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Brinkley v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Divisions I II, IV

November 15, 2017

TIMOTHY BRINKLEY AND DORLETHA BRINKLEY LAMBERT APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JV-15-173] HONORABLE MELISSA BRISTOW RICHARDSON, JUDGE

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant Dorletha Brinkley Lambert.

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Timothy Brinkley.

          Mary Goff, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          sKENNETH S. HIXSON, Judge

         Appellants 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.

         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 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 children.

         The 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.

         On June 30, 2015, the trial court entered an adjudication order adjudicating the children dependent-neglected. The goal of the case was reunification.

         A 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.

         On 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.

         DHS 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.

         On 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.

         The 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 ...


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