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Rogers v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

September 20, 2017

BURT ROGERS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-13-582] HONORABLE LEIGH ZUERKER, JUDGE.

          Jonathan R. Streit, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

          LARRY D. VAUGHT, Judge

         Burt Rogers appeals the Sebastian County Circuit Court's order terminating his parental rights to his daughter, A.B. (born July 25, 2007). His sole challenge to the termination order is that there was insufficient evidence of the statutory ground supporting the termination. We affirm.

         A.B.'s case originated with a referral to the child-abuse hotline due to concerns a hospital had regarding the care A.B.'s mother, Markita Bell, was providing to A.B.'s newborn sister, L.B. Thereafter, the Arkansas Department of Human Services (DHS) removed L.B. from the custody of Bell and filed a petition for emergency custody and dependency neglect on October 7, 2013. DHS filed an amended petition for emergency custody and dependency-neglect on November 12, 2013, adding A.B. as a dependent juvenile; however, A.B. was not removed from Bell's custody. Quincy Johnson was listed as A.B.'s putative father.

         On December 10, 2013, L.B. was adjudicated dependent-neglected at the adjudication hearing, and A.B. was deemed dependent-neglected by virtue of L.B.'s adjudication. L.B. remained in foster care, and A.B. remained in Bell's custody as of the review hearing on February 11, 2014, the permanency-planning hearing on August 12, 2014, and the fifteen-month permanency-planning hearing on November 18, 2014. On January 29, 2015, DHS filed a petition for the termination of parental rights against Bell as to L.B. only, and Bell's parental rights as to L.B. were involuntarily terminated.

         On February 12, 2015, DHS received a hotline call alleging that Bell was engaged in prostitution and using illegal drugs while A.B. was with Bell. DHS exercised a seventy-two-hour hold on A.B. on February 23, 2015, and on February 26, 2015, DHS filed a petition for emergency custody and dependency-neglect regarding A.B. An order was entered on April 3, 2015, finding probable cause existed for A.B. to remain in foster care. An adjudication order finding that A.B. was dependent-neglected was entered on May 14, 2015. Johnson was noted as A.B.'s putative father in these orders.

         Another review-hearing order was entered on December 11, 2015. Johnson was listed as A.B.'s putative father, and the circuit court noted Rogers's attendance at hearings on November 10 and 30, 2015. Rogers submitted to DNA paternity testing on January 27, 2016. The following day, Rogers was arrested and was subsequently sentenced to three years in the Arkansas Department of Correction.

         A permanency-planning hearing was held on February 16, 2016, at which time the circuit court set a concurrent goal of adoption. DHS filed a petition on April 26, 2016, seeking to terminate the parental rights of Bell and Johnson to A.B. Rogers was not mentioned. A fifteen-month review order was entered on June 23, 2016, in which the court found that, based on DNA testing, Rogers was A.B.'s legal father. The court set the matter for a termination hearing.

         On May 24, 2016, DHS filed an amended petition for termination of parental rights against Rogers, as the legal father of A.B. With respect to Rogers, DHS alleged that (1) A.B. had lived outside the home of her parents for more than twelve months and that Rogers had willfully failed to maintain meaningful contact with her; (2) factors had arisen subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of A.B. with Rogers was contrary to her health, safety, or welfare, and despite the offer of appropriate family services, Rogers had manifested the incapacity or indifference to remedy the subsequent factors; and (3) Rogers had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of A.B.'s life. Rogers, who was incarcerated at the time, filed a statement indicating that he expected to be released in the summer of 2016 and that he wanted to be considered as a placement option for A.B. The court entered an order appointing counsel for Rogers on July 7, 2016.

         At the November 17, 2016 termination hearing, DHS family-service worker, Lisa Walton, testified that she first met Rogers on August 31, 2015. She advised him that DNA testing was required and had been requested. She further advised Rogers that he needed to obtain appropriate housing, income, and transportation. She told Rogers he needed to attend parenting classes, which she offered. Rogers reported to Walton that he had a home and received SSI benefits for mental-health issues but that he did not have a vehicle. He said that he is a convicted felon, is on parole for two years, and was looking for a job. Rogers told Walton that he already had a mental-health therapist, and Walton recommended that he return to his therapist and get back on his medications. Walton also recommended that he resolve his legal issues.

         Walton testified that she met with Rogers a second time on October 25, 2016. He had just been released from prison the week prior. Rogers advised that he was living with his mother, had SSI, and was looking for a job and an apartment. He also stated that he had completed parenting, anger-management, and communication classes while incarcerated.

         Walton opined that A.B. would be subjected to potential harm if placed in Rogers's custody because they did not have a bond. Walton testified that A.B. is adoptable despite her special needs[1] ...


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