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Tovias v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

April 17, 2019

JOSUE TOVIAS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-18-95] HONORABLE STACEY ZIMMERMAN, JUDGE

          Tina Bowers Lee, 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 children.

          PHILLIP T. WHITEAKER, Judge.

         Josue Tovias appeals from a Washington County Circuit Court order terminating his parental rights to JT, born September 25, 2012.[1] On appeal, Tovias argues that the trial court erred in terminating his parental rights because (1) the Arkansas Department of Human Services (DHS) failed to establish he was a parent for purposes of satisfying the statutory-grounds requirement for termination and (2) there was insufficient evidence of potential harm to satisfy the best-interest requirement for termination. On the record as presented to us, we must reverse because there is no evidence that Tovias's status as a "legal father" falls within the statutory definition of a parent for purposes of the aggravated-circumstances ground for termination.

         I. Factual and Procedural History

         We provide the following review of the factual and procedural history for an understanding of our analysis. In January 2018, Tovias was living with his girlfriend, Melissa Miranda; her son, JT; and her four other children.[2] Both Miranda and Tovias were arrested on charges related to the abuse and neglect of the children, at which point the children were left without a caregiver. As a result of the abuse and neglect allegations and the absence of a caregiver, DHS exercised a seventy-two-hour hold on all the children and filed a petition for emergency custody and dependency neglect alleging that the children were dependent-neglected. Tovias was not named as a party in the petition or in the ex parte order for emergency custody.[3]

         After the children's removal, the court conducted a probable-cause hearing. The court heard evidence of the numerous criminal charges that had been filed against both Miranda and Tovias. Specifically as to Tovias, the court was informed that he had been arrested and charged with second-degree domestic battering, aggravated assault on a family or household member, first-degree endangering the welfare of a minor, tampering with physical evidence, kidnapping, terroristic threatening, and permitting child abuse. The court recognized Tovias as the putative father of JT but did not order DNA testing.

          The court conducted an adjudication hearing in March 2018, in which it found that the children were dependent-neglected as a result of abuse and neglect. The court specifically identified Miranda as the perpetrator of the "horrific abuse" inflicted on one of JT's siblings and ordered the goal of the case to be reunification with a concurrent goal of adoption. The court again recognized Tovias as the putative father of JT, found that he had established significant contacts with JT, and concluded that his putative parental rights had attached. Despite these findings, the court once again failed to order DNA testing.

         DHS subsequently filed a motion to terminate reunification services.[4] At the hearing on the motion, the court found that Tovias was the "legal father" of JT and ordered the clerk to add him to the style of the case.[5] Our review of the no-reunification order reveals no basis for how this determination was made-there is no mention of any evidence of any DNA testing or any acknowledgment of paternity in the order.

         Immediately following the no-reunification-services hearing, the court conducted a permanency-planning hearing. The order filed thereafter is perplexing. The court clearly found that the permanent goal for JT was adoption with DHS filing a petition for