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Sills v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

January 10, 2018



          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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


         Brett Sills appeals the Craighead County Circuit Court order terminating his parental rights to his son B.S. He argues that there was insufficient evidence to support the grounds for termination and the circuit court's best-interest finding. He also argues that he was denied the most basic elements of due-process when the Arkansas Department of Human Services (DHS) failed to keep him informed of the case progression or to secure his participation in the reunification process. While the due-process arguments raised by Stills gave us pause, we affirm the termination under the facts and arguments as presented to us in this case.

         I. Background

         Brett Sills and Raylin Cox are the parents of B.S., who was born on February 5, 2016. B.S. tested positive for THC at the time of his birth. DHS removed B.S. from the custody of Cox. Sills was incarcerated at the time on a "probation violation."[1]

         At the probable-cause hearing, Sills was present but was not represented by counsel. He was declared the biological and legal father. The court noted that Sills was incarcerated on a "parole violation" and was due to serve a 15-month sentence. Despite the incarceration, the court ordered the standard services (cooperating with the Department; remaining drug free; watching "The Clock is Ticking" video, participating in parenting classes; obtaining and maintaining stable housing and employment, etc.).

         At the adjudication hearing, Sills was again present and still unrepresented. The court entered an adjudication order finding that Sills had been served by certified mail. The court also found B.S. to be dependent-neglected due to parental unfitness and the drug use of the mother and that Sills had not contributed to the dependency-neglect of the child. However, the court further found Sills was not a fit parent for purposes of custody and visitation. The court continued its previous orders and specifically ordered Sills to resolve his criminal issues and to complete the case plan and court orders before placement or visitation would be provided.

         Subsequent to adjudication, the court conducted two review hearings. Sills was not present at either hearing and was not represented by counsel. After each hearing, the court found that he had not complied with the case plan. The court also held a permanency-planning hearing (PPH). Once again Sills was not present or represented by counsel. After the hearing, the court changed the goal of the case to adoption, and an attorney was then appointed to represent Sills. Once again, the court found that Sills had not participated in the case plan or complied with its orders.

         DHS filed a petition to terminate the parental rights of both Cox and Sills.[2] As to Sills, DHS alleged that Sills had abandoned B.S. (Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) (Supp. 2017)); that there were subsequent other factors (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a)); and that Sills was sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child's life (Ark. Code Ann. § 9-27-341(b)(3)(B)(viii)). As for the last statutory ground, DHS alleged that Sills had been incarcerated in the Arkansas Department of Correction since February 18, 2016, following the revocation of probation related to a conviction for robbery. DHS further stated that he was not eligible for release until October 2017 at the earliest.

         The court conducted a hearing on the petition to terminate Sills's parental rights on May 12, 2017.[3] Sills was present for the first time since adjudication and this time was represented by counsel. When DHS attempted to introduce the prior orders of the court as exhibits, Sills's counsel objected to the introduction of the two review-hearing orders and the PPH order on the following basis: Sills had not been transported to court or allowed to participate by telephone; Sills had not been represented by counsel; and Sills was never sent a copy of the orders entered thereafter. The court admitted the evidence over counsel's objection.

         A summary of the evidence and testimony before the court is necessary to understand and address the issues Sills raises on appeal. Sills was the first witness called by DHS. He testified that he had been incarcerated on the day B.S. was born and was not responsible for the child's removal. He continued to be incarcerated in the Arkansas Department of Correction on a probation violation (failure to pay fines), he had been incarcerated for 17 months, but he was set to be released soon. He testified that his expected release date was August 1 but that he fully anticipated to be released mid-June. ...

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