FROM THE GREENE COUNTY CIRCUIT COURT [NO. 29JV-14-99]
HONORABLE BARBARA HALSEY, JUDGE
Lanford, Arkansas Public Defender Commission, for appellant.
Firth, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
R. BAKER, Associate Justice.
appeal stems from the termination of parental rights of
appellant, Jacob Earls, to his children, twins S.M. and D.M.,
both born on July 16, 2014. After the twins tested positive
for methamphetamine, appellee, the Arkansas Department of
Human Services (hereinafter "DHS"), initiated
dependency-neglect proceedings on July 30, 2014, and
ultimately the termination of parental rights proceedings
that are the subject of this appeal.
27, 2014, the twins were removed from their mother's
custody after they tested positive for drugs. On July 31,
2014, the circuit court held a hearing, and in the subsequent
order, the circuit court found that probable cause existed to
remove the children from the custody of their mother, Charity
Sessums. Sessums's parental rights were also terminated
and are not part of this appeal. At the hearing, the circuit
court recognized that Earls is a putative father, that his
whereabouts are unknown, that he had not been served, and
that he was not present for the hearing. On August 19, 2014,
the circuit court ordered DHS to develop a case plan and make
diligent efforts to discover Earls's location, and Earls
was ordered to establish paternity. In its order, the circuit
court also adjudicated the children dependent-neglected and
ordered DHS to provide standard welfare services and develop
an appropriate case plan.
January 12, 2015, DHS filed an amended petition for
dependency-neglect. Earls's address was listed in the
amended petition, and "abandonment" was added to
the grounds supporting DHS's assertion of
dependency-neglect. On January 13, 2015, DHS filed a second
amended petition and explained that DHS had concerns about
service of process and was seeking a new adjudication on the
parents. On the same date, DHS filed a motion on Earls's
behalf requesting that the circuit court order a DNA test to
establish Earls's paternity. On January 15, 2015, the
circuit court granted the motion. On March 31, 2015, Earls
filed a pro se answer to the second amended petition for
dependency neglect and provided several relatives who he
believed would be placement options for the children.
April 23, 2015, the circuit court entered an
adjudication-and-review order finding that the children were
dependent-neglected due to the presence of controlled
substances in their systems at birth. The circuit court also
held that Earls was incarcerated and had been served on
January 27, 2015, via service on the warden and that DHS had
made reasonable efforts to provide services. The putative
fathers were ordered to establish paternity. On May 1, 2015,
the DNA test results were filed with the court, and they
showed that Earls's probability of paternity was 99.99
percent. On August 28, 2015, the circuit court entered a
permanency-planning order. In the order, the circuit court
found that Earls had not established significant contacts
with the children and his parental rights had not attached.
The circuit court found that Earls was incarcerated and that
his projected release date was September 7, 2015. Earls did
not appeal the permanency-planning order.
January 8, 2016, the Department filed a petition for
termination. In its petition it cited two statutory grounds:
(1) Arkansas Code Annotated section
9-27-341(b)(3)(B)(i)(b)(Repl. 2015) that the
children had lived out of the home of the noncustodial parent
for twelve months, and despite meaningful efforts by the
Department to rehabilitate Earls and correct the conditions
that prevented placement with Earls, the conditions had not
been remedied by him; and (2) Arkansas Code Annotated section
9-27-341(b)(3)(B)(ii)(a) that the children had lived
outside the parents' home for twelve months, and that
Earls had failed to provide financial support or maintain
meaningful contact with the children. On February 25, 2016,
the circuit court issued a "Termination of Parental
Rights Warning Order" and listed Kevin Myers and Jacob
Earls each as "Legal/Putative Father."
March 30, 2016, the circuit court held a termination hearing.
Earls and Bobby Lindsey were both listed on the petition as
the "legal father." Earls appeared and was
represented by counsel. Marsha Bobo, the family service
worker assigned to the case, testified that she had had no
contact with Earls because he was incarcerated. She also
testified that no services had been provided to Earls because
his incarceration prevented DHS from providing him services.
