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Earls v. Arkansas Department of Human Services

Supreme Court of Arkansas

May 3, 2018

JACOB EARLS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN

          APPELLANT APPEAL FROM THE GREENE COUNTY CIRCUIT COURT [NO. 28JV-2014-99] HONORABLE BARBARA HALSEY, JUDGE APPELLEES

          Dusti Standridge, for appellant.

          Callie Corbyn, Office of Chief Counsel, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          KAREN R. BAKER, Associate Justice

         This case stems from the termination of parental rights of appellant, Jacob Earls, to his children, twins S.M. and D.M., both born on July 16, 2014. After the twins tested positive for methamphetamine, appellee, the Arkansas Department of Human Services (hereinafter "Department"), initiated dependency-neglect proceedings on July 30, 2014, and ultimately the termination-of-parental-rights proceedings that are the subject of this appeal.

         On July 27, 2014, the twins were removed from their mother's custody after they tested positive for drugs. On July 31, 2014, the circuit court held a hearing, and in the subsequent order, the circuit court found that probable cause existed to remove the twins from the custody of their mother, Charity Sessums. Sessums's parental rights were also terminated and are not part of this appeal.

          On April 23, 2015, the circuit court entered an adjudication-and-review order finding that the children were dependent-neglected due to the presence of controlled substances in their systems at birth. The circuit court also held that Earls was incarcerated and had been served on January 27, 2015, via service on the warden and that the Department had made reasonable efforts to provide services. The putative fathers were ordered to establish paternity.[1] On May 1, 2015, the DNA test results were filed with the court, and they showed that Earls's probability of paternity was 99.99 percent. On August 28, 2015, the circuit court entered a permanency-planning order. In the order, the circuit court found that Earls had not established significant contacts with the children and his parental rights had not attached. The circuit court found that Earls was incarcerated and that his projected release date was September 7, 2015. Earls did not appeal the permanency-planning order.

         On January 8, 2016, the Department filed a petition for termination. On March 30, 2016, the circuit court held a termination hearing, and on May 26, 2016, the circuit court entered the order terminating Earls's parental rights.

         From the termination order, Earls timely appealed to the court of appeals, which affirmed the circuit court. Earls v. Ark. Department of Human Services, 2017 Ark.App. 53, 511 S.W.3d 373. On March 9, 2017, we granted Earls's petition for review and on May 11, 2017, in Earls v. Arkansas Dep't of Human Servs., 2017 Ark. 171, 518 S.W.3d 81 (Earls I), we reversed and remanded this matter to the circuit court, holding that the circuit court failed to establish Earls's status as a "parent" to the twins; thus, the circuit court could not terminate Earls's parental rights. Upon remand, on June 19, 2017, the circuit court entered an order finding that Earls is the father. Subsequently, the Department filed a petition to terminate Earls's parental rights.

         On August 4, 2017, the circuit court held a hearing on the petition to terminate Earls's parental rights. At the hearing, Earls testified that at the time of the twins' birth he was unaware of their birth. Earls further testified that in mid-August 2014, shortly after their birth, he was incarcerated for failure to register as a sex offender. Earls testified that he had been given an assessment level of 3. Earls testified that when he was 21 years old he had sex with a 13-year-old girl, and was charged with sexual assault in the third degree, entered a negotiated plea, and ultimately was sentenced to five years' imprisonment for his failure to register as a sex offender. Earls testified that he has been incarcerated since August 2014 and has never seen the twins. Earls testified that he was unable to complete any services the Department offered outside prison due to his incarceration. Earls further testified that he had completed classes while incarcerated: a parenting class, an anger-management class, thinking-errors class, and a communication-skills class. Earls testified that he has received mental-health counseling every two weeks at the prison since his incarceration. At the time of the hearing in August 2017, Earls testified that he believed he would be released from incarceration by October 2017. Earls further testified that he was ready to raise the twins and care for them upon his release from prison. Earls testified that he planned to move to Stuttgart and live in an apartment or a rent house owned by his aunt and uncle who live in Stuttgart and also to work for their business, Rice Capital, Inc. Earls testified that if his plans for Stuttgart did not work out, his plan was to move to Little Rock. Earls testified that he planned to live alone in Stuttgart or Little Rock and assumed that his family would be able to help him care for the twins. However, Earls testified that he had not visited with family members about caring for the twins. Earls further testified that he had incurred three separate disciplinary infractions since incarcerated for use of synthetic marijuana. Earls further testified that he acquired additional disciplinary infractions for failure to obey and for insolence to a staff member. Therefore, Earls had been ineligible for early release.

