APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT. NO. JV-2012-578. HONORABLE VICKI SHAW COOK, JUDGE.
Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.
Tabitha B. McNulty, County Legal Operations; and Chrestman Group, PLLC, by: Keith L. Chrestman, for appellees.
ROBERT J. GLADWIN, Chief Judge. WALMSLEY and VAUGHT, JJ., agree.
ROBERT J. GLADWIN, Chief Judge
Appellant Christian Wright appeals the order filed March 21, 2014, in which the Garland County Circuit Court terminated his parental rights to his presumptive daughter, S.W. Appellant submits that the evidence does not support a clear and convincing finding by the circuit court that he
had any parental rights to terminate, specifically as alleged or otherwise, and that the circuit court's ruling is clearly erroneous and must be reversed and dismissed as to him. We agree.
Additionally, we deny appellee Arkansas Department of Human Services' (DHS) motion to dismiss appellant's appeal as moot. Although it is undisputed that appellant was determined not to be S.W.'s parent, under any legal rationale, DHS asked the circuit court to terminate nonexisting parental rights, and the circuit court did exactly that. This court recognized in Jordan v. Arkansas Department of Human Services, 2011 Ark.App. 592, that the " onus" of an involuntary termination is much different than that of a consent because only an involuntary termination can serve as automatic grounds for termination to another child the parent currently has or even might have in the future. Id. (citing Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)( a )( 4 ) (Supp. 2011)). The issues raised in appellant's appeal are not moot and should not be disposed of procedurally.
We also note that the Arkansas Supreme Court recently reiterated its longstanding holding that, in a civil bench trial, a party who does not challenge the sufficiency of the evidence at trial does not waive the right to do so on appeal. Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585. See also Ingle v. Ark. Dep't of Human Servs., 2014 Ark. 53, 431 S.W.3d 303; Searcy Farm Supply, LLC v. Merchs. & Planters Bank, 369 Ark. 487, 256 S.W.3d 496 (2007); Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000); Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993); Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985); Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982). Accordingly, we hold that appellant has not waived his challenge to the sufficiency of the evidence supporting the circuit court's findings despite the lack of a motion to dismiss at that level.
On September 19, 2012, DHS took a seventy-two-hour hold on Megan Crawley's two children, B.C. and S.W., based on allegations that, not only was Ms. Crawley using marijuana, she was purposely exposing her children to marijuana in an effort to calm them. Her home was found to be environmentally unsuitable for children, she was hostile with the DHS caseworker when confronted, and she tested positive for THC upon further investigation prior to the children's removal.
Ms. Crawley waived the issue of probable cause at the hearing on September 28, 2012. In that probable-cause order, two putative fathers were named, Thomas Johnson and James Lane, with Mr. Lane specifically listed as S.W.'s putative father.
It is undisputed that appellant was incarcerated for the entire pendency of this case. Appellant was not living in the home from which the children had been removed, and he was not named as a party on DHS's petition for emergency custody and dependency-neglect. Although appellant was not listed in the probable-cause order, the emergency petition was served on him on October 12, 2012.
Appellant was given notice of the adjudication hearing and was listed as the legal father of S.W. on the October 12, 2012 notice. Appellant, however, was not recognized as a party at the adjudication hearing on November 16, 2012, but was merely listed in the adjudication and disposition order as being both present at the hearing and as the legal father of S.W. The circuit court made a finding that appellant was " not the biological father of the juvenile, [S.W.]," but in the very same order later referred to ...