FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-16-820]
HONORABLE STACEY ZIMMERMAN, JUDGE
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
J. GLADWIN, JUDGE
James King appeals the March 30, 2018 termination of his
parental rights (TPR) with respect to his minor son, T.K.,
entered by the Washington County Circuit Court. King argues
that the circuit court (1) erred in finding statutory grounds
to support TPR; (2) erred in finding that TPR was in
T.K.'s best interest because it incorrectly analyzed the
potential harm; and (3) committed reversible error when it
did not file the TPR order until fifty-eight days after the
hearing-twenty-eight days beyond the statutory requirement.
Facts and Procedural History
Arkansas Department of Human Services (DHS) exercised a
seventy-two-hour hold on eight-year-old W.K. and
seven-year-old T.K. (half-brothers) on October 24, 2016,
removing them from the custody of their mother, Teilor
Lybrand, after she was arrested on a warrant for child
neglect. It is undisputed that the children were
not in King's custody when they were removed, and the
circuit court recognized that King was not the cause of the
removal. DHS filed a petition for emergency custody, and the
circuit court entered an order on October 27, 2016.
was identified as T.K.'s putative father at the time of
removal, and it was discovered that he was incarcerated in
the Arkansas Department of Correction. King's history
with DHS dates to 2009 when a true finding was made against
him for shaking a child age three or younger and causing
internal injuries and bone fracture-the victim in that
incident was T.K. DHS records indicate that King was
implicated in a total of five reports to the hotline that
ultimately resulted in three true findings.
November 2, 2016, the circuit court held a probable-cause
hearing and found that probable cause to exercise emergency
custody of T.K. existed and continued to exist. King was not
present for that hearing. The first part of the adjudication
hearing occurred on December 13, 2016, and concluded on
January 20, 2017. The circuit court found T.K.
dependent-neglected as a result of neglect and parental
unfitness. King did not appear at the adjudication hearing
although he was served with the summons, petition, and notice
of the hearing.
25, 2017, the circuit court held a review hearing that King
did attend. An acknowledgement of paternity of T.K. was
entered into the record, and the circuit court found that
King was not in compliance with the case plan and court
orders. A permanency-planning hearing was held on October 5,
2017, and the goal of the case was changed to adoption. King
was present at the hearing, and the circuit court appointed
him an attorney. In addition, the circuit court found that
King still was not in compliance with the case plan and court
orders and that he was making only "minimal
filed a TPR petition on December 29, 2017, collectively
against Lybrand, Whittmore, and King, with respect to W.K.
and T.K., alleging Ark. Code. Ann. §
9-27-341(b)(3)(B)(vii)(a) (Supp. 2017)--the
That other factors or issues arose subsequent to the filing
of the original petition for dependency-neglect that
demonstrate that placement of the juveniles in the custody of
the parents is contrary to the juveniles' health, safety
or welfare and that despite the offer of appropriate family
services, the parents have manifested the incapacity or
indifference to remedy the subsequent issues or factors or
rehabilitate the parents' circumstances which prevent the
placement of the juveniles in the custody of the parents.
petition also provided from the permanency-planning order,
specifically with respect to King:
The Court also found that "James King has not complied
with all the court orders and the case plan. Specifically-Mr.
King is not in a situation where he can provide what these
boys need. He cannot meet the needs of both children, or even
the needs of [T.K.]. Mr. King has not demonstrated that he
can maintain stability. Mr. King has not been in compliance
once in this case." Mr. King did not begin to
participate in any services offered by the Department until
sometime after the Review Hearing, held before this Court on
May 25, 2017. At that Hearing, the Court found that "Mr.
King has not availed himself to this Court or the Department.