         Kandi Tarpley, a caseworker with the Department's office in Greene County, testified she was the caseworker for the twins' case and met with Earls and went over the case plan. Tarpley further testified that she was not aware of any persons or family members that Earls had suggested the twins be placed with. Tarpley testified that it would be harmful to place the twins with Earls because he was currently incarcerated and did not have solid plans for housing or income upon his release. She further testified that even if he had housing and income, placement with Earls would require more services because he was a level three sex offender, and Tarpley did not believe offering Earls more services would result in the twins being placed with Earls. Tarpley further testified that the twins had been found to be adoptable and that their foster parents would like to adopt the twins; she believed it to be in the best interest of the twins to terminate Earls's parental rights and to allow the children to be adopted. Tarpley also testified that the Department had not offered services to Earls because of his incarceration. Tarpley further testified concerning Earls's conduct in a prior case in which he was named as the father and it was determined that Earls had a substance-abuse problem. Tarpley testified that she was not aware whether Earls had resolved those problems and additional services would be required to help Earls deal with those issues. Tarpley also testified that additional services would be required for the twins to be placed with Earls due to his sex-offender status and that "it would take a while before these twins would be ready to be placed with him, if at all." Tarpley further testified that because of Earls's incarceration he has not been able to work with family services; also, Earls has not met the twins, and the twins needed permanency.

         At the hearing and in its written order on September 25, 2017, the circuit court terminated Earls's parental right to the twins, finding as follows:

Other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in custody of the father is contrary to the juveniles' health, safety, or welfare that that, despite the offer of appropriate family services, the father has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the father's circumstances that prevent placement of the juveniles in the custody of the father. Ark. Code Ann. § 9-27-341 (b)(3)(vii)(a).
. . . .
Specifically, Jacob Earls does not have a relationship with the children. Mr. Earls has not seen, met, talked to, or sent letters to these children. Mr. Earls did not contribute to dependency-neglect, but was unavailable to take custody of the children at the time of the removal. Mr. Earls did not remedy the circumstances which made him unavailable at the time of the removal. Mr. Earls has been incarcerated since October, 2014, which is a substantial period of the juveniles' lives. Mr. Earls has not requested services from the Department since he has been incarcerated. The length of time it would require for Mr. Earls to be released from prison, and then complete services to make himself available for custody of the juveniles is inappropriate.
The Court finds by clear and convincing evidence that it is in the best interest of the juveniles to terminate the parental rights of the father, Jacob Earls. In making this finding, the Court specifically considered the likelihood that the juveniles will be adopted if the termination petition is granted and the potential harm on the health and safety of the juveniles which would be caused by placing custody of the juveniles with the father. The Court finds that placing custody of the juveniles with Jacob Earls would be harmful to the juveniles's health and safety due to: Jacob Earls being incarcerated for a substantial period of the children's lives, he continues to be incarcerated, that he is a level three sex offender, he failed to register as a sex offender, his conduct during his incarceration, his past history of substance abuse, it is unknown if he still has substance abuse issues, and that he has no relationship with these children. The court found these children to be adoptable in a previous order in this case, and constitutes [sic] that these children are adoptable.

          The Court finds that the Arkansas Department of Human Services made reasonable efforts to finalize the permanent placement of the juveniles and the juveniles cannot or should not be placed in the custody of the father.

         On appeal, Earls asserts that the circuit court erred in finding that the statutory grounds for termination of his parental rights had been met under Ark. Code Ann. § 9-27-341 (Supp. 2017) and presents five issues on appeal: (1) the circuit court erred in finding termination of parental rights was met based on the 12-month non-custodial requirement; (2) the circuit court erred in finding termination of parental rights was met based on the subsequent-factors- grounds; (3) the circuit court erred in finding termination of parental rights was met based on the aggravated circumstances; (4) the circuit court erred in finding termination of parental rights was met based on the substantial period of incarceration; and (5) the circuit court erred in finding termination of parental rights was met in the best interest of the children.

         II. Standard of Review

         Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Crawford v. Ark. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). In cases involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. See Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). Termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. L.W. v. Ark. Dep't of Human Servs., 2011 Ark.App. 44, 380 S.W.3d 489. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. ...


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