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McKinney v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

May 23, 2018

MAX MCKINNEY APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JJV-15-410] HONORABLE CINDY THYER, JUDGE

          Dusti Standridge, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          LARRYD. VAUGHT, Judge

         Appellant Max McKinney appeals the Craighead County Circuit Court's order terminating his parental rights to his son, M.M., based on its findings that McKinney's rights had previously been involuntarily terminated as to M.M.'s siblings and that termination is in the child's best interest. We affirm.

         M.M. was born on August 23, 2016. At the time, his older siblings were already in foster care pursuant to an open dependency-neglect case.[1] The Arkansas Department of Human Services (DHS) removed M.M. from the physical custody of his mother, Natasha, [2]on September 8, 2016, after M.M. tested positive for opiates and Natasha tested positive for opiates and methamphetamine. On September 15, 2016, the circuit court entered an order finding that probable cause existed for removal. On November 8, 2016, the circuit court adjudicated M.M. dependent-neglected due to "parental unfitness-drug use of the mother" and "siblings in foster care." The circuit court found that McKinney did not contribute to the dependency-neglect but that he was not a fit parent for purposes of custody due to the open dependency-neglect case involving M.M.'s older siblings.

         On January 12, 2017, the circuit court held a review hearing at which it found that McKinney had tested positive for various drugs on January 3, 2017, had not complied with various provisions of the case plan, and had been "inpatient at NEARRC since 1/3/17." The circuit court continued its order making visitation at DHS's discretion with the approval of the attorney ad litem.

         On April 7, 2017, the circuit court held a review hearing at which it found McKinney to be M.M.'s biological and legal father based on the results of DNA testing. The circuit court also found that McKinney had not complied with various provisions of the case plan, including a failure to submit to random drug screens, because he had moved to Mississippi. The circuit court ordered McKinney to resolve his criminal matters and complete out-patient drug treatment.

         On July 27, 2017, DHS filed a petition to terminate McKinney's parental rights. The circuit court continued the permanency-planning hearing until September 21, 2017, and appointed McKinney an attorney. On September 21, 2017, the circuit court held a permanency-planning hearing at which the court changed the goal to adoption.

         On October 16, 2017, McKinney filed an answer to the petition for termination of parental rights in which he argued that the petition did not include the proper statutory citation for grounds and argued that the termination statute is unconstitutional and violates substantive due process.[3] The circuit court held a termination hearing on October 27, 2017, after which it entered a written termination finding that DHS had proved the "prior involuntary termination" ground and that termination was in M.M.'s best interest. The court found that McKinney's history of repeated incarceration[4] impeded his ability to achieve stability. The court also found that McKinney had used drugs for over fifteen years, with his longest period of sobriety ending in 2012, and had not demonstrated sustained sobriety outside the prison setting. McKinney appealed.

         We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). 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. 2017); 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 fact-finder 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 circuit 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); Tucker v. Ark. Dep't of Human Servs., 2011 Ark.App. 430, 389 S.W.3d 1; Pine v. Ark. Dep't of Human Servs., 2010 Ark.App. 781, 379 S.W.3d 703. Credibility determinations are left to the fact-finder. Moiser v. Ark. Dep't of Human Servs., 95 Ark.App. 32, 233 S.W.3d 172 (2006).

         The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Camarillo-Cox v. Ark. Dep't of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Cole v. Ark. Dep't of Human Servs., 2012 Ark.App. 203, 394 S.W.3d 318. A parent's past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep't of Human Servs., 2013 Ark.App. 249, 427 S.W.3d 160. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Pine, supra.

         McKinney's first argument on appeal is that the circuit court erred in finding that returning M.M. to his custody would pose a risk of harm to the child. We hold that there was sufficient evidence to support this finding. The circuit court considered the recent involuntary termination of McKinney's parental rights to M.M.'s siblings, in which we affirmed the risk-of-harm finding based on evidence that McKinney had been in drug treatment only two days, had a long history of leaving rehabilitation programs before successfully completing them, and would likely need more intensive drug treatment than a standard twenty-one-day inpatient rehabilitation program. McKinney, 2017 Ark.App. 475 at 19, 527 S.W.3d at 791. ...


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