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Buck v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

April 18, 2018

JONATHAN JACOB BUCK APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-16-245] HONORABLE ANNIE HENDRICKS, JUDGE

          Tina Bowers Lee, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          PHILLIP T. WHITEAKER, JUDGE.

         Jonathan Jacob Buck appeals a Sebastian County Circuit Court order terminating his parental rights to MT('07), JT('08), MT('09), and JT('14).[1] He argues that the termination order should be reversed because he was denied his statutory right to counsel. Further, because his paternity was never established as to MT('07) and JT('08), he argues that there was insufficient evidence to support termination of his parental rights as to them. Because Buck was denied his statutory right to counsel, we reverse the order terminating his parental rights and remand for further proceedings.

         I. Facts

         Buck is married to Penelope Thomas-Buck, who is the mother of eight children-MT('01), JT('02), MT('04), JT('05), MT('07), JT('08), MT('09), and JT('14). The Arkansas Department of Human Services (DHS) has a history with the family going back to October 2011.[2] Four years later, in October 2015, DHS received a referral alleging environmental neglect regarding Buck and Thomas-Buck. DHS made a true finding of the allegations and a protective-services case was opened in November 2015.

         On May 20, 2016, while the protective-services case was open, DHS investigated a report that a sex offender was residing in the Buck/Thomas-Buck household. Buck was in the home when DHS arrived to conduct its investigation. Both Buck and Thomas-Buck disclosed to DHS that they were aware that their guest is a level 3 sex offender. DHS also found the house to be in a "disgusting, unsanitary and extremely unsafe condition" for the children.[3] Based on the parents' poor compliance with the protective-services case plan, including the deplorable condition of the home, the inability to maintain a clean and appropriate home for the children, and the parents' failure to protect the children from a sex offender, DHS exercised a seventy-two-hour hold on the children and removed the children from both Buck and Thomas-Buck. The court subsequently adjudicated the children dependent-neglected and ultimately terminated Buck's parental rights to MT('07), JT('08), MT('09), and JT('14).

         II. Right to Counsel

         For his first point on appeal, Buck argues that he was denied his statutory right to counsel pursuant to Arkansas Code Annotated § 9-27-316 (Supp. 2017). Under the juvenile code, the State of Arkansas has established that a parent has a right to be represented by counsel at all stages of dependency-neglect proceedings. Ark. Code Ann. § 9-27-316(h)(1)(A) (stating unequivocally that "[a]ll parents and custodians have a right to counsel in all dependency-neglect proceedings"). The State of Arkansas has gone further and established a statutory right to the appointment of parent counsel. Specifically, section 9-27-316(h)(1)(B) provides that parents from whom custody is removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is indigent and counsel is requested by the parent or custodian. In fact, section 9-27-316(h)(1)(C) states that parents shall be advised in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court, of the right to counsel and the right to appointed counsel, if eligible, and that, as required under section 9-27-314, a circuit court shall appoint counsel in an ex parte emergency order and shall determine eligibility at the commencement of the probable-cause hearing. Ark. Code Ann. § 9-27-316(h)(1)(C)(i), (ii).

         Under the facts presented here, Buck was clearly entitled under the statute to appointed counsel from the very outset of these proceedings but was not provided one. Buck was living in the home at the time of removal.[4] DHS filed a petition for emergency custody and dependency-neglect alleging that Buck is the legal father of MT('09) and JT('14) and the putative father of MT('07) and JT('08) and that removal was from both Buck and Thomas-Buck. However, the affidavit DHS attached in support of the petition recited that custody was removed from Thomas-Buck only. The court then entered an ex parte order for emergency custody, containing the language of section 9-27-316(h)(1)(C)-that the parents had a right to an attorney at each stage of the proceedings and that legal assistance could be obtained (1) by retaining private counsel, (2) by contacting Legal Services, or (3) if indigent, by requesting that the court appoint legal counsel. The court then made a preliminary finding based on the affidavit of DHS that the children were removed from the custody of Thomas-Buck, that she was indigent, and that she was entitled to appointed counsel. The court made no such finding as to Buck in the ex parte order.

         A probable-cause hearing was held on June 7, 2016; Buck was present but was not represented by counsel. The court entered an order finding probable cause based in part upon "Jonathan Buck . . . allowing a sex offender to stay in the home with the juveniles" and ordering Buck to comply with certain conditions. The court's probable-cause order does not address Buck's eligibility for appointment of counsel.

         Throughout the remainder of the proceedings (i.e., adjudication, review, case staffing, and permanency planning), Buck was present but unrepresented by counsel. When the court changed the goal to termination of parental rights, Buck was ...


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