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Brumley v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I and II

February 11, 2015


Page 348


Dusti Standridge, for appellants.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

WAYMOND M. BROWN, Judge. GLADWIN, C.J., and VAUGHT, J., agree. HIXSON, J., concurs. HARRISON and WHITEAKER, JJ., dissent. WHITEAKER, J., joins in this dissent.


Page 349


Appellant appeals from the circuit court's termination of his parental rights to G.B.[1] On appeal he argues that (1) there was insufficient evidence to support the grounds upon which his rights were terminated, and (2) there was insufficient evidence to support the court's potential-harm finding as part of its finding that termination of appellant's parental rights was in G.B.'s best interest. We affirm.

G.B. was removed pursuant to a 72-hour hold on October 10, 2012, pursuant to an ex-parte order of the same date, after his mother was arrested on multiple charges after becoming violent with a family member at G.B.'s birthday party in the

Page 350

presence of G.B. and a younger sibling. Appellant was incarcerated, as a habitual offender, throughout the pendency of the case.[2] On December 20, 2013, the circuit court entered an order terminating appellant's parental rights to G.B. This timely appeal followed.

I. Standard of Review

In cases involving the termination of parental rights, there is a heavy burden placed on the party seeking to terminate the relationship.[3] This is because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents.[4] Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.[5] Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children.[6]

We review termination of parental rights cases de novo.[7] At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence.[8] Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established.[9] The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous.[10] A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.[11] We do give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses.[12]

II. Ground--Failure to Remedy Cause for Removal

Arkansas Code Annotated section 9-27-341 states that parental rights may be terminated on the ground

[t]hat a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department

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to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.[13]

This particular ground requires that (1) the child be adjudicated dependent-neglected, (2) the child is out of the custody of the parent for twelve months, and (3) the parent failed to remedy the conditions that caused the child's removal.[14]

Appellant argues that this ground cannot be used against him because he was not responsible for the conditions that caused removal. DHS chose not to address this argument, focusing on the second argument only. We find merit in appellant's argument. Though G.B. was adjudicated dependent-neglected, he was out of his mother's custody for twelve months, not appellant's. Furthermore, appellant did not cause G.B.'s removal, nor was his absence cause G.B.'s removal. This provision is not applicable to him and cannot support termination of his parental rights.[15] The circuit court clearly erred.

III. Ground-Subsequent Factors

Arkansas Code Annotated section 9-27-341 states that parental rights may be terminated on the ground

[t]hat other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.[16]

Accordingly, DHS was required to prove that (1) other factors arose subsequent to filing the original dependency--neglect petition, (2) the parent was offered appropriate family services, and (3) the parent manifested incapacity or indifference to remedying the subsequent issues.

A. Other Factors Subsequent

Appellant argues that this ground is not sufficient to support termination of his parental rights because his incarceration, as cited by DHS in its petition for termination, was not a subsequent factor where he was already imprisoned when the case began. DHS argues that appellant's failure to comply with the case plan, due to his own incarceration, is a factor that occurred subsequent to the initial petition. In passing, DHS argues that appellant's continued incarceration should be seen as a subsequent factor. Because we agree with DHS's first argument, we do not address its second argument.

Appellant was ordered to obtain individual counseling; not use illegal drugs or alcohol; obtain and maintain stable housing and employment that will be adequate for himself and G.B.; maintain a clean, safe home for himself and G.B.; complete twelve hours of parenting classes; demonstrate the ability to protect G.B. and keep him safe from harm; and follow the case plan and court orders.

Page 352

In its permanency-planning order, the court noted that appellant had " participated in parenting classes, life skills, sobriety classes, etc., in prison" but went on to note that he could not care for the child because he would remain incarcerated for another nine months.[17] The court's notation stated that appellant " participated in" the listed activities. Appellant provided no proof of participation in, or completion of, any of the programs.[18] There was no information detailing when these services were obtained, when or if they were completed, and more importantly, there was no indication at the termination hearing of whether those services made appellant a viable placement option for G.B., or made it so he would become a viable placement option within a reasonable amount of time after his release from prison, nine months after the hearing date. Additionally, he was never able to comply with the court's other orders as the fact of the matter was that appellant was not employed and did not have a home, as he was incarcerated, and had no " concrete plan," as argued by DHS, for a stable home at the time of his pending, but unspecified date of release.[19]

The goal of section 9-27-341 is to provide permanency in a child's life in circumstances in which returning the child to the family home is contrary to the child's health, safety, or welfare and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the child's perspective.[20] A child's need for permanency and stability may override a parent's request for more time to improve the parent's circumstances.[21] Appellant argues that he should have been allowed more time to reunify with G.B. in light of the " significant and measureable progress he made." We see none. Because appellant was ...

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