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Brown v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

February 7, 2018

D'ANDRE BROWN, APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD, APPELLEES

         APPEAL FROM THE GREENE COUNTY CIRCUIT COURT [NO. 28JV-14-40] HONORABLE BARBARA HALSEY, JUDGE

          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.

          KENNETH S. HIXSON, Judge.

         D'Andre Brown appeals after the Greene County Circuit Court filed an order terminating his parental rights to A.G. (DOB 12-29-2014).[1] On appeal, appellant argues that the trial court erred in terminating his parental rights because (1) the Arkansas Department of Human Services (DHS) failed to establish that he is A.G.'s parent and (2) there was insufficient evidence to prove the statutory grounds for termination. We affirm.

         I. Facts

         On November 9, 2015, DHS filed a petition for ex parte emergency custody and dependency-neglect. In the affidavit attached to the petition, DHS stated that A.G. was removed from her mother's care and a seventy-two-hour hold was taken because there was a substantial risk of harm to the child. It was determined that Kelli Greenway, A.G.'s mother, was unstable, provided inadequate supervision, and tested positive for illegal drugs. The trial court granted the petition, finding that probable cause existed for the removal. Subsequently, the trial court filed a probable-cause order.

         Because appellant alleges herein that the trial court erred in finding he is A.G.'s parent, a chronological review of the facts and procedure as they pertain to appellant is helpful.

         On December 16, 2015, the adjudication hearing was held, and appellant appeared. The trial court found that the child was dependent-neglected. The trial court specifically found that "Brown, the putative father, HAS NOT presented evidence proving that he has established significant contacts with the juvenile and putative parent rights HAVE NOT attached." The trial court further found that appellant, the noncustodial parent, was not fit for purposes of custody because he was incarcerated in the Greene County jail and had no stable housing. The trial court set the goal of the case for reunification.

         On April 4, 2016, a review hearing was held. While appellant did not appear, DHS did present evidence that appellant did not have a stable home or stable income. The trial court instructed DHS to add appellant as a party, issue a summons, and effectuate service.

         On April 29, 2016, another review hearing was held, and appellant again did not appear. The corresponding order[2] from this hearing states in paragraph 3, "A case plan and DNA results as to D'Andre Brown were also entered into evidence. Brown does not have a stable home or income." Paragraph 9 of the order states, "Based on the results of the DNA testing, D'Andre Brown shall be made a party to the case. DHS shall cause summons to be issued and served."

         Thereafter, on September 14, 2016, DHS filed an amended petition for emergency custody and dependency-neglect and issued a summons to appellant. In this amended petition, DHS added appellant as a party and alleged therein that appellant is the putative father of A.G. DHS stated in its petition that it did not have an address for appellant and requested the trial court to "direct appropriate measures to find and give notice to this person."

         On October 14, 2016, a permanency-planning hearing was held, and appellant did not appear. In the resulting order, appellant was named in the style of the case as A.G.'s "LEGAL FATHER." The trial court found that DHS had made reasonable efforts to finalize a permanency plan and that the parents had not complied with the orders of the court. The trial court changed the goal of the case to "[a]uthorizing a plan for adoption with the department filing a petition for termination of parental rights and completing adoption packets."

         On November 10, 2016, DHS filed a petition to terminate parental rights against both parents. Subsequently, on February 7, 2017, a hearing on the petition to terminate was held. Appellant did appear at this hearing. However, the court found that the "Father is indigent" and that an attorney was appointed to represent him. Having so found, the hearing to terminate the parental rights of both parents was continued.

         On March 10, 2017, the hearing to terminate the parental rights of the parents was held. The parental rights of the mother were terminated. However, the court found that "[b]ecause of a successful challenge to service regarding the father, the court finds that the father is not yet a party to this matter." The termination hearing for appellant was continued. Thereafter, DHS served the petition to terminate to appellant by an appropriate warning order.

         On June 30, 2017, the termination hearing was held for appellant. Appellant appeared in person and by his court-appointed counsel. At the commencement of the hearing, the following colloquy occurred between the court and appellant's counsel:

The Court: Will you find that review order of September 21st that makes a reference to Mr. Brown's legal status?
[Counsel]: Yes, Your Honor.
The Court: So that we can clarify that for this proceeding.
[Counsel]: That's right, Your Honor. There was a question as to the legal status of Mr. Brown under the review order filed September 21st, 2016, paragraph 9. It says based on the results of the DNA testing, D'Andre Brown shall be made a party to the case. DHS shall cause summons to be issued and served.
The Court: All right. The petition, which was filed later, names him as the legal father and rightly so. The Court did not specifically say I was making him legal father on September 21st, '16, but, in fact, that's what I was doing. And the resulting actions were because of that. So the record today should be clear. On September 21st, 2016, I made him the legal father, and I think we all understood that.
. . . .
The Court: [Appellant], earlier, you made reference to a September ...

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