FROM THE CLAY COUNTY CIRCUIT COURT, EASTERN DISTRICT [NO.
11EJV-16-7] HONORABLE MELISSA BRISTOW RICHARDSON, JUDGE
Goodwin Jones, for appellant.
Firth, Office of Chief Counsel, for appellee. Chrestman
Group, PLLC, by: Keith L. Chrestman, attorney ad litem for
J. GLADWIN, Judge
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. 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.
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.
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.
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. 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,
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. 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.
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.
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.
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