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Fisher v. Arkansas Department of Human Services and Minor Child

Court of Appeals of Arkansas, Division III

January 23, 2019



          Tabitha McNulty, Arkansas Public Defender Commission, 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

         Avonis Fisher appeals the termination of his parental rights to his child, AF. On appeal he argues that termination of his parental rights was not in AF's best interest. We affirm.

         On February 2, 2017, the Arkansas Department of Human Services (DHS) took an emergency seventy-two-hour hold on AF, who was a little over a month old at the time, because AF's mother, Erika Hood, had an open foster-care case for another child, NR.[1]Fisher was named as AF's putative father.

         The case progressed through probable-cause and adjudication hearings. AF was adjudicated dependent-neglected. Fisher was named the biological father, and both parents asked that AF be placed with Fisher's mother. Fisher was ordered to participate in services, and the goal of the case was set as relative placement. A permanency-planning hearing was held on June 13, 2017. AF remained in DHS custody. Fisher missed his appointment for his psychological evaluation, and the circuit court again ordered him to submit to a psychological evaluation. It was also ordered that if the parents requested services, DHS was ordered to provide the services. The circuit court found that DHS had made reasonable efforts to achieve reunification. A month later, the circuit court entered an order directing that the placement decision regarding Fisher's mother, Lajuane Fisher, be expedited pursuant to the Interstate Compact on the Placement of Children (ICPC).

         On October 10, 2017, DHS filed a motion to authorize an ICPC placement based on the receipt of a favorable home study on the paternal grandmother. On November 2, 2017, the attorney ad litem filed a response to DHS's motion, arguing that the potential placement with the paternal grandmother was not in AF's best interest.

         On December 12, 2017, the circuit court held another permanency-planning hearing and continued the goal of relative placement. The circuit court heard testimony from the paternal grandmother and determined "the court cannot authorize ICPC placement with [the paternal grandmother]." The circuit court's decision was due to the criminal record of the grandmother's boyfriend, a drug raid on her home in 2016, and the court's assessment that the grandmother had credibility issues. That following February, a final permanency-planning hearing was held. The goal of the case was changed to include termination of parental rights and adoption, but the court also ordered home studies on both the paternal grandfather and uncle. DHS was found to have made reasonable efforts. On February 23, 2018, the attorney ad litem filed a petition for termination of both parents' parental rights, alleging the grounds of failure to remedy, [2] subsequent factors, [3]prior findings of neglect or abuse, [4] and aggravated circumstances.[5]

         A termination hearing was held on May 15, 2018. The court first heard testimony from an adoption specialist, who testified that there were over five hundred matches available for AF. It next heard from the family-service worker assigned to the case, Breanna Earnest. Earnest testified about the services offered to the parents. She testified that Fisher had not completed any counseling and that he had declined to submit to drug screening. Earnest stated that there was a bond between AF and Fisher and that he had made an effort to see his child. Fisher testified. He stated that he was currently living with his grandmother but that he was still in a relationship with AF's mother. He testified that he wanted the child to be placed with his grandfather. AF's mother, Erica Hood, testified that she believed it was appropriate for AF to be returned to her care but that if that was not an option that AF should go to Fisher's grandfather. In Fisher's closing argument, he reiterated his request to place AF with a relative. At the conclusion of the hearing, the circuit court terminated Fisher's parental rights, finding that it was in AF's best interest to do so. Fisher now appeals.

         We review termination-of-parental-rights cases de novo. Bunch v. Ark. Dep't of Human Servs., 2017 Ark.App. 374, 523 S.W.3d 913. 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(b)(3). 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. Bunch, supra. A heavy burden is placed on a party seeking termination because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. We will not reverse a termination order unless the circuit court's findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.

         The termination-of-parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. The first step requires proof of one or more of the nine enumerated statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step, a best-interest determination, must consider the likelihood that the children will be adopted and the potential harm caused by returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i), (ii).

         On appeal, Fisher does not challenge the statutory grounds and instead limits his argument to the best-interest determination. But even within his best-interest argument, Fisher does not address the findings associated with adoptability or potential harm. Because Fisher has not challenged the court's decision as to the grounds for termination, adoptability, or potential harm, we need not address them now. Instead, Fisher contends that the circuit ...

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