He has not participated in services.'' It should
be noted that Mr. King did not participate in services due to
his being incarcerated at the Arkansas Department of
Correction for Domestic Battery 2nd, with [T.K.] as the
victim of that crime. Mr. King is currently on parole until
The juveniles could not safely be placed in the custody of a
parent at any point during the life of this case, due to the
parents' noncompliance and poor choices. Despite the
offer of appropriate family services-including home visits,
case management, foster-care services, counseling referral,
drug and alcohol assessment referral, and random drug
screens-Mother, James King, and Daniel Whittmore have all
demonstrated either that they are either unwilling or unable
to remedy the subsequent issues that prevent the juveniles
from being placed in their custody. No parent in this case
has shown that they can provide stability for the juveniles
or protect the juveniles and keep them safe from harm.
(Emphasis in original TPR petition.)
January 31, 2018, the circuit court held a TPR hearing.
Whitney Muller, the assigned family-service worker in this
case since April 2017, testified that the children were in
their fourth foster-home placement and had been there since
August 2017. Muller testified that they are doing "very,
very well." She described the children's progress
since she was assigned, stating that at both boys were very
shy and quiet. She explained that during their current
placement, they had transformed and had become engaging,
talkative, friendly, and excited. Their teachers told Muller
that they had made great strides academically and socially
after having been below grade level.
testified that DHS had not considered a trial placement with
Lybrand because she had not complied at any point during this
case. She also explained that DHS had not been able to place
the boys with King because of his history of true findings of
having shaken T.K., causing a subdural hematoma and bone
fracture. She confirmed that King had been arrested, charged,
and incarcerated for domestic battery due to the incident
that resulted in these true findings. Although Muller
acknowledged that King had been in nearly full compliance
since the last hearing, she clarified that over the entirety
of the case there had never been a point in which he had been
in full compliance.
respect to T.K., Muller recommended that he remain with DHS;
that at no point would it be safe for him to return to
Lybrand's custody-that her rights be terminated; that due
to the true findings against King, T.K. should not be placed
in his custody out of concern for his safety; and that it was
not in his best interest to ever be in King's custody.
explained that T.K. was placed in resource services for
reading, received occupational therapy where he works on
skills that he would utilize in the classroom, such as
handwriting, and had been evaluated to need vision therapy.
She told the court that the special services T.K. received
did not, in any way, prevent him from being adoptable.
boys' foster mother-since their placement on August 11,
2017-testified and corroborated Muller's testimony
regarding the boys' progress and changes since coming
into her care. She further explained that other issues, such
as day and night wetting; various fears; and explosive
behaviors-which happened multiple times a day, including at
school; and an inability to express emotions had greatly
subsided. She acknowledged that T.K. does sometimes pout or
cry but that he is able to talk through what is going on and
is working with his therapist to talk about emotions and how
he is feeling. She confirmed that the boys are now outgoing,
happy, smiling, and making eye contact. They talk to family
and friends, are engaging at school, and are making good
progress in school.
specified that T.K. is in special education at school and
that he is reading below a kindergarten grade level in the
second grade. T.K. had a full psycho-educational evaluation
through the school, and it found that he has special needs
due to traumatic brain injury. He receives services for
reading and math, resource services an hour a day,
occupational therapy, individual help in the classroom, and
participates in a home program for reinforcement. T.K.
requires vision therapy because his eyes and brain are not
able to work together to track from left to right, which is
thought to also be due to the previous brain injury.
foster mother confirmed that if the circuit court were to
terminate parental rights, it is her desire to adopt both
W.K. and T.K. She assured the court that the boys had bonded
not only with her but also with her husband and two
biological sons. She said that they have no behavioral issues
or medical needs that would prevent someone from adopting
them should she, for some reason, be unable to adopt them.
testified, confirming his subsequent incarceration for
third-degree battery from mid-June 2016 through January 2017
after a fight with Lybrand. He then attempted to explain the
incident that resulted in the true findings of abuse in 2009,
stating that he had shaken T.K. when he awoke to find
two-month-old T.K. unresponsive in the bed with him, afraid
for T.K.'s life. He did not take T.K. to the hospital
until two days later. He pled guilty after being arrested and
was incarcerated for ...