FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 16JV-14-29] HONORABLE MELISSA BRISTOW RICHARDSON, JUDGE
Bowers Lee, Ark. Pub. Defender Comm'n, for appellant.
A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
KENNETH S. HIXSON, JUDGE
Harvey Anderson appeals from the termination of his parental
rights to his son, M.A., who was born on January 16,
2014. On appeal, Mr. Anderson argues
that because he has a disability within the purview of the
Americans with Disabilities Act (ADA), the case plan should
have been modified to accommodate his disability pursuant to
Arkansas Code Annotated section
9-27-341(b)(3)(B)(vii)(b) (Repl. 2015). Mr. Anderson
contends that appellee Arkansas Department of Human
Services' (DHS's) failure to make such modifications
resulted in premature termination of his parental rights, and
that the order terminating his parental rights should be
reversed. We affirm.
review termination of parental rights cases de novo.
Mitchell v. Ark. Dep't of Human Servs., 2013
Ark.App. 715, 430 S.W.3d 851. At least one statutory ground
must exist, in addition to finding that it is in the
child's best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code
Ann. § 9-27-341 (Repl. 2015); M.T. v. Ark. Dep't
of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997).
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. Anderson v.
Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). We will
affirm a trial court's finding that a disputed fact was
proved by clear and convincing evidence unless that finding
is clearly erroneous. J.T. v. Ark. Dep't of Human
Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark. Dep't of Human
Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).
case began on October 27, 2014, when DHS filed a motion for
emergency custody of M.A. Attached to the petition was an
affidavit stating that Marsha Davis had stabbed Mr. Anderson
in the face with a screwdriver, resulting in Ms. Davis's
arrest for felony domestic battery. The attack occurred in the couple's
home in the presence of the child. Upon inspection of the
home, the family-service worker found a plastic baggie
containing cocaine residue and a crack pipe. Mr. Anderson
smelled of alcohol and had very slurred speech. Based on the
information in the affidavit, the trial court entered an ex
parte order for emergency custody on the same day DHS's
petition was filed.
December 12, 2014, the trial court entered an adjudication
order finding M.A. to be dependent-neglected based on
parental unfitness as to both parents. The goal of the case
was reunification. Among other things, Mr. Anderson was
ordered to cooperate with DHS, remain drug free, submit to
random drug screens, complete parenting classes, and maintain
safe and stable housing. DHS was ordered to arrange
review order entered on April 14, 2015, the trial court found
that Mr. Anderson had complied with some of the case plan,
but had not visited the child on a regular basis, had tested
positive for cocaine, and had not maintained safe and stable
housing. In the review order, the trial court directed Mr.
Anderson to complete long-term inpatient drug rehabilitation,
and ordered that Mr. Anderson be drug-free before being
allowed additional visits with the juvenile.
October 22, 2015, the trial court entered a
permanency-planning order changing the goal of the case to
termination of parental rights and adoption. The trial court
found that Mr. Anderson had failed to complete drug
rehabilitation as ordered and had tested positive for cocaine
on multiple occasions. In the permanency-planning order, the
trial court appointed counsel to represent Mr. Anderson.
filed a petition to terminate Mr. Anderson's parental
rights on November 17, 2015. After a hearing, the trial court
entered an order terminating Mr. Anderson's parental
rights on February 12, 2016.
termination order, the trial court found by clear and
convincing evidence that termination of Mr. Anderson's
parental rights was in M.A.'s best interest. The trial
court also found clear and convincing evidence of three
statutory grounds under Arkansas Code Annotated section
9-27-341(b)(3)(B) (Repl. 2015). Pursuant to subsection
(ii)(a), the trial court found that the juvenile had
lived outside the home of the parent for twelve months and
that the parent had willfully failed to maintain meaningful
contact with the juvenile. The trial court also found, under
subsection (iv), that Mr. Anderson had abandoned the
juvenile. Finally, pursuant to subsection (vii)(a),
the trial court found that other factors or issues arose
subsequent to the filing of the original petition for
dependency-neglect that demonstrated that placement of the
juvenile in the custody of the parent was contrary to the
juvenile's health, safety, or welfare and that, despite
the offer of appropriate family services, the parent had
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.
Middleton, a family-service worker assigned to this case,
testified that although Mr. Anderson had entered a long-term
drug-rehabilitation program, he left the program long before
completion. Ms. Middleton further stated that Mr. Anderson
had tested positive for cocaine on numerous occasions. Ms.
Middleton testified that over the course of this case, Mr.
Anderson had "hit and miss" visits with the child
and had not visited the child at all since April 2015. The
only time Mr. Anderson saw M.A. after April 2015 was when he
met briefly with the child when they were both in attendance
at the October 2015 permanency-planning hearing. Ms.
Middleton indicated that, on her last visit to Mr.
Anderson's home, the home was inappropriate for a child
and that there were multiple people living there and numerous
others coming and going. Ms. Middleton stated that M.A. could
not be safely returned to Mr. Anderson and that M.A. was
adoptable. She recommended termination of Mr. Anderson's
parental rights based on the best interest of the child.
Anderson testified that he has a learning disability and has
difficultly reading and writing. He stated that he receives social security
disability benefits. Mr. Anderson stated that he requested an
attorney from DHS, but was not provided one until the day of
the permanency-planning hearing. Mr. Anderson admitted at ...