Bobo further testified that the Arkansas Department of
Correction offered some of the same services that DHS
provided, such as parenting classes and counseling, but she
did not know if DHS had contacted Earls regarding the
services offered at the Cummins Unit, and she confirmed that
his case file did not mention any discussion of services.
Bobo further testified that she was unaware of Earls's
contacting DHS or of any requests for visitation with the
children. Bobo testified that Earls could have contacted DHS
and she would have been made aware of it. Bobo testified that
she was made aware at the hearing that Earls was the
biological father but had never had any meaningful contact
with the twins.
Earls testified that he would like the twins to be placed in
his custody when he is released from prison. He testified
that he thought he would be released in two to three months,
but his sentence that was issued on December 22, 2014, was
for 5 years. Earls testified that he received a letter dated
September 17, 2014, notifying him that the children were in
DHS custody and inviting him to a "family centered
meeting." Earls testified that when he arrived at the
scheduled time of 3:00 p.m. he discovered that the meeting
had already taken place at 8:00 a.m. that morning. Earls
testified that he was served with a case plan, but that there
were requirements in it he could not meet, such as watching
the video "The Clock is Ticking" and going to
counseling in Paragould. Earls further testified that he had
contacted DHS during the case and had requested a DNA test by
filing a motion with the court. Earls testified that he had
written letters to legal counsel for DHS and the Office of
Child Support Enforcement. He also testified that he had
taken three classes since he had been incarcerated but that
the parenting classes were "backlogged" and he
could not get a place in them.
close of the hearing, Earls moved to dismiss and argued that
DHS had not made any efforts to provide him services because
he was incarcerated and also found that he failed to maintain
meaningful contact with the children. Earls also argued that
Arkansas Code Annotated section
9-27-341(b)(3)(B)(ii)(a) could not be cited as
grounds to support termination, because he was indigent and
incarcerated and therefore unable to support his children
financially. Earls argued that DHS's allegation that
Earls failed to maintain meaningful contact with his children
was incorrect because he had attempted to contact DHS
regarding his children several times. Further, the attorney
ad litem asserted that although DHS had not made efforts
regarding Earls, it was not DHS's fault that the
condition of his incarceration had not been remedied. The
circuit court denied Earls's motion to dismiss and
terminated his parental rights. On May 26, 2016, the circuit
court entered the order terminating Earls's parental
the termination order, Earls timely appealed to the court of
appeals, which affirmed the circuit court. Earls v. Ark.
Dep't of Human Servs., 2017 Ark.App. 53., ___ S.W.3d
___. On March 9, 2017, we granted Earls's petition for
review, and we review the case as if it were originally filed
in this court. On appeal, Earls asserts that the circuit
court erred in finding that the statutory grounds for
termination of his parental rights had been met under Ark.
Code Ann. § 9-27-341 (b)(3)(B)(i)(b) and
of parental rights is an extreme remedy and in derogation of
the natural rights of the parents. Crawford v. Ark.
Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310
(1997). In cases involving the termination of parental
rights, there is a heavy burden placed upon the party seeking
to terminate the relationship. See Bush v. Dietz,
284 Ark. 191, 680 S.W.2d 704 (1984). Termination of parental
rights is a two-step process that requires the circuit court
to find that the parent is unfit and that termination is in
the best interest of the child. L.W. v. Ark. Dep't of
Human Servs., 2011 Ark.App. 44, 380 S.W.3d 489. The
first step requires proof of one or more of the statutory
grounds for termination. Ark. Code Ann. §
9-27-341(b)(3)(B). The second step requires consideration of
whether the termination of parental rights is in the
juvenile's best interest. Ark. Code Ann. §
we review termination-of-parental-rights cases de novo.
Dinkins v. Ark. Dep't of Human Servs., 344 Ark.
207, 40 S.W.3d 286 (2001). Grounds for termination of
parental rights must be proved by clear and convincing
evidence. M.T. v. Ark. Dep't of Human Servs., 58
Ark.App. 302, 952 S.W.2d 177 (1997). The question on appeal
is whether the circuit court's finding that a disputed
fact was proved by clear and convincing evidence is clearly
erroneous, giving due regard to the opportunity of the trial
court to judge the credibility of the witnesses. Id.
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. Dinkins, supra.
Clear and convincing ...