APPEAL FROM THE SEARCY COUNTY CIRCUIT COURT [NO. 65JV-13-13] HONORABLE TROY B. BRASWELL, JR., JUDGE
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
ROBERT J. GLADWIN, CHIEF JUDGE.
Jerod Miller appeals the Searcy County Circuit Court's order of September 9, 2015, terminating his parental rights to T.M. (born 12/10/2005) and T.C. (born 12/03/2009).Miller argues on appeal that, because there was no evidence on the likelihood of adoption and no finding that such evidence would not have mattered, the trial court erred in finding that termination of his parental rights was in the children's best interest. He further claims that we should reverse the trial court's finding that the Arkansas Department of Human Services (DHS) proved abandonment of an infant because DHS did not plead abandonment in its petition for termination of parental rights. We affirm in part and reverse and remand in part.
I. Statement of Facts and Procedural History
DHS filed a petition for emergency custody and dependency-neglect, and the trial court signed an ex parte order on July 23, 2013, wherein DHS was granted custody of the two girls, T.M. and T.C. The petition claimed that Sarah Coleen Cortez was the mother and Miller was the father of the two girls. The attached affidavit stated that DHS had received a hotline call to conduct a risk assessment on the children on July 15, 2013, because T.C. was red and swollen from her vagina to her anus, with a "white slimy substance" oozing from her anus and vagina. Her daycare teachers both observed bug bites all over T.C. and boils on her legs. Both teachers had observed her anus and vaginal area to be very red, swollen, and abnormally sized. On July 19, 2013, a caseworker assessed T.C. and observed those things that had been reported. Miller agreed to allow T.M. and T.C. to be evaluated at Arkansas Children's Hospital, and the girls were given a full physical. The doctor reported concerns about the numerous bug bites on the girls and their general appearance. Both girls were dirty and had bruises. The doctor stated that the girls' skin tone was not normal. On July 20, 2013, DHS took a seventy-two-hour hold due to medical neglect, possible sexual abuse, and environmental neglect.
A probable-cause order was filed on July 30, 2013, wherein the trial court found that probable cause existed to issue the emergency custody order to protect the girls. No visitation was granted to either parent due to the sexual-abuse allegations.
An adjudication order was filed on October 10, 2013, finding by a preponderance of the evidence that the girls were dependent-neglected. Miller stipulated to a finding of dependency-neglect as it related to environmental and medical neglect. The sexual-abuse allegations remained "outstanding concerns" for the court, but no finding was made as to those allegations. The girls remained in DHS custody because it was found to be in their best interest to do so in order to protect their health and safety. The goal of the case was reunification with a concurrent goal of adoption. Visitation for Miller was to be at the therapist's request. Miller was ordered to cooperate with DHS; keep DHS informed of his residence and place of employment; take medications as prescribed; refrain from the use of illegal drugs and alcohol; submit to random drug screens; complete parenting classes; obtain or maintain stable housing and employment or income; maintain a clean, safe home for himself and the girls; demonstrate an ability to protect the girls and keep them safe; submit to a psychological evaluation; attend individual counseling; attend family counseling as recommended; and comply with the terms of the case plan. He was also ordered to pay thirty-seven dollars per month to DHS for child support beginning October 17, 2013.
A permanency-planning order was filed July 8, 2014, with a finding that the goal of reunification with the father should continue "due to the lack of counseling provided by DHS to this point. It is not the fault of the father that the counseling has not been ongoing. The father has failed to comply in other areas[.]" It was noted that T.M. would remain in a residential-treatment facility and T.C. would remain in a foster home. The court found that Miller had failed to comply with the case plan and court orders because he had not maintained stable housing, had no employment, had no transportation, had tested positive for illegal drugs, and had obtained new felony criminal charges relating to drugs. The trial court found that he had made no progress toward alleviating or mitigating the causes for the girls' removal from his home.
At the fifteen-month review hearing, the trial court found that the goal of the case should be changed to adoption, and DHS was ordered to file a petition to terminate parental rights. The court found that Miller had failed to comply in that he had a home, but it was not stable or hazard free. He had obtained new drug charges and a conviction since the last hearing in June 2014. He had been employed only since August 2014. He was unavailable for drug screens from May through September 2014. He had missed three of the last four counseling appointments and had not been truthful to the counselor regarding his drug involvement. He was not current on child support, and he was involved in a domestic altercation the night before the hearing.
DHS filed a petition for termination of parental rights alleging that the grounds for termination were that the children had been adjudicated to be dependent-neglected and had continued out of the home for twelve months, and despite a meaningful effort by DHS to rehabilitate the home and correct the conditions that caused removal, those conditions had not been remedied. Ark. Code Ann. § 9-27-341 (b) (3) (B)(i) (a) (Repl. 2015). Further, DHS alleged that subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose to demonstrate that the return of the girls to the father's home was contrary to their health, safety, or welfare and that, despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or factors. Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii)(a).
Another ground alleged by DHS was that the girls had lived outside the home of the parent for a period of twelve months, and the parent had willfully failed to provide significant material support in accordance with their means or to maintain meaningful contact with the girls. Ark. Code Ann. Ark. Code Ann. § 9-27-341 (b)(3)(B)(ii)(a). Finally, DHS alleged aggravating circumstances. Ark. Code Ann. § ...