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Fraser v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

September 5, 2018

DAVID FRASER APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE POLK COUNTY CIRCUIT COURT NO. 57JV-15-32] HONORABLE JERRY RYAN, JUDGE

          Dusti Standridge, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          LARRY D. VAUGHT, JUDGE.

         David Fraser appeals the December 5, 2017 order terminating his parental rights to his daughter, A.F. (born December 22, 2009), entered by the Polk County Circuit Court. On appeal, Fraser contends that the circuit court clearly erred in finding that statutory grounds supported termination and that termination was in A.F.'s best interest. We affirm.

         On November 6, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect, alleging that on November 2, 2015, it had removed six-year-old A.F. and her siblings, A.R. (born May 3, 2013) and C.S. (born February 26, 2015), from the custody of their mother, Whitney Reynolds.[1] The affidavits accompanying the petition detailed an extensive substantiated history of maltreatment of Reynolds's children dating back to 2010, which included inadequate food, medical neglect, environmental neglect, inadequate supervision, abandonment, physical abuse, and the children being born with drugs in their systems.

         The affidavits state that Fraser is the father of A.F. and that he resided in the Arkansas Department of Correction (ADC).[2] The affidavits state that in September 2015, the Arkansas Child Abuse Hotline received a report that A.R. had been the victim of physical abuse by a third-party offender. A.R. received medical treatment and was scheduled to receive follow-up treatment; however, Reynolds did not take A.R. to the follow-up appointment. A second follow-up appointment was made, yet Reynolds did not take A.R. to that appointment either. A third follow-up appointment was made during which a hair-follicle sample was taken from A.R. The results of the hair-follicle test were positive for THC and methamphetamine. The affidavits state that when confronted with the test results, Reynolds denied drug use and stated that she had concerns about Chris Sanders being around her children but that he was the only person she had to watch them. The circuit court entered an ex parte order for emergency custody on November 6, 2015.

         On November 19, 2015, Fraser filed a response to DHS's petition, objecting to DHS having custody of A.F. He also requested that A.F. be placed in the custody of her aunt and uncle, that he and A.F. be appointed attorneys, and that a hearing be held on these issues. The circuit court entered a probable-cause order on November 23, 2015, and an adjudication order was entered on December 23, 2015, finding the children dependent-neglected. The court further found that Fraser did not contribute to the dependency-neglect of the children, but the court did not make any findings with respect to his fitness for custody or visitation because he had not appeared before the court and no evidence was available regarding his fitness. The court noted in the adjudication order that Fraser was residing in the ADC. The goal of the case was reunification with the concurrent goal of "permanent guardianship/permanent-relative placement/adoption."

         A review order was entered on March 16, 2016, wherein the circuit court acknowledged receipt of a sentencing order that found Fraser had been sentenced to twenty years in the ADC for possession of a firearm by certain persons. The court noted again that Fraser had not appeared before the court and that Fraser was not fit for visitation or custody. A second review order was entered on June 13, 2016, wherein the court stated that Fraser had not appeared before the court and was not participating in the matter.

         A permanency-planning order was entered on October 11, 2016. Fraser did not appear at the hearing, and the circuit court found that he had not complied with the case plan and had not been participating in the case. A third review order was entered on December 22, 2016. Again, the court found that Fraser did not appear and was not participating in the matter. He was, however, ordered to follow the court orders and the case plan.

         On April 26, 2017, Fraser was appointed an attorney. The next day, April 27, DHS filed a petition to terminate the parental rights of Fraser, Reynolds, and Sanders. On DHS's motion, this petition was dismissed on August 15, 2017. On August 18, 2017, DHS filed a second petition for termination of parental rights. Against Fraser, the petition alleged that termination was supported by the following grounds: (1) noncustodial parent's failure to remedy, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b) (Supp. 2017); (2) willful failure to support, section 9-27-341(b)(3)(B)(ii)(a); (3) other factors, section 9-27-341(b)(3)(B)(vii)(a); (4) sentenced in a criminal proceeding, section 9-27-341(b)(3)(B)(viii); (5) aggravated circumstances, section 9-27-341(b)(3)(B)(ix)(a)(3)(A), (B)(i); and (6) abandonment, section 9-27-341(b)(3)(B)(iv). DHS further alleged that termination of Fraser's parental rights was in A.F.'s best interest.

         The termination hearing was held on November 6, 2017. Tammy Broadway, the DHS caseworker, testified that the children were initially removed from Reynolds's custody on November 2, 2015. Broadway stated that Fraser had been incarcerated during the majority of the case, there was no visitation between Fraser and A.F., and A.F. did not know Fraser as her father "in any way[, ] shape[, ] or form." Broadway stated that no services had been offered to Fraser. She testified that she met him one time at Reynolds's home in September 2016 when he was on parole. She said that she had invited him to a September hearing but that he did not attend. Broadway also stated that she understood since that time, Fraser had been arrested and returned to prison. However, she said that when he was not imprisoned, he did not call either her or DHS to request services. The only time she heard from Fraser was when he mailed her a letter. In response, she mailed him a staffing invitation. Broadway admitted that none of the case plans included Fraser, yet she testified that DHS stood ready to offer him services. Broadway testified that DHS recommended termination of Fraser's parental rights to A.F.

         The CASA volunteer, Ken Marks, also recommended that Fraser's parental rights to A.F. be terminated based on his lack of contact with her, his criminal history, and his incarceration. Marks testified that A.F. had been out of Reynolds's custody ...


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