FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. JV-2015-21] HONORABLE JIM D. SPEARS, JUDGE.
Tabitha McNulty, Arkansas Public Defender Commission, for
Firth, Office of Chief Counsel, for appellant. Chrestman
Group, PLLC, by: Keith L. Chrestman, attorney ad litem for
BRANDON J. HARRISON, Judge.
Ritter appeals the order of the Sebastian County Circuit
Court that terminated his parental rights to his daughter,
Ritter argues that the Department of Human Services (DHS)
failed to plead any allegations under the Indian Child
Welfare Act, 25 U.S.C. §§ 1901-1923 (ICWA) in its
termination petition and that there was insufficient evidence
to support a finding that active efforts were made to prevent
the breakup of the Indian family. We affirm.
January 2015, DHS received a "health and safety
request" from the Arkansas State Police in reference to
the Ritter family. The police had been informed that the
Ritters had recently moved to Fort Smith from Oklahoma; that
in August 2014, while living in Oklahoma, two-year-old K.R.
had been severely burned on her face; that an investigation
had determined that the injuries were the result of
maltreatment by Ritter; and that Oklahoma was in the process
of filing criminal charges against him. DHS contacted
K.R.'s mother, Whitney, who reported that she had been
advised to keep the children away from Ritter but that she
did not believe he had intentionally harmed K.R. Whitney also
stated that Ritter had been the primary caregiver for K.R.
and her brother, four-year-old C.S., since the family had
moved to Arkansas. DHS also contacted Ritter, who stated that
the burns had been the result of an accident and that he had
not harmed K.R.
exercised a seventy-two-hour hold on the children to ensure
their safety, and an ex parte order for emergency custody was
granted on January 20. On January 27, DHS filed notice that
the children were eligible for membership in the Choctaw
Nation of Oklahoma through their mother and that ICWA would
apply to the proceedings, and on February 9, the Choctaw
Nation filed a notice of intervention.
2015, the children were adjudicated dependent-neglected by
reason of "physical abuse and neglect/failure to
protect." The court found that K.R. had been physically
abused by Ritter and that Whitney had failed to protect her
from abuse. The court noted that Ritter had been charged with
felony child abuse in Oklahoma and was presently incarcerated
there. Ritter was ordered to obtain and maintain stable
housing, income, and transportation; complete parenting
classes and visit regularly; submit to a drug-and-alcohol
assessment and complete recommended treatment; submit to
random drug screens and hair-follicle testing; submit to a
psychological evaluation; and resolve his criminal charges
and comply with the terms and conditions of any criminal
sentence. Finally, the court acknowledged the Choctaw
Nation's intervention in the matter but noted that it had
not appeared at the adjudication hearing. The court
"reserve[d] any ruling on further issues related to
compliance with the Indian Child Welfare Act (ICWA) until
further notice from the Choctaw Nation."
review order entered in September 2015 noted that DHS had
made reasonable efforts to provide family services and that
Ritter had not complied with the case plan. The court found
that Ritter remained incarcerated in Oklahoma while awaiting
trial on the criminal charges involving K.R. In the
permanency-planning order filed in February 2016, the court
found that DHS had made reasonable efforts to finalize a
permanency plan and that the goal of the case should be
changed to adoption. The order noted that Ritter had been
convicted of felony child abuse and sentenced to five
years' imprisonment followed by five years'
supervised probation. Also in February 2016, DHS filed a
petition for termination of parental rights and alleged the
following statutory grounds against Ritter: (1) twelve
months/failure to remedy, (2) sentenced in a criminal
proceeding for a period of time that constitutes a
substantial period of the child's life, and (3)
aggravated circumstances. See Ark. Code Ann. §
9-27-341(b)(3)(B)(i)(a), (viii), and
(ix)(a)(3) (Repl. 2015).
court conducted a termination hearing in April 2016. At the
commencement of the hearing, DHS informed the court once
again that this was an ICWA case, that DHS had been in
contact with the Choctaw Nation, and that Angela Robinson, a
Choctaw Nation representative, wished to participate in the
hearing via telephone.
Mantooth, the family caseworker, testified that referrals
were provided to both parents at the case-plan staffing and
that the parents signed the case plan. According to Mantooth,
Ritter completed one hair-follicle test, which was positive
for THC, but she had no record of him completing any other
requirements of the case plan. She stated that he went to
prison in Oklahoma around the time that the children were
adjudicated dependent-neglected. She also testified that
Ritter would be imprisoned until at least 2020 and that she
did not think reunification with Ritter was a possibility.
Mantooth agreed that there were no services that would make
Ritter an appropriate placement for K.R. given the nature of
the abuse that occurred. She described K.R. as a "sweet
and beautiful" child who was readily adoptable. She also
said that K.R. faced "great risk" if returned to
Ritter, noting the "cruel" and "extreme"
nature of the burns inflicted onto K.R.'s face.
confirmed that she had been in contact with the Choctaw tribe
about the efforts in this case and the services provided. She
explained that K.R. had been placed with two different
relatives at different points in the case, but neither of
those placements was long term, and K.R. was placed in a
foster home. Mantooth said that there were currently no
ICWA-compliant homes in Arkansas where K.R. could be placed
and that DHS was currently working toward placing the child
with relatives in Oklahoma.
Robinson, the Choctaw Nation representative, testified that
she had reviewed the case and prepared written declarations
for the court, which were admitted without objection. She
testified that the Choctaw Nation recommended termination of
parental rights with a goal of adoption. She agreed that DHS
had provided active efforts for the family and opined that
"active efforts have failed." In her written
statement, Robinson stated that she had been in contact with
DHS and had reviewed the juvenile-dependency petition, the
probable-cause report, the adjudication order, and the
permanency-planning order. In her opinion, "returning
the children to the care of their parents would subject the
children to suffer physical and ...