FROM THE GREENE COUNTY CIRCUIT COURT [NO. 28JV-14-121]
HONORABLE BARBARA HALSEY, JUDGE
Lanford, Ark. Pub. Defender Comm'n, for appellant.
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
WAYMOND M. BROWN, Judge
appeals from the circuit court's termination of his
parental rights to G.E., born 9/12/14. On appeal, appellant
argues that the circuit court erred in terminating his
parental rights to G.E. because his rights were
"nonexisting." We reverse.
September 26, 2014, appellee Arkansas Department of Human
Services (DHS) filed a petition for emergency custody and
dependency-neglect of G.E. due to her birth to an
incarcerated mother. Brandon Edgar was
listed as G.E.'s putative father in the petition. The
circuit court entered an order granting emergency custody on
September 29, 2014. Appellant was not listed as a party in
the petition or the order.
a hearing on September 30, 2014, the circuit court entered a
probable-cause order on the same date noting that the parties
had stipulated that probable cause existed at the time of
removal and continued to exist. A determination of
Edgar's paternity was reserved therein for adjudication
and he was listed in the order as G.E.'s
"LEGAL/PUTATIVE FATHER[.]" Appellant still was not listed as a party.
agreed adjudication order was entered on November 10, 2014.
In that order, Edgar's status was changed to that of the
putative father only, and appellant was added as G.E.'s
"LEGAL FATHER[.]" DHS was ordered "to amend
the pleadings to make Mr. Howerton a party to this
review order was entered on November 25, 2014, after a
hearing on the same date. It stated that appellant was
incarcerated in Tucker, Arkansas. Both appellant and Edgar
were ordered to comply with the case plan and the orders of
the circuit court.
filed a motion to terminate reunification services to
appellant on December 22, 2014. It alleged therein that
appellant had subjected G.E. to aggravated circumstances
where an older sibling of G.E. was subjected to sexual abuse
by appellant. It also alleged
that appellant had subjected G.E. to aggravated circumstances
where there was little likelihood of successful reunification
with appellant, who was sentenced to 360 months'
imprisonment in the Arkansas Department of Correction (ADC)
for the abuse of G.E.'s siblings, a period of time which
constituted a substantial period of time from G.E.'s
perspective. It specifically alleged that
the fact that appellant was a legal father, and not an
apparent biological father of G.E., was a basis for
termination. The circuit court noted that
Edgar had not established paternity at that point.
circuit court entered a review-and-no-reunification-services
order on April 6, 2015, following a March 12, 2015 hearing.
It noted that appellant was G.E.'s legal father "by
virtue of his continued marriage" to G.E.'s mother
and granted DHS's no-reunification-services motion
finding that G.E. had been subjected to aggravated
circumstances in that there was little likelihood of
successful reunification with appellant based on his
thirty-year sentence for his rape conviction.
an October 19, 2015 hearing, a permanency-planning order was
entered on January 19, 2015, authorizing a plan of adoption
and a petition for termination of parental rights from DHS.
Though appellant was referenced as the legal father, the
circuit court stated therein that "[h]aving set the goal
to be adoption, the Court finds that Brandon Edgar is
indigent; the Court finds the putative parent has established
significant contacts with the juvenile such that parental
rights [h]ave attached." It stated that appellant
"shall be removed as a party to this case as he
testified today he is not the biological father of the
child." Appellant was denied any contact with G.E., and
Edgar was granted supervised visitation.
filed a petition for termination of parental rights on
November 18, 2015, listing appellant as G.E.'s legal
father and Edgar as her putative father. It alleged the
following grounds for termination of appellant's rights:
1. That G.E. had been adjudicated dependent-neglected and
continued out of appellant's custody for a period of
twelve months and the conditions necessitating removal had
not been remedied despite a meaningful effort of DHS on
account of appellant's conviction and sentence of thirty
years' imprisonment for rape;
2. That G.E. had lived outside of appellant's home for a
period of twelve months and appellant had willfully failed to
provide significant meaningful support or to maintain
meaningful contact with G.E. on account of appellant having
been imprisoned for the duration of G.E.'s
3. That other factors or issues arose subsequent to the
filing of the original petition for dependency-neglect that
demonstrate that placing G.E. in appellant's custody is
contrary to G.E.'s health, safety, or welfare and that,
despite the offer of appropriate family services, appellant
has manifested the incapacity or indifference to remedy the
subsequent issues or factors or rehabilitate his
circumstances that prevent the placement of G.E. in his
custody on account of his imprisonment for a sentence of
4. That appellant was sentenced in a criminal proceeding for
a period of time that would constitute a substantial period
of G.E.'s life on account of his thirty-year prison
5. That appellant, as the presumptive legal father, was not
G.E.'s biological father and her welfare could best be
served by terminating appellant's parental rights as the
presumptive legal father;  and
6. That appellant had subjected G.E. to aggravated
circumstances where the circuit court determined on March 12,
2015, that there was little likelihood that services to
appellant would result in successful reunification "due
to Edward Howertons [sic] conviction for rape of an 11 year
old victim and 8 year old victim. Both of which are
[G.E.'s] siblings." 
circuit court held a hearing on the petition on February 16,
beginning of the hearing, the following exchange ensued:
Attorney for Mother: Your Honor, I wanted to point out one
thing. I don't know if it will make a difference in this
hearing, but I found it odd, so you may too. The permanency
planning order that was entered on January the 19th of 2006,
paragraph 8, specifically stated and found that Mr. Howerton
shall be removed as a party to this case. As he testified
today, he is not the biological father of the child. So I am
not understanding exactly why Mr. Howerton, at this point not
being a party in this matter, would be entitled to pursue any
rights whatsoever or to defend himself against termination of
parental rights to which he does not have.
Circuit Court: Well, I vaguely remember the hearing, and I
think that the Court would have been correct to make a ruling
that based upon his testimony and the time of his
incarceration and the lack of access for the purposes of
intercourse and conception that he couldn't be the
biological father supporting his testimony that, in fact, he
was not the biological father.
I don't have a problem with all that. I don't
remember saying-and I may have very well done that that he
should be removed as a party to the case. I think that would
have if I did that and its [sic] in the order and I signed
it, so I guess I did. I think that's an error because
he's a legal father, and those legal rights exist, and
something has to happen with regard to those legal rights. So
I believe-unless some of you have ...