FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 16JV-15-173] HONORABLE MELISSA BRISTOW RICHARDSON, JUDGE
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
appellant Dorletha Brinkley Lambert.
Bowers Lee, Arkansas Public Defender Commission, for
appellant Timothy Brinkley.
Goff, Office of Chief Counsel, for appellee. Chrestman Group,
PLLC, by: Keith L. Chrestman, attorney ad litem for minor
sKENNETH S. HIXSON, Judge
Dorletha Brinkley Lambert and Timothy Brinkley appeal from
the termination of their parental rights to their three
children, T.M.1, T.M.2, and T.M.3, who are now ages nine,
eight, and six. On appeal, Dorletha argues that there was
insufficient evidence to support the termination of her
parental rights because there was a failure of proof as to
the statutory grounds found by the trial court. In his
appeal, Timothy also challenges the sufficiency of the
evidence, arguing that there was insufficient proof of the
statutory ground found by the trial court pertaining to him.
In addition, Timothy argues that the trial court erred in
proceeding on the petition to terminate his parental rights
because he was not appointed counsel until immediately before
the termination hearing. Finally, Timothy contends that it
was error to terminate his parental rights because he was not
served with the case plan or relevant pleadings, and because
his attendance or participation was not secured at any
hearing before the termination hearing. We affirm the
termination of Dorletha's parental rights. However, based
on our conclusion that the trial court clearly erred in
finding sufficient proof of a statutory ground as to Timothy,
we reverse the termination of his parental rights.
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).
case was initiated by appellee Arkansas Department of Human
Services (DHS) when it filed a petition for emergency custody
of the three children on May 11, 2015. When the petition was
filed, the children were living with Dorletha in Jonesboro,
Arkansas, and Timothy was incarcerated in Texarkana, Texas.
An affidavit of a family service worker stated that the three
children had been left unsupervised and locked out of their
house for more than two hours, and when Dorletha came home
she told the worker that she had been at her aunt's house
across town. Dorletha was arrested and charged with three
counts of first-degree endangering the welfare of a minor. On
the same day the petition was filed, the trial court entered
an ex parte order for emergency custody of the three
trial court entered a probable-cause order on May 12, 2015.
In the probable-cause order, the trial court ordered the
parents to cooperate with DHS, comply with the case plan,
remain drug free, submit to a drug-and-alcohol assessment,
and complete parenting classes. The parents were also ordered
to maintain stable housing and employment, and to resolve all
outstanding criminal matters.
30, 2015, the trial court entered an adjudication order
adjudicating the children dependent-neglected. The goal of
the case was reunification.
review order was entered on November 3, 2015, wherein the
trial court found that Dorletha was in noncompliance with the
case plan due to a positive drug screen and her failure to
attend drug treatment. The order indicated that Timothy did
not appear at the hearing, and the trial court found that
Timothy had participated in none of the case plan.
April 28, 2016, the trial court entered a permanency-planning
order finding that Dorletha was in compliance with the case
plan but needed to resolve her criminal matters, including a
DWI charge. The order again indicated that Timothy did not
appear at the hearing, and the trial court found that Timothy
had participated in none of the case plan. In the
permanency-planning order, the goal of the case continued to
be reunification with Dorletha. However, in a
fifteen-month-review order entered on July 21, 2016, the
trial court authorized DHS to file a petition to terminate
parental rights. In that order, it noted that Timothy again
did not appear, and under section 8, "The court finds
that the parents have participated in the case as follows,
" the trial court noted that Dorletha was currently
incarcerated and facing criminal charges for both DWI and
aggravated assault; Timothy was not mentioned at all.
filed a petition to terminate both parents' parental
rights on September 14, 2016. The termination hearing was
scheduled for October 18, 2016. However, on the day of the
scheduled termination hearing, the trial court entered an
order of continuance wherein it rescheduled the hearing for
November 18, 2016, appointed counsel to represent Timothy at
the hearing, and instructed counsel to arrange for
Timothy's transportation from jail to the hearing. The
termination hearing was held on November 18, 2016, with both
Dorletha and Timothy present and represented by counsel.
March 2, 2017, the trial court entered an order terminating
Dorletha's and Timothy's parental rights to the three
children. The trial court found by clear and convincing
evidence that termination of parental rights was in the
children's best interest, and the trial court
specifically considered the likelihood that the children
would be adopted, as well as the potential harm of returning
them to the custody of their parents as required by Arkansas
Code Annotated section 9-27-341(b)(3)(A)(i) & (ii) (Repl.
2015). The trial court also found, with respect to Dorletha,
clear and convincing evidence of the following two statutory
grounds under subsection (b)(3)(B):
(i)(a) That a juvenile has been adjudicated by the
court to be dependent-neglected and has continued to be out
of the custody of the parent for twelve (12) months and,
despite a meaningful effort by the department to rehabilitate
the parent and correct the conditions that caused removal,
those conditions have not been remedied by the parent.
. . . .
(vii)(a) That other factors or issues arose
subsequent to the filing of the original petition for
dependency-neglect that demonstrate that placement of the
juvenile in the custody of the parent is contrary to the
juvenile's health, safety, or welfare and that, despite
the offer of appropriate family services, the parent has
manifested the incapacity or indifference to remedy the
subsequent issues or factors or rehabilitate the parent's
circumstances that prevent the placement of the juvenile in
the custody of the parent.
trial court found that Dorletha had been incarcerated
seventeen times during the case, had consistently minimized
her arrests, and had a long and unresolved history of alcohol
abuse. As to Timothy, the trial court found ...