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McHenry v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

September 3, 2014

CALVIN McHENRY, APPELLANT,
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN, APPELLEES

APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT. NO. JV-11-62. HONORABLE RALPH WILSON, JR., JUDGE.

Elizabeth J. Finocchi, Arkansas Public Defender Commission, for appellant.

Tabitha B. McNulty, County Legal Operations; and Chrestman Group, PLLC, by: Keith L. Chrestman, for appellees.

DAVID M. GLOVER, Judge. WALMSLEY and VAUGHT, JJ., agree.

OPINION

DAVID M. GLOVER, Judge

Calvin McHenry appeals from the December 17, 2013 order terminating reunification

Page 725

services for him in connection with his three minor children: A.M., a female (D.O.B. 7-26-2004), C.M., a male (D.O.B. 6-29-2005), and B.M., a female (D.O.B. 2-3-2009). The order did not terminate his parental rights, but, noting that the termination of reunification services often leads to the termination of parental rights, a Rule 54(b) certification was included in the order pursuant to Rule 6-9(a)(1)(B) of the Rules of the Arkansas Supreme Court and Court of Appeals, certifying that the December 17 order constituted " entry of final judgment as to the finding that the minor children have been subjected to aggravated circumstances in that there is little likelihood that further services to the family will result in successful reunification with Calvin McHenry." Calvin raises two interrelated points of appeal, challenging the sufficiency of the evidence supporting the trial court's decision: 1) there was not sufficient evidence to prove the statutory ground for termination of services relied on by the trial court, and 2) the trial court erred when it denied his second oral motion to dismiss because the Department had not met its burden of proof. We affirm.

Procedural Background

Calvin and Suzann McHenry are the birth parents of the three minor children involved in this matter. The children were initially removed and placed in the custody of the paternal grandparents, Albert and Joyce McHenry, because Suzann burned A.M. " with [a] cigarette or cigarettes over the Memorial Day weekend in May of 2009." Reunification was the case goal for the parents, but guardianship of the children continued with the grandparents. The grandparents were eventually made permanent guardians by order dated January 12, 2010, Suzann was ordered to have no contact with the children, and the court case was closed.

On July 11, 2011, the Arkansas Department of Human Services, (DHS) filed a new petition for emergency custody and dependency-neglect. The supporting affidavit basically reported facts supporting environmental neglect: roaches all over the place; a strong smell of urine and feces; trash everywhere; a grandparent's report that one of the children was responsible for spreading her own feces all over the floor; that one of the three bedrooms was not being used because the grandmother's sister and brother-in-law were shooting at them and the children; and that the other two bedrooms could not be entered because they were " filled all the way to the door entrance." The children were taken into emergency custody and subsequently adjudicated dependent-neglected. The Court ordered reunification with the grandparents as the case goal, but the children remained in DHS custody. The goal of the case was eventually changed to adoption, and DHS was authorized to pursue termination of parental rights by order dated June 13, 2012, but not filed until November 16, 2012. Following a December 5, 2012 review hearing, the trial court ordered DHS to refile the petition for termination of parental rights, and the children remained in DHS custody.

On May 15, 2013, the trial court held a hearing for further disposition and review. In its June 7, 2013 order, the trial court reported that Suzann McHenry's parental rights had been terminated on May 15, 2013, and an appeal had not yet been filed; that the grandparents' guardianship of the children had been terminated by order entered on May 15, 2013; that return of custody to the remaining parent, Calvin McHenry, was contrary to the children's welfare; and that the goal of the case was to be adoption. The order went on to provide, however, that DHS was to develop

Page 726

an appropriate case plan for Calvin and to conduct a staffing for him. Calvin was ordered to attend parenting classes, view the " ticking-clock" video, remain drug free and undergo random tests, obtain and maintain stable employment, obtain and maintain stable and safe housing, and obtain a psychological assessment and follow its recommendations.

On July 22, 2013, another hearing was held for further disposition and review. The court noted that time for Suzann to appeal the termination of her parental rights had run; that the grandparents' appeal was pending; and that DHS had filed in open court on that date a motion to terminate reunification services and a notice of intent to use child hearsay. The children remained in DHS custody. The trial court ordered DHS to develop an appropriate case plan for Calvin and to conduct a staffing for him within thirty days; to obtain a certified copy of the full record of Calvin's criminal conviction and submit it to the court; to refer Calvin to CSE; and to obtain a criminal background check and a child-maltreatment registry check on Calvin. The court ordered Calvin to comply with the case plan and to do all of the previously ordered things if he had not already done so. Calvin's visitation was suspended, and a hearing was set for September 25, 2013, on DHS's motion for no-reunification services.

On October 9 and November 20, 2013, a hearing on the DHS motion to terminate reunification services was held. On December 17, 2013, the trial court entered its order terminating reunification services. It is from this order that Calvin brings this appeal. The order granted only in part DHS's motion to terminate services, but it found that doing so was in the children's best interest and explained the rationale. The order provides in pertinent part:

a. The Court finds by clear and convincing evidence that the children have been subjected to aggravated circumstances in that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-365(c)(2)(A)(iv). The Court adopts in full Paragraph 3(c) of the Department's Motion to Terminate Reunification Services, with the exception of the last sentence. Specifically, the juveniles have been out of the custody of the father, Calvin McHenry, since approximately 2009, when the juveniles were removed from the household of Calvin and Suzann McHenry due to the physical abuse of the mother, Suzann McHenry and adjudicated Dependent/Neglected. As part of that case the juveniles were placed in the custody of the grandparents Albert and Joyce McHenry. The Juveniles were removed from the custody of Albert and Joyce McHenry on July 7, 2011, after allegations of environmental neglect, and were again adjudicated dependent/neglected. Although he was not explicitly included in the case plan, during the 21 month duration of that case, Calvin McHenry consistently attended hearings but did not request custody or make any significant attempts to regain custody of the juveniles up to the point where the Court terminated the rights of the custodians, Albert and Joyce McHenry, and the mother Suzann McHenry.

The trial court granted Calvin's motion to dismiss as to the allegations contained in Paragraph 3(b)(i) and 3(b)(ii) of DHS's motion to terminate services, which pertained, respectively, to sexual abuse and the fact that Calvin was a ...


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