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Hunter v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

October 17, 2018

DERRICK HUNTER APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14JV-16-48] HONORABLE DAVID W. TALLEY, JR., JUDGE

          Janet Lawrence, for appellant.

          Callie Corbyn, Office of Chief Counsel, for appellee.

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

          MIKE MURPHY, JUDGE

         Appellant Derrick Hunter appeals from the March 28, 2018 order of the Columbia County Circuit Court terminating his parental rights to his son, J.H. Hunter argues that he was denied due process because (1) he was not provided assistance of counsel until the termination hearing and (2) sufficient evidence did not support the termination. We affirm.

         On August 19, 2016, the Arkansas Department of Human Services (DHS) exercised an emergency seventy-two-hour hold on newborn J.H. when both J.H. and his mother, Jessica Otwell, tested positive for amphetamines at the time of J.H.'s birth.[1] At the time of removal, Hunter was identified as J.H.'s putative father. He tested negative for drugs at the time, but he admitted using marijuana in the past. It was also discovered that Hunter is a level-three sex offender. In addition, DHS's records revealed that Hunter has a long history with DHS dating back to 2001 when a true finding was made against him for sexual penetration and exploitation of a juvenile. In addition, he had been implicated in five reports to the hotline resulting in two additional true findings for sexual and physical abuse, both against his children from other marriages.

         A petition for emergency custody was filed on August 25, 2016, and an ex parte order for emergency custody was signed that same day. A probable-cause hearing was conducted on September 2, 2016, and the order entered found that the emergency conditions that necessitated removal of J.H. from his mother's custody continued to exist. Hunter was present at the hearing and was ordered to submit to a DNA test to determine paternity as to J.H.

         On October 7, 2016, Hunter attended the adjudication hearing, and the circuit court found J.H. dependent-neglected. In addition, it was established that Hunter did not have significant contacts with J.H., and putative-parent rights had not attached. The circuit court reiterated its order for Hunter to submit to DNA testing.

         A review hearing was held on January 6, 2017, and DNA test results were entered into evidence showing that there was 99.99 percent probability that Hunter is J.H.'s biological father. The circuit court ordered Hunter to "participate in the services outlined in the case plan, including random drug testing, and . . . submit to a hair follicle drug screen." Additionally, the circuit court found that Hunter had completed parenting classes and submitted to a psychological evaluation, but he had tested positive for illegal substances.

         Another review hearing was held on February 17, 2017, and the circuit court found that Hunter was complying with the case plan and court orders and that he had been testing negative for illegal substances. On March 6, 2017, an amended review order was filed pertaining to the review hearing held on January 6, 2017. The order was amended to reflect the addition of Hunter as a defendant and to add language adjudicating Hunter the legal father of J.H.

         On April 21, 2017, a third review hearing was held. The circuit court found that Hunter was complying with the case plan and ordered him to submit to a psychosexual evaluation. A fourth review hearing was held June 23, 2017, and the circuit court found that Hunter had "violated the Court's previous order restricting [his] visitation to supervised visits only."

         On October 17, 2017, DHS filed a petition for termination of Hunter's parental rights based on three grounds: "failure to remedy," Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017); "subsequent factors," Ark. Code Ann. § 9-27-341(b)(3)(B)(vii); and "aggravated circumstances," Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3). On December 1, 2017, the circuit court held a permanency-planning hearing and found that Hunter had not made significant, measurable progress.

         The circuit court held the termination-of-parental-rights hearing on January 19, 2018. After finding that Hunter was indigent and had requested counsel, the court appointed counsel to represent him at the termination hearing. The circuit court terminated Hunter's parental rights based on the aggravated-circumstances ground. Moreover, the circuit court found ...


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