FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO.
60JV-16-963] HONORABLE WILEY A. BRANTON, JR., JUDGE
Tabitha McNulty, Arkansas Public Defender Commission, for
Imbeau, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
M. GLOVER, Judge
Benson appeals the Pulaski County Circuit Court's order
terminating her parental rights to her son, T.M., who was
born on March 24, 2015. On appeal, Benson argues this decision
was in error because the Arkansas Department of Human
Services (DHS) failed to prove it was in T.M.'s best
interest for her parental rights to be terminated.
Specifically, Benson contends it was error to find T.M. would
suffer potential harm if returned to her custody. We affirm
filed a petition for ex parte emergency custody on August 17,
2016. According to the affidavit attached to the petition,
Benson was incarcerated in the Drew County Detention Center
awaiting transfer to a Regional Punishment Facility to serve
a nine- month sentence; T.M. had been living with
Benson's mother, Jerry Benson, during Benson's
incarceration until Jerry Benson passed away; and
Benson's sister, Abigail Benson, began to care for T.M.
after Jerry Benson's death. DHS became involved on August
14, 2016, when the Little Rock Police Department called for
assistance after receiving a call from Michael Grimmer, a
level 3 sex offender, who advised the police he needed
assistance because "dead kids" were in his home.
DHS found Grimmer, Wesley Benson (T.M.'s uncle), and
sixteen-month-old T.M. in the home. Grimmer and Wesley Benson
appeared to be under the influence of intoxicants and unable
to care for T.M., who had what appeared to be a cigarette
burn on the back of his hand allegedly caused by Wesley
Benson. Grimmer advised the officers that Wesley Benson was
keeping T.M. for his sister, who was in prison. Grimmer was
concerned about T.M.'s safety because Wesley Benson took
a lot of pills, drank, and smoked around T.M. The officers
found a pack of diapers, but no baby food or baby clothing;
the clothes T.M. was wearing were dirty; and T.M. had black
dirt in the creases of his neck. DHS removed T.M. due to the
living conditions and the lack of a person who could properly
care for him. Abigail Benson contacted DHS on August 15,
2016, stating T.M. had been with Wesley Benson for only one
day, and she had planned to pick T.M. up from Wesley Benson
the following day.
parte order of emergency custody was entered the same day.
That order noted Benson's prior contact with DHS in
October 2013 in Chicot County for allegations of newborn
illegal-substance exposure concerning another child of
Benson's, A.M.; that case concluded with the termination
of Benson's parental rights and A.M.'s adoption.
was present at the probable-cause hearing held on August 23,
2016. In an order entered September 9, 2016, the circuit
court found probable cause to continue T.M. in DHS custody.
The order again referenced the termination of Benson's
parental rights to A.M. and the fact Benson was currently
was not present at the adjudication hearing held on October
6, 2016, due to the failure to file a transport order to have
her brought to court. The circuit court adjudicated T.M.
dependent-neglected in an order filed October 31 and
continued his custody with DHS, but left reunification as the
goal of the case. The circuit court again made reference to
the prior termination of Benson's parental rights and
noted Benson remained incarcerated.
permanency-planning order filed February 3, 2017, the circuit
court changed the goal of the case from reunification to
termination of parental rights, finding T.M. had been
subjected to aggravated circumstances because it was unlikely
any services to the family would result in successful
reunification within a reasonable period of time as measured
from the child's perspective and consistent with his
developmental needs. In making this decision, the circuit
court relied on the fact Benson had been incarcerated since
June 2016; she was currently serving a six-year sentence in
the Arkansas Department of Correction (ADC), with a transfer
eligibility date of July 2017; and even if she were released
at that time, she would still need six to nine months to
receive services and demonstrate to the court she is a fit
and appropriate parent. The circuit court noted Benson
asserted that the termination of her parental rights in
A.M.'s case was a voluntary surrender. The circuit court
stated termination of parental rights in the present case was
not a foregone conclusion and ordered that if Benson was
released prior to the next hearing, she was to contact DHS so
that services could be provided to her. The circuit court
denied Benson's request for T.M. to visit her while she
was incarcerated, finding it was not in T.M.'s best
interest due to his age and his not knowing Benson.
filed a petition to terminate Benson's parental rights on
February 27, 2017. The grounds alleged by DHS for termination
were Benson had previously had her parental rights
involuntarily terminated as to T.M.'s sibling; subsequent
factors; aggravated circumstances; abandonment; and Benson
had been sentenced in a criminal proceeding for a period of
time that would constitute a substantial period of T.M.'s
life. After a hearing, the circuit court terminated
Benson's parental rights to T.M. in an order filed May 4,
2017, finding DHS had proved all grounds for termination
against Benson except the abandonment ground, which it
dismissed, and that it was in T.M.'s best interest for
Benson's parental rights to be terminated.
termination hearing, Treasure Golden, the DHS caseworker,
testified she was asking the circuit court to terminate
Benson's parental rights because Benson had been
incarcerated not only the entire time T.M. had been in foster
care, but even before T.M. entered foster care; Benson had no
contact with T.M. during the case; Benson had been unable to
participate in any court-ordered services; Benson was still
incarcerated at the time of the termination hearing; T.M.
needed permanency and a stable life; the circuit court had
made a finding of aggravated circumstances; there had been a
previous involuntary termination of Benson's parental
rights to another child; and Benson had been sentenced in a
criminal proceeding for a period of time that constituted a
substantial period of T.M.'s life. Golden said T.M., who
was two at the time of the termination hearing, was doing
well and was playing with other children more. Golden stated
she had had no correspondence with Benson other than court
hearings and a letter from Benson's attorney.
Brown, an adoption specialist, testified that based on
T.M.'s race, age, and medical history, he is adoptable.
She stated there were 585 matches to families interested in