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Northcross v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

May 23, 2018

FRED NORTHCROSS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE MADISON COUNTY CIRCUIT COURT [NO. 44JV-17-34] HONORABLE STACEY ZIMMERMAN, 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.

          ROBERT J. GLADWIN, Judge

         The Madison County Circuit Court terminated Fred Northcross's parental rights by order filed November 21, 2017. Northcross appeals, arguing that the statutory grounds relied on by the circuit court are not legally applicable to him; thus, he claims that the termination-of-parental-rights (TPR) order must fail. We agree with Northcross's argument and reverse and remand to the circuit court.

         I. Facts and Procedural History

         Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect (DN) on June 6, 2017, alleging in the attached affidavit that Northcross had been arrested for possession of methamphetamine and child endangerment on June 1, 2017. Northcross was identified in the petition as the putative father of two children, C.G., born February 28, 2014, and K.G., born May 11, 2016. The children were with Northcross at the time of his arrest, but he denied knowing them. Their mother, Tracy George, tested positive for methamphetamine and amphetamines when she arrived to retrieve them.[1] She later admitted to daily methamphetamine use. DHS took a 72-hour hold on the children, and the circuit court filed an ex parte order for emergency custody reflecting that DHS had been involved with the family since 2009 and that the family had been provided with counseling, drug screens, and drug rehabilitation in the past. However, these services did not prevent removal, as both parents continued to be involved with drugs as described.

         The probable-cause order states that Northcross is the putative father and that probable cause existed for the children to remain in DHS custody. George and Northcross were ordered to comply with all requirements contained in the order. Northcross was also ordered to resolve all criminal charges.

         In the adjudication-and-disposition order, Northcross was again listed as the putative father. The circuit court found by a preponderance of the evidence that the children were DN due to neglect and parental unfitness, noting the use and dealing of illegal drugs by the parents and Northcross's denial that he knew the children when he was arrested. The circuit court found that the children had been subjected to aggravated circumstances and that there was little likelihood that services to the family would result in successful reunification. The circuit court noted that the parents had their rights previously terminated on another child due to the same issues present in this case.[2]

         DHS filed a TPR petition on July 31, 2017, alleging that Northcross is the putative father and that paternity had not been established. DHS listed the statutory grounds of aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) (Supp. 2017), and prior involuntary termination of parental rights to a sibling of the child, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4). DHS alleged that the children would be subjected to potential harm if returned to the custody of George and Northcross.

         A no-reunification-services and permanency-planning order reiterated that the children had been removed from the home and placed in DHS custody because their parents were using and selling illegal drugs. Further, Northcross was listed as the putative father. The circuit court changed the goal of the case to adoption and found that the parents were not complying with the case plan. Specifically, the circuit court found that Northcross, the putative father, had not complied with any of the court orders or the case plan. The circuit court found that he had made minimal progress toward alleviating the cause of the children's removal from the home and completing the court orders and requirements.

          Northcross was notified of his right to have an attorney represent him at the termination hearing, and he was allowed visitation once a week for one hour. He was also ordered to have a drug-and-alcohol assessment, follow the recommendation, and attend "Celebrate Recovery at the skating rink." Northcross was ordered to submit to DNA testing and resolve the issue of paternity. Northcross was given two weeks to complete the DNA testing and sign a release of information if he were to be accepted into drug court. If accepted into drug court, Northcross was to successfully complete it and follow the rules.

         The circuit court specifically found that DHS proved by clear and convincing evidence that the "mother and father" had subjected the children to aggravated circumstances. Those circumstances were that there was little likelihood that services to the family would result in successful reunification because "the parents" had previously received services for the ...


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