FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15JV-16-47]
HONORABLE TERRY SULLIVAN, JUDGE.
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
A. Sharum, Office of Chief Counsel, for appellee.
D. VAUGHT, JUDGE.
Thomas Welvaert, appeals the Conway County Circuit
Court's termination of his parental rights to his
daughter, A.W. We find no merit in his arguments and affirm.
15, 2016, A.W. and her sibling were removed from their
mother's care. Ultimately, the mother executed consent to
the termination of her parental rights to both children, and
the other child's father executed consent to the
termination of parental rights to that child. This case deals
solely with Welvaert's parental rights to A.W.
was incarcerated in Texas throughout the case. On August 2,
2016, DHS filed a petition to terminate parental rights
alleging that Welvaert had been sentenced in a criminal
proceeding to a period of time which would constitute a
substantial period of the child's life. Ark. Code Ann.
§ 9-27-341(b)(3)(B)(viii)(a) (Repl. 2015). At
the hearing, Welvaert was not present but was represented by
counsel. His attorney stated that, although they had
communicated by mail, he had not been able to talk to
Welvaert via telephone until the previous evening. However,
when the court asked if there was "any reason we
can't go ahead with this hearing, " Welvaert's
counsel said, "No."
earlier adjudication order, the court found that both
juveniles had been subjected to neglect and aggravated
circumstances, in part due to the court's finding that
Welvaert was incarcerated and would not be released until
2030. The evidence at the termination hearing revealed that
he was serving a twenty-five- or thirty-year sentence for
child sexual abuse and that the earliest Welvaert could
potentially be released would be 2021.
Arkansas Department of Human Services (DHS) caseworker
testified that A.W. was in therapeutic foster care but was
adoptable. Thomas Gamble testified that he is Welvaert's
stepbrother and that he was interested in adopting A.W.
However, he had not completed a required home study, had a
criminal history, and admitted that he did not have a bond
with the child. He also testified that his father and his
stepmother (Welvaert's mother) had previously had their
rights terminated to other children and had been convicted of
child endangerment. Gamble stated that Welvaert should never
be around minors and would not have any access to A.W. should
she be placed in Gamble's custody.
court terminated Welvaert's parental rights to A.W. based
on the findings that he had been sentenced to a period of
incarceration that constituted a substantial portion of the
child's life and that termination was in the child's
best interest. On appeal, Welvaert does not challenge those
findings but argues that his due-process rights were violated
because he was not able to meaningfully participate in the
addressing the merits of Welvaert's appeal, we must
address an alleged deficiency in his notice of appeal. In
A.W.'s brief, counsel notes that "the notice of
appeal has only one signature, " in violation of
Arkansas Supreme Court Rule 6-9(b)(1)(B). In his reply,
Welvaert notes that the signature on the notice of appeal is
his, although it is located on the line designated for his
counsel's signature. His attorney failed to sign the
notice of appeal. Welvaert's counsel confessed error in a
motion for rule on clerk, which the Arkansas Supreme Court
granted. Therefore, the case is properly before us.
cases are reviewed de novo. Hune v. Ark. Dep't of
Human Servs., 2010 Ark.App. 543. Grounds for termination
of parental rights must be proved by clear and convincing
evidence, which is that degree of proof that will produce in
the finder of fact a firm conviction of the allegation sought
to be established. Hughes v. Ark. Dep't of Human
Servs., 2010 Ark.App. 526. The appellate inquiry is
whether the trial 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, 248, 947 S.W.2d 761, 763 (1997). 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.
Id., 947 S.W.2d at 763. In resolving the clearly
erroneous question, we give due regard to the opportunity of
the trial court to judge the credibility of witnesses.
Camarillo-Cox v. Ark. Dep't of Human Servs., 360
Ark. 340, 352, 201 S.W.3d 391, 399 (2005). Termination of
parental rights is an extreme remedy and in derogation of a
parent's natural rights; however, parental rights will
not be enforced to the detriment or destruction of the health
and well-being of the child. Meriweather v. Ark.
Dep't of Health & Human Servs., 98 Ark.App. 328,
331, 255 S.W.3d 505, 507 (2007).
acknowledges that inmates do not have a right to attend civil
hearings. Vogel v. Ark. Dep't of Human Servs.,
2015 Ark.App. 671, at 9-10, 476 S.W.3d 825, 830-31. Citing
Vogel, he notes that a parent's absence from a
termination hearing comports with due process only if he or
she is represented by counsel who makes evidentiary
objections, cross-examines witnesses, presents testimony from
the parent that could influence the outcome of the
proceedings, and makes arguments on the parent's behalf.
Vogel, 2015 Ark.App. 671, at 10- 11, 476 S.W.3d at
830-31; see also Santosky v. Kramer, 455 U.S. 745,
752-54 (1982) (recognizing that parents whose rights the
government seeks to terminate must be given due process under
the Fourteenth Amendment). Welvaert argues that his attorney
failed to make evidentiary objections or otherwise adequately
represent him at the hearing, which resulted in a due-process
violation under Vogel when combined with his absence
from the proceedings.
Welvaert never raised this issue below, he acknowledges that
it is barred from appellate review unless we conclude that it
falls within one of the "extremely rare" exceptions
to the contemporaneous-objection rule outlined in Wicks
v. State, 270 Ark. 781, 785, 606 S.W.2d 366, 369 (1980);
specifically, that Welvaert's counsel's deficiencies
constituted "[a]n error that's so flagrant and
egregious that the trial court should've, on its own
motion, taken steps to remedy it." Baker v. Ark.