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Swangel v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

March 14, 2018

DONNA SWANGEL APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45JV-15-11] HONORABLE DEANNA SUE LAYTON, JUDGE

          Leah Lanford, 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 children.

          BRANDON J. HARRISON, Judge.

         Donna Swangel appeals the termination of her parental rights to her children J.S., R.M., and A.R. Donna raises three points on appeal: the circuit court lacked jurisdiction to enter a termination order as to R.M.; there was insufficient evidence that a termination was in her children's best interest; and the circuit court did not follow the Indian Child Welfare Act (ICWA). We affirm.

         I. R.M.

         Donna first argues that the circuit court lacked jurisdiction to terminate her parental rights to R.M. because the Arkansas Department of Human Services (DHS) did not file a petition seeking to terminate her rights to R.M., serve her with such a petition, or provide her with any notice that her rights as to R.M. were at issue. In other words, Donna contends that DHS only sought to terminate her parental rights to J.S. and A.R.

         This jurisdictional argument was not preserved. The "defendants" named in the petition were Donna Swangel (appellant), Michael Lendley (putative father of J.S.), Joey Musgrave (R.M.'s legal father), and Richard Rogers (A.R.'s putative father). All three children are listed as respondents in the petition's caption. There is inconsistent language in the petition; sometimes the petition refers to a "juvenile, " sometimes to "juveniles." The petition is not as clear as it ideally should be for such an important legal proceeding, but Donna never objected to the petition in the circuit court or argued that she lacked notice that her parental rights were at risk as to R.M. She defended the case on the merits as to all three children. We therefore hold that she has waived any objection to the form of the admittedly less than razor-sharp petition or that she lacked notice that the proceedings were being used to terminate her parental rights to R.M. Willis v. Ark. Dep't of Human Servs., 2017 Ark.App. 559, at 13 (holding that we will not consider issues raised for the first time on appeal, even ones involving due process).

         II. Best Interest

         Donna's children were removed, in part, because of her suspected drug use (methamphetamine), which was later proved and continued essentially throughout the nearly two years this case was pending. She does not challenge any statutory ground for the termination but does argue that the termination was not in her children's best interest. In Donna's view, terminating her parental rights was a "draconian measure" because two of the children were placed with an aunt, and termination would not have furthered stability or permanency because continued contact with a parent would have been beneficial.

         We review termination-of-parental-rights cases de novo but do not reverse unless the circuit court's findings are clearly erroneous. Miller v. Ark. Dep't of Humans Servs., 2016 Ark.App. 239, at 7, 492 S.W.3d 113, 117. An order terminating parental rights must be based on a finding by clear and convincing evidence that one of the grounds stated in the termination statute is satisfied and that the sought-after termination is in the children's best interest. Id. In making a best-interest determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Id.

         When the termination hearing convened, J.S. and A.R. were living with an aunt, Shannon Estes, who had expressed an interest in adopting them. A.R. has Down Syndrome and is a member of the Choctaw Indian Tribe. J.S. spent time in a therapeutic foster home for some time but was with his aunt when the hearing started because he had improved. R.M. was in therapeutic foster care.

         The court considered Joey Musgrove's evidence that R.M. should live with him in Florida if the court terminated Donna's parental rights. (Recall that he is R.M.'s legal father.) In its termination order the circuit court credited Miranda Zeltner's testimony that Estes wished to adopt the children, and there were no foreseeable barriers preventing an adoption from occurring. The court stated that it was "gravely" concerned about Donna's ongoing drug issues, including dating men who are users. Out of thirty-seven drug tests introduced, twenty-eight were positive for methamphetamine. The court observed that Donna admitted that she had been given notice by her landlord that she was being evicted because of drug use on the premises. The court also found that Donna had obtained illegal substances but lacked electricity, could ...


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