees for visits to the prison with the child. There is no evidence that during her incarceration in Arkansas appellant made any effort to maintain a connection to her child other than furnishing appellees with her power of attorney. As such, I would hold that the trial court did not err in finding that appellant’s consent for adoption was not required as appellant failed significantly to support and communicate with the child for over a year.
Stroud, C.J., joins.