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Kohlman v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

February 28, 2018

STEVEN KOHLMAN APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-16-181] HONORABLE SHANNON L. BLATT, JUDGE

          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          KENNETH S. HIXSON, JUDGE.

         Appellant Steven Kohlman appeals from the termination of his parental rights to his children J.K., As.K., Au.K., and B.K., who range in age from three to seven years old.[1]On appeal, Steven argues that he was denied due process because he was not made a party or offered services until the petition to terminate his parental rights was filed, and he also argues that the termination order should be reversed because there was insufficient proof of statutory grounds or that termination was in the children's best interest. We affirm.

         We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs., 2013 Ark.App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2015); M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006).

         This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of the children on April 4, 2016. The petition named Kathy as the children's mother and Steven as their putative father. An attached affidavit of a family-service worker stated that it had been reported that the children had been left with a babysitter for three days and that Kathy was supposed to get them but never showed up. It was also reported that Kathy used drugs. The worker made contact with the babysitter and found that the children were safe and being cared for by her. The babysitter had already made arrangements with the children's paternal grandfather, Robert Kohlman (appellant's father), for Robert to pick the children up and take them to his home. At that time, DHS decided that it would allow Robert to take his grandchildren to his home. However, before Robert arrived to get the children, Kathy took the children from the babysitter and went to a motel under a false name. On the next day, the family-service worker located the children at the motel, and they were again in the care of the babysitter. Kathy was away from the hotel room, but she returned and was drug tested. Kathy tested positive for multiple controlled substances including methamphetamine, THC, and opioids. The babysitter also tested positive for drugs. The worker made contact with Steven, who had recently been arrested and incarcerated for failure to appear. Steven stated that he had left the children in the babysitter's care prior to his incarceration but that he did not know she used drugs. The affidavit also stated that DHS had a previous history with the family. In the previous protective-services case, there had been true findings against Steven for inadequate supervision of J.K. in 2011 and physical abuse committed against As.K. in 2012.

         On April 4, 2016, the trial court entered an ex parte order for emergency custody of the children. In the emergency order, the trial court found that removal of the children was necessary to protect their health and safety.

         A probable-cause order was entered on April 27, 2016. The probable-cause order stated that Steven was the putative father and had appeared at the probable-cause hearing. The trial court ordered Steven to submit to genetic testing.

         The trial court entered an adjudication order on June 7, 2016, finding the children to be dependent-neglected. The goal of the case was a concurrent goal of reunification and permanent relative placement. A review order was entered on December 14, 2016, wherein the goal of the case was changed to reunification with the concurrent goal of termination of parental rights and adoption. In the review order, the trial court found that Kathy had no income, no transportation, had not complied with the case plan, and had consistently tested positive for illegal drugs. The review order indicated that Steven was living with his father and had not availed himself of services. The trial court did, however, indicate that Steven had submitted to random drug screens (which were negative) and had exercised visitation with the children (but had appeared at visitation intoxicated).

         In a permanency-planning order dated February 6, 2017 (but not entered until March 28, 2017), the trial court found that DNA testing had confirmed Steven to be the children's father, and thus the court found Steven to be the legal father. The trial court appointed Steven counsel. The trial court found that both parents had not availed themselves of services and that Kathy continued to test positive for illegal drugs. The case goal was changed to termination of parental rights and adoption.

         On March 15, 2017, DHS filed a petition to terminate both parents' parental rights. The termination hearing was held on July 10, 2017.

         On August 16, 2017, the trial court entered an order terminating the parental rights of both Kathy and Steven. The trial court found by clear and convincing evidence that termination of parental rights was in the children's best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii). With respect to ...


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