FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36JV-16-38]
HONORABLE KEN D. COKER, JR., JUDGE
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R.
Streit, for appellant.
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
MARK KLAPPENBACH, JUDGE
Ivan Mitjans appeals the order of the Johnson County Circuit
Court terminating his parental rights to his children, JH and
SH. Mitjans contends that there was insufficient evidence to
support terminating his parental rights and that his
due-process rights were violated. We affirm.
JH and one-year-old SH were removed from the legal custody of
their mother, Breonna Hogue, on May 6, 2016. The Arkansas
Department of Human Services (DHS) exercised an emergency
hold on the children after their infant half-brother IH was
discovered to have suffered physical abuse, medical neglect,
and inadequate supervision while in the care of Hogue and
IH's putative father, Lamar Williams. JH and SH were
with Mitjans when DHS attempted to place the hold on them,
and after some resistance, Mitjans brought them to the DHS
office. Mitjans attended the probable-cause hearing on May
16, 2016, where the court ordered him to submit to random
drug screens as requested by DHS, to attend and complete
parenting classes, to obtain and maintain stable and
appropriate housing, and to obtain and maintain stable and
SH were subsequently adjudicated dependent-neglected on the
basis that they were at substantial risk of serious harm due
to the abuse of their sibling, IH. Mitjans did not attend the
adjudication hearing or any of the seven review and
permanency-planning hearings that followed. In November 2017,
DHS filed a petition to terminate the parental rights of
Mitjans, Hogue, and Williams. Mitjans appeared at the
December 2017 termination hearing and requested an attorney.
The court granted a continuance as to Mitjans but terminated
the rights of Hogue and Williams. Mitjans was appointed an
attorney, and the hearing to terminate his rights was held on
February 20, 2018.
and Mahogany Smith, the caseworker, were the only witnesses
at the hearing. Shortly after the probable-cause hearing,
Mitjans moved to Miami, Florida, to live with his family
because he was on parole and did not have anyone in Arkansas
with whom he could live. Smith said that Mitjans was aware of
his court-ordered obligations that were announced at the
probable-cause hearing and had been given a copy of the
order, but he had not complied. Smith described her contact
with Mitjans as "hit and miss," noting that he had
not had a telephone for a long time. Mitjans had used
FaceTime to communicate with the children once or twice a
month when they had visits with Hogue. Smith said that this
contact was sporadic and that he had not had any in-person
contact with the children since May 2016.
said that in June 2017, she started requesting information
for an ICPC home study on Mitjans's home in Florida, but
Mitjans had not complied. He had finally returned some of the
necessary forms four days before the termination hearing, but
they were incomplete. Smith testified that Mitjans did not
seem concerned with having to "step up" because he
believed Hogue would have the children returned to her.
Mitjans said that he lived in a three-bedroom, one-bathroom
home in Miami with his parents and adult sister, who was a
felon and had declined to provide her information for the
background checks required for the home study. He believed
that there was enough room in the home for the children and
said that his son could sleep with him and his daughter could
sleep with his mother. He said that when he had enough money
saved he planned to move out and marry his girlfriend and
could possibly move to Arkansas; however, he had not been
able to save any money yet. He did not have a car.
had convictions for hot checks and residential burglary and
said his parole was ending in two months. He said that he
understood the court's orders but suggested that Smith
had discouraged him from doing the things required to get
placement of the children due to the fact that he is a felon
and Smith had been trying to reunite the children with Hogue
Mitjans said that he had been employed at his current job for
almost six months and had held a job prior to that for six to
eight months before leaving to earn more money. He denied
that Smith had requested paystubs. DHS had been unable to
give Mitjans random drugs screens, but he testified that he
tested negative when screened every other month for his
parole. Mitjans had contacted the DHS office in Miami a few
weeks before the termination hearing regarding parenting
classes; Smith said that she had told him to do so in 2016.
Smith said that the children were very likely to be adopted
and were currently placed in a foster home willing to adopt
them along with their half sibling, IH. The circuit court
ruled from the bench that it was terminating Mitjans's
rights based on the "subsequent factors" ground.
review termination-of-parental-rights cases de novo.
Sarut v. Ark. Dep't of Human Servs., 2015
Ark.App. 76, 455 S.W.3d 341. 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). In making a "best
interest" determination, the circuit court is required
to consider two factors: (1) the likelihood that the child
will be adopted and (2) the potential of harm to the child if
custody is returned to a parent. Sarut,
supra. The appellate inquiry is whether the circuit
court's finding that the disputed fact was proved by
clear and convincing evidence is clearly erroneous.
Id. Credibility determinations are left to the
argues that the circuit court erred in terminating his
parental rights based on the subsequent-factors ground
because this ground was not alleged against him in DHS's
petition. He contends that termination on this ground
violates his due-process rights. Mitjans argues that only two
grounds for termination were alleged against him in the
petition-willful failure to maintain meaningful contact,
section 9-27-341(b)(3)(B)(ii), and abandonment, section
9-27-341(b)(3)(B)(iv)-and the circuit court had granted his
motions to dismiss on these grounds. Mitjans relies on
Jackson v. Arkansas Department of Human
Services, 2013 Ark.App. 411, 429 S.W.3d 276, in arguing
that his termination based on a ground not pled must be
Jackson, the ground regarding failure to maintain
meaningful contact was not alleged in the petition and was
not argued by DHS at the hearing. Furthermore, the circuit
court took the matter under advisement and did not make a
ruling from the bench. The first time this ground was ever
specifically mentioned as a ground for termination ...