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Howell v. Arkansas Department of Human Service

Court of Appeals of Arkansas, Division IV

February 14, 2018

TIFFANY HOWELL APPELLEE
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICE AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE CLAY COUNTY CIRCUIT COURT, EASTERN DISTRICT [NO. 11EJV-16-7] HONORABLE MELISSA BRISTOW RICHARDSON, JUDGE

          Terry Goodwin Jones, for appellant.

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

          ROBERT J. GLADWIN, Judge

         Tiffany Howell appeals the Clay County Circuit Court's order terminating parental rights to her two children, arguing that the trial court erred by failing to grant her motion for continuance and by finding that it was in her children's best interest to grant the petition to terminate.[1] We reverse, relying on Brown v. Arkansas Department of Human Services, 2013 Ark.App. 201, and hold that the Arkansas Department of Human Services (DHS) did not properly serve the petition to terminate parental rights as required under the governing statute, Arkansas Code Annotated section 9-27-341(b)(2)(A) (Supp. 2017).

          I. Procedural History

         DHS filed a petition for emergency custody and dependency-neglect alleging that it took S.H. (born December 20, 2010), B.H. (born November 25, 2013), and A.B. (born April 27, 2015) into custody because their mother, Tiffany, was arrested when she fled after police tried to initiate a traffic stop, and she was charged with multiple offenses.

         After an ex parte order granting DHS emergency custody on March 8, 2016, a probable-cause order was filed on March 10, 2016, reflecting that Tiffany had been personally served with notice of the hearing on March 8, 2016. She appeared at the probable-cause hearing and was represented by counsel. The trial court ordered that the children remain in DHS custody and that the parents follow specific requirements as set forth in the order.

         An adjudication order filed August 25, 2016, reflects that Tiffany appeared with her attorney, and the trial court found the children dependent-neglected based on the allegations set forth in the petition. The goal of the case was reunification with a concurrent plan for adoption. A March 1, 2017 permanency-planning order states that Tiffany appeared by telephone on that date, and her attorney appeared in person. The trial court ordered DHS to retain custody, and the goal of the case was changed to adoption.[2] DHS was authorized to file a petition for termination of parental rights. The trial court found that Tiffany was not in compliance with the case plan and orders of the court because she was still incarcerated and had not provided proof of working her case plan or following orders. A termination hearing was set for May 11, 2017.

         DHS filed a petition for termination of parental rights on March 7, 2017. It claimed that termination of parental rights was in the best interest of the two children, and three statutory grounds were alleged as to Tiffany.[3] DHS also alleged that Tiffany had been represented by counsel from the beginning of the case, had been served pursuant to Arkansas Rule of Civil Procedure 4 (2017) at the initiation of the proceedings, and the case had been initiated less than two years prior. See Ark. Code Ann. § 9-27-341(b)(2)(A) (requiring that the petition to terminate parental rights may be served under Ark. R. Civ. P. 5 (2017) if the parent was served under Rule 4 at the initiation of the proceeding). Further, DHS alleged that Tiffany would be served in accordance with Rule 5, "specifically service to be effectuated on her counsel, Terry Jones." The certificate of service states that the petition for termination of parental rights was served on Jones by email and lists the email address.

         At the termination hearing held June 27, 2017, Tiffany's attorney moved for a continuance stating,

My client was not served with a petition for the termination while she was in prison and I am asking for a continuance at this time to give me an opportunity to go over this with my client. She is getting out of prison next week and this would also give me additional opportunity to discuss the matter with her. I also never received a copy of the petition.

         DHS opposed the continuance motion, arguing that Rule 5 service was appropriate and that an email was sent. Further, DHS noted that the termination hearing had been originally set for May 11, and Tiffany did not argue at that time that she had not been served with the petition. DHS claimed that the request for continuance was late, and the attorney ad litem also objected to the continuance.

         The trial court denied the motion for continuance, noting its agreement that Rule 5 service was authorized. The court stated that counsel for Tiffany did not dispute that notice was sent but claimed that it was never received by email. The trial court also stated that the case had originally been set on May 11, and on that date, it was agreed that the hearing ...


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