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Halvey v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

September 21, 2016



          Tina Bowers Lee, Ark. Pub. Defender Comm'n, for appellant.

          Jerald A. Sharum, Office of Chief Counsel, for appellee.

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

          BART F. VIRDEN, Judge

         The Washington County Circuit Court terminated the parental rights of appellant John Helvey to his daughter, A.H. (DOB: 11-9-2010). Helvey argues that there was insufficient evidence of grounds to support the termination and that the trial court erred in finding that termination was in A.H.'s best interest because there was insufficient proof of potential harm. We affirm.

         I. Termination of Parental Rights

         An order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the child, including consideration of the likelihood that the child will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015).

          The trial court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B). Those grounds include

(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to the custody of the parent. . . . .
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to . . . have subjected any juvenile to aggravated circumstances.

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a); (ix)(a)(3)(A).

         "Aggravated circumstances" means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(ix)(a)(3)(B)(i).

         II. Procedural History

         On March 25, 2015, the Arkansas Department of Human Services (DHS) received a report that A.H.'s father had been arrested for two counts of delivery of methamphetamine, possession of drug paraphernalia, and endangering the welfare of a minor in the second degree.[1] The child was left with her paternal grandmother, Lisa Marshall. Marshall appeared to be coherent at the time; however, when DHS contacted Marshall on the telephone, she rambled, and her speech was slurred. DHS administered a drug test, and Marshall tested positive for methamphetamine and THC.[2] DHS placed a seventy-two-hour hold on A.H. and filed a petition for emergency custody and dependency-neglect, which was granted. The trial court subsequently found probable cause to issue the ex parte order, and A.H. was placed in the custody of her maternal grandmother, Tammy Preston.[3] The trial court ordered that there be no contact between A.H. and Marshall.

         In a May 22, 2015 order, A.H. was adjudicated dependent-neglected as a result of neglect and parental unfitness. The trial court noted that a protective-services case was first opened on the family in December 2010 due to the parents' drug use. A.H. was permitted to remain in her parents' custody as long as Preston was living in the home. In September 2012, A.H. was placed in foster care due to her parents' continued drug use. Later, custody of the child was given to Preston. In June 2014, A.H. was returned to Helvey's custody and remained with him until his arrest in March 2015 for drug-related offenses.

         On May 28, 2015, DHS filed a motion to terminate reunification services on the basis that Helvey had subjected A.H. to aggravated circumstances.[4] A hearing was held on July 10, 2015, to discuss DHS's recommendation and for purposes of permanency planning. In granting DHS's motion, the trial court found that there was little likelihood that services would result in successful reunification because Helvey had not remedied his drug use despite numerous services; he was incarcerated and facing new drug charges; and it was the second time A.H. had been removed from his custody as a result of his drug use. In the permanency-planning order, the trial court noted that the goal was reunification but established a concurrent goal of adoption. The trial court specifically found that DHS had made reasonable efforts to ...

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