FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 16JJV-15-410] HONORABLE CINDY THYER, JUDGE
Standridge, for appellant.
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
LARRYD. VAUGHT, Judge
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
was born on August 23, 2016. At the time, his older siblings
were already in foster care pursuant to an open
dependency-neglect case. The Arkansas Department of Human
Services (DHS) removed M.M. from the physical custody of his
mother, Natasha, 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.
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.
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.
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.
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. 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 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.
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).
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.
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. ...