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Flow v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

February 15, 2017

RONNIE FLOW, JR. APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14JV-15-88] HONORABLE EDWIN KEATON, JUDGE AFFIRMED.

          Dusti Standridge, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          RAYMOND R. ABRAMSON, Judge

         Ronnie Flow, Jr., appeals from the August 5, 2016 Columbia County Circuit Court order terminating his parental rights to his three children, D.F., C.F., and P.F. On appeal, Flow argues that (1) there was not proper service under Arkansas Rule of Civil Procedure 4(d)(4); (2) the circuit court's reliance on prior convictions violated Arkansas Rule of Evidence 404; and (3) the circuit court's failure to grant his motion for continuance was reversible error. For the following reasons, we affirm.

         On November 17, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect with an affidavit attached that detailed allegations that Flow had sexually abused his stepdaughter, W.S., and his biological daughter, D.F. DHS then exercised a hold on all three of Flow's biological children, P.F., C.F., and D.F.[1] The same day, the circuit court entered an order placing the three children in DHS's custody. Flow was arrested on December 31, 2015, on criminal charges arising from the same allegations that opened this case. The circuit court entered an order on January 14, 2016, placing all of the children in their mother's custody.

         On March 10, 2016, the circuit court held an adjudication hearing. Flow, who was incarcerated at the time, refused to be transported, so he was not present at the hearing. The court found the juveniles to be dependent-neglected as a result of sexual abuse and entered a detailed adjudication order reflecting such. The circuit court also found, by a preponderance of the evidence, that Flow had subjected the juveniles to aggravated circumstances.

         A petition to terminate Flow's parental rights was also filed on March 10, 2016. In it, DHS alleged two grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi)(a) (Repl. 2015) (the court has found the juveniles or a sibling dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juveniles' parent or parents or stepparent or stepparents) and under Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3) (the parent has subjected the juveniles to aggravated circumstances).[2]

          The circuit court held a hearing on the petition for termination of Flow's parental rights on May 27, 2016; Flow and his counsel were present. DHS introduced the adjudication order at this hearing. Testimony was presented that the children would be at great risk of being victims of sexual abuse if returned to Flow. Further testimony indicated that Flow remained incarcerated and therefore could not assume custody of the children at that point.

         On August 5, 2016, the circuit court entered an order terminating Flow's parental rights to his three children, D.F., C.F., and P.F. The circuit court found that DHS had proved both grounds for termination by clear and convincing evidence. The circuit court also found that termination was in the best interest of the children, specifically considering adoptability and potential harm. This appeal followed.

         Our standard of review in termination-of-parental-rights cases is well settled; we review these cases de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Smithee v. Ark. Dep't of Human Servs., 2015 Ark. 506, 471 S.W.3d 227. A court must find that at least one statutory ground exists, in addition to a 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(b)(3). 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).

         The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the circuit court to judge the credibility of witnesses. Dinkins, supra.

         In making a "best interest" determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Pine v. Ark. Dep't of Human Servs., 2010 Ark.App. 781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor that the circuit court must consider. Tucker v. Ark. Dep't of Human Servs., 2011 Ark.App. 430, 389 S.W.3d 1. Similarly, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine, supra. ...


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