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Willis v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 25, 2017

KELVIN RASHEED WILLIS AND JONATHAN MERCHAND HARRIS APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-15-332] HONORABLE ANNIE POWELL HENDRICKS, JUDGE

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Kelvin Rasheed Willis.

          Dusti Standridge, for appellant Jonathan Harris.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          KENNETH S. HIXSON, Judge

         This is a combined appeal from an order terminating parental rights. Appellant Jonathan Harris appeals from the termination of his parental rights to his son, M.H., who was born on 12/16/2014. Appellant Kelvin Rasheed Willis (hereinafter, Kelvin Rasheed Willis shall be referred to as "Rasheed") appeals from the termination of his parental rights to his daughter, K.W., who was born on 4/8/2016. The mother of both children is Taniah Cotton. Taniah's parental rights were also terminated, but she has not appealed.

         In his appeal, Jonathan challenges the sufficiency of the evidence, arguing that there was insufficient proof of statutory grounds and insufficient proof that termination of his parental rights was in his child's best interest. In Rasheed's appeal, he also challenges the sufficiency of the evidence as to the statutory grounds found by the trial court and the best interest of his child. In addition, Rasheed argues that the trial court erred in proceeding on the termination petition because he was not appointed counsel until after the petition to terminate was filed, and also that he was denied basic due process from the outset of the case. We affirm the termination of both Jonathan's and Rasheed's parental rights.

         We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs., 2013 Ark.App. 715, 430 S.W.3d 851. At least one statutory ground must exist, 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 (Repl. 2015); M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder 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 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, 947 S.W.2d 761 (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. Yarborough v. Ark. Dep't of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).

         This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of M.H. on June 1, 2015. At the time the petition was filed M.H.'s father, Jonathan, was incarcerated after having been recently convicted of delivery of marijuana and sentenced to two years in prison followed by a four- year suspended imposition of sentence.[1] An attached affidavit of a family service worker stated that DHS had removed M.H. from his mother's custody based on the mother's history with drugs, multiple arrests for prostitution, homelessness, and failure to accept DHS services. On the same day the petition was filed, the trial court entered an ex parte order for emergency custody of M.H.

         With respect to M.H., a probable-cause order was entered on July 2, 2015, and an adjudication order was entered on November 10, 2015. The adjudication order adjudicated M.H. dependent-neglected and set the case goal as reunification.

         In a review order dated November 18, 2015 (but not filed until April 12, 2016) the trial court found that M.H.'s mother had complied with none of the case plan, had not remained clean and sober, and had not resolved her criminal troubles. The review order noted that Jonathan had been released from prison on November 4, 2015, was currently living in a halfway house, and was to be discharged from the halfway house in January 2016. The trial court ordered Jonathan to comply with the conditions of his parole and to contact DHS to be assessed for services upon his release from the halfway house.

         While the case involving Jonathan and M.H. was proceeding, the case involving K.W. commenced. On April 11, 2016, DHS filed a petition for emergency custody of K.W. The attached affidavit stated that K.W.'s mother (also the mother of M.H.) had tested positive for drugs throughout her pregnancy, that she was positive for methadone at the time of K.W.'s birth three days earlier, and that an emergency hold of the child was taken at the hospital due to newborn/illegal-substance exposure. The petition stated that the mother was married to Rasheed Wilson[2] and that she identified him as K.W.'s father. The petition stated further that the mother denied knowledge of Rasheed's whereabouts and that, despite reasonable diligence, DHS was unable to ascertain Rasheed's whereabouts or address. On the same day the petition was filed, the trial court entered an ex parte order for emergency custody of K.W. In a probable-cause order dated April 13, 2016 (but not filed until May 12, 2016) the trial court found that the whereabouts of Rasheed Wilson were unknown, and also that the whereabouts of Jonathan Harris were unknown.

         On July 25, 2016, the trial court entered an adjudication order and permanency planning order. In that order, K.W. was found to be dependent-neglected. The trial court stated in the order that K.W. was just over a month old at the time of the hearing (which was held on May 11, 2016) and remained hospitalized receiving treatment for methadone withdrawal. The trial court stated that K.W.'s birth certificate reflected that Kelvin Rasheed Willis was her father, and that a marriage license showed him to be married to K.W.'s mother. The style of the case was modified to identify K.W.'s father by his correct name of Kelvin Rasheed Willis instead of Rasheed Wilson. With regard to Jonathan, the trial court stated that he had been ordered to notify DHS upon his release from the halfway house, that he was released from the halfway house in January 2016, but that he did not contact DHS until May 1, 2016. Jonathan had failed to appear at the hearing despite having notice. The trial court found that the children's mother had not complied with the case plan and that her whereabouts were unknown. The trial court relieved DHS of providing further services to the mother or Jonathan and stated that, unless the whereabouts of Rasheed were ascertained, DHS was unable to provide services to him. The permanency plan for M.H. was termination and adoption, and the permanency plan for K.W. was reunification with the concurrent goal of termination and adoption.

         DHS filed a petition to terminate the parental rights of Jonathan, Rasheed, and the mother, Taniah Cotton, on August 22, 2016. A review hearing was held on August 24, 2016, wherein Rasheed appeared represented by counsel, with Rasheed having been brought there from a local detention facility. In the review order, filed later on October 4, 2016, the trial court stated that Rasheed had been arrested on charges of forgery and for violating the terms of his suspended sentences. With regard to Jonathan, the trial court found that he was incarcerated with an expected release date of August 31, 2016. In the review order, the trial court noted that it had appointed counsel for both Rasheed and Jonathan.

         The termination hearing was held on December 2, 2016. Jonathan did not appear at the termination hearing but was represented by counsel. Rasheed, who was still ...


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