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Bell v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

February 24, 2016

KRISTIN ELIZABETH BELL, APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD, APPELLEES

          APPEAL FROM THE YELL COUNTY CIRCUIT COURT, SOUTHERN DISTRICT. NO. JV-2013-12. HONORABLE TERRY SULLIVAN, JUDGE.

         For APPELLANT: LEAH BETH LANFORD.

         For APPELLEE: KEITH L CHRESTMAN; JERALD A SHARUM.

         ROBERT J. GLADWIN, Chief Judge. VIRDEN and GRUBER, JJ., agree.

          OPINION

          ROBERT J. GLADWIN, Chief Judge

         Appellant Kristin Bell's parental rights to her two-year-old daughter, A.M., were terminated by the Yell County Circuit Court. Kristin argues that the circuit court's order should be reversed because appellee Arkansas Department of Human Services (ADHS) failed to properly serve the petition for termination of parental rights (TPR) on her as required by Arkansas Code Annotated section 9-27-341(b)(2)(A) (Repl. 2015). Kristin also argues for reversal because the evidence was insufficient to prove the statutory grounds pled in support of TPR or that it was in A.M.'s best interest to terminate her parental rights. We affirm.

         As to her first argument, we hold that Kristin waived any objection to service through her appearance by her attorney at the termination hearing and she failed to preserve the issue with the circuit court. See, e.g., Ark. Dep't of Health & Human Servs. v. Jones, 97 Ark.App. 267, 248 S.W.3d 507 (2007); Myers v. Ark. Dep't of Human Servs., 91 Ark.App. 53, 208 S.W.3d 241 (2005). Arkansas appellate courts have repeatedly stated that the failure to raise an objection to service issues at the trial level precludes review of the issue on appeal. Blackerby v. Ark. Dep't of Human Servs., 2009 Ark.App. 858, 373 S.W.3d 375. Kristin acknowledges that she failed to raise any objection to service of process and participated in the termination hearing through the full representation of her attorney. Kristin's admitted failure to raise this issue below therefore bars any review of this issue on appeal.

          An order terminating parental rights must be based on clear and convincing evidence, Smithee v. Arkansas Department of Human Services, 2015 Ark.App. 506, 471 S.W.3d 227, and the circuit court's findings will not be reversed unless they are 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. Id; s ee also Strickland v. Ark. Dep't of Human Servs., 103 Ark.App. 193, 287 S.W.3d 633 (2008). The appellate courts review TPR orders de novo. Samuels v. Ark. Dep't of Human Servs., 2014 Ark.App. 527, 443 S.W.3d 599.

          Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Smithee, supra. In order to terminate parental rights, the circuit court must determine by clear and convincing evidence that such termination is in the child's best interest, including consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). One of the statutory grounds for termination, found in Ark. Code Ann. § 9-27-341(b)(3)(B), must also be proved by clear and convincing evidence.

          In the instant case, the circuit court granted ADHS's TPR petition based on two grounds: subsequent factors, codified at section 9-27-341(b)(3)(B)(vii)(a), and aggravated circumstances, codified at section 9-27-341(b)(3)(B)(ix). Kristin claims that the evidence supporting these two grounds was insufficient and, thus, it was error for the circuit court to base its termination order on either of these grounds. The two grounds applicable are listed in section 9-27-341(b)(3)(B) as follows:

(vii)(a) That 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.
. . . .
(ix)(a) The parent is found by a court of competent ...

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