FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT.
NO. JV-13-312. HONORABLE ANNIE HENDRICKS, JUDGE.
Appellant: Robert L. Depper III.
Appellee: Mischa Kay Martin, Robert D. Kelly.
L. Chrestman, Attorney Ad Litem.
D. VAUGHT, Judge. ABRAMSON and GRUBER, JJ., agree.
D. VAUGHT, Judge
Brooke and Brent Newman appeal from the orders entered by the
Circuit Court of Sebastian County terminating their parental
rights to their son C.N. (a member of the Cherokee
Nation who was born on July 7, 2012) and
denying their posthearing motion to set aside the termination
decision or for new trial. The Newmans raise three issues on
appeal. They first argue that the trial court abused its
discretion in denying their motion to dismiss the termination
petition because appellee, the Arkansas Department of Human
Services (DHS), filed the petition outside the fifteen-month
timeline required by Arkansas Code Annotated section
9-27-359(c) (Repl. 2015). Second, they argue the trial court
clearly erred in finding that clear and convincing evidence
supported the termination decision. And finally, they argue
that the trial court abused its discretion in denying their
motion to set aside the termination decision or for new trial
based on the trial court's failure to enter a timely
termination order as required by Arkansas Code Annotated
section 9-27-341(e). We affirm.
19, 2013, DHS obtained a 72-hour hold on C.N. after medical
professionals reported to police that he had a one-week-old
broken arm and that the Newmans failed to provide a
sufficient account as to how the injury was caused or why
they delayed in seeking medical treatment. DHS filed a
petition for emergency custody on May 28, 2013, which was
granted that same day. Following an adjudication hearing, an
order finding C.N. dependent-neglected was entered on
September 10, 2013. In the adjudication order, the court
credited the testimony of Dr. Chris Bell and registered nurse
Jeanne Losurdo, who testified that the Newmans allowed C.N.
to suffer through significant pain for several days before
seeking medical attention for him and that C.N. would not
have been pain free and using his broken arm in the manner
described by the Newmans. The trial court also noted evidence
of domestic violence, much of which occurred in the presence
of C.N.; violation of no-contact orders and orders of
protection; lying to police officers; the Newmans'
volatile relationship; and Brent's criminal history
involving assault and battery of household members. The court
set the goal for the case as reunification and ordered the
Newmans to visit C.N.; attend marriage counseling; obtain and
maintain stable housing, employment, and transportation;
remain drug and alcohol free; submit to random drug testing;
undergo drug-and-alcohol assessments; and submit to
psychological evaluations. Brent was ordered to complete a
permanency-planning hearing was held on April 30, 2014,
wherein the court found that it was not in C.N.'s best
interest to return to the custody of his parents because it
would place him at risk of harm. The trial court also found
that concurrent goals of reunification and adoption were
fifteen-month review hearing was held August 24, 2014. While
the trial court found that the Newmans had completed many of
the requirements of their case plan, it further found that
C.N. was in need of DHS services and that returning him to
the custody of his parents was contrary to his welfare. The
trial court noted that the representative of the Cherokee
Nation and C.N.'s attorney ad litem agreed that C.N.
should not be returned to the Newmans at that time. The court
also pointed out that DHS had expressed an intent to file a
petition to terminate the Newmans' parental rights to
C.N. The trial court continued the concurrent goals of
reunification and adoption.
January 12, 2015, DHS filed a petition to terminate the
Newmans' parental rights, alleging three grounds: (1) the
failure-to-remedy ground pursuant to Arkansas Code Annotated
section 9-27-341(b)(3)(B)(i)( a ); (2) the
subsequent-factors ground pursuant to section
9-27-341(b)(3)(B)(vii)( a ); and (3) the
aggravated-circumstances ground pursuant to section
9-27-341(b)(3)(B)(ix)( a )( 3 )( A
termination hearing was held on March 13, 2015. Brent Newman
testified his relationship with Brooke was great, although he
conceded that they had gone through some " rocky
points" in the past and that they both " ha[d]
tempers." He admitted that he had been convicted of
battering Brooke, that she had called the police " quite
a few times" accusing him of mistreating her, and that
he had been arrested three times following Brooke's calls
to the police. He described two of his arrests. One arrest
occurred after he and Brooke used a baseball bat to destroy
each other's belongings. Another occurred on Christmas
Eve 2014. He said that he had been asleep when he was told
that someone was knocking at his door and looking into the
window. He opened the door, identified himself to the officer
as " Puddin Tane," and turned around to go back
into his apartment. He said that the officer assaulted him,
grabbing him from behind and ripping his shirt. Brent denied
drinking alcohol that night.
the incident that gave rise to DHS's custody of C.N.,
Brent testified that he did not cause C.N.'s arm injury.
However, he stated that approximately one week before they
took C.N. to the doctor, he (Brent) rolled over on the floor
to get up, and his " knee was on" C.N.'s arm.
conceded that he was an alcoholic and had a problem with
methamphetamine; however, he added that he last drank alcohol
and used meth in October 2014. He further testified that he
had maintained housing for the past year and had maintained
employment for the past two years. He stated that he attended
domestic-violence classes, regularly attended AA/NA meetings,
completed drug-and-alcohol assessments, attended individual
and marriage counseling, had a ...