FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FJV-16-285] HONORABLE JIM D. SPEARS, JUDGE
Lawrence, for appellant.
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
BRANDON J. HARRISON, JUDGE.
McKinney appeals the termination of his parental rights to
his three children. He generally challenges the circuit
court's best-interest finding and asserts that the
Arkansas Department of Human Services (DHS) did not prove a
lack of compliance with the case plan. We affirm.
June 2016, DHS exercised a 72-hour hold on three-month-old
A.M. after a medical examination at Arkansas Children's
Hospital revealed bone fractures, head trauma, brain damage,
and a subdural hematoma. See Mercado v. Ark. Dep't of
Human Servs., 2017 Ark.App. 232, 519 S.W.3d 715. A.M. is
the daughter of Francesca Mercado, who was McKinney's
girlfriend at the time. McKinney and Mercado also lived
together. As part of DHS's investigation, it learned that
McKinney's three children, seven-year-old J.M.,
four-year-old K.M.1, and three-year-old K.M.2, either visited
or resided in his and Mercado's home. Due to the
physical abuse by an unknown offender and the magnitude of
A.M.'s injuries, DHS placed a 72-hour hold on K.M.1 and
K.M.2. J.M. was returned to her mother's custody, and DHS
requested that McKinney have no contact with her.
June 2016, DHS petitioned for and was granted an order of
emergency custody and order of protection for J.M., K.M.1,
and K.M.2. In August 2016, the circuit court found probable
cause to continue DHS's custody of K.M.1 and K.M.2 and to
continue the order of protection for J.M. In September 2016,
the court adjudicated the children dependent-neglected. The
court noted that Mercado and McKinney had
married and found that the "juveniles are at
substantial risk of serious harm as a result of physical
abuse of the juveniles' step-sibling, [A.M.], by Kyle
McKinney." McKinney was ordered to obtain and maintain
stable and appropriate housing, income, and transportation;
complete parenting-without-violence classes; submit to a
psychological evaluation and comply with the recommendations;
submit to random drug-and-alcohol screens; and if a positive
test occurs, undergo a drug-and-alcohol assessment.
November 2016, DHS petitioned to terminate McKinney's
parental rights pursuant to Ark. Code Ann. §
9-27-341(c)(2), which provides that a court may terminate the
rights of one parent and not the other parent if the court
finds that it is in the best interest of the child.
See Ark. Code Ann. § 9-27-341(c)(2)(B) (Supp.
2017). As grounds, DHS alleged that a sibling of the children
had been adjudicated dependent-neglected as a result of
neglect or abuse that could endanger the lives of the
children, subsequent factors, and aggravated circumstances.
See Ark. Code Ann. § 9-27-341(b)(3)(B)(vi),
(vii), and (ix).
December 2016, the circuit court entered a review and custody
order. That order placed K.M.1 and K.M.2 in the custody of
their mother, Katessa Mayner, and ordered McKinney to pay
child support. The order also continued custody of J.M. with
her mother, Taryn Price, and ordered McKinney to pay child
court conducted a lengthy termination hearing over several
days in April and May 2017 and also received posttrial briefs
in lieu of closing arguments from the children's ad
litem, DHS, and McKinney. The majority of the testimony
presented at the termination hearing focused on the nature
and extent of A.M.'s injuries and who was responsible for
those injuries. In a letter opinion dated 12 June 2017, the
circuit court specifically found both McKinney and Mercado
not credible. Turning to the day of A.M.'s injuries, the
court found that when A.M. was first presented to the
no one had any plausible explanation as to what might have
caused the injuries. The story was that one of the other
children had fallen on the baby or that a thrown toy had
struck her. These theories were discounted by Dr. Farst and
by common sense. The opinion of Dr. Farst was that if the
baby was fine at breakfast and at noon the injury had to have
occurred when the child was in the care of McKinney that
On June 17, DHS placed a hold and obtained an ex parte order
of custody on two of his children and an order of protection
for the one of which he did not have custody. At this time
the staff at ACH told McKinney that he could not stay there,
as he was not related to [A.M.]. To solve that probem he
married Francesca [Mercado] on June 27, eleven days after
[A.M.] was admitted. He is then the stepfather. It is the
opinion of this court, based on the psychological diagnosis,
that this was in order for him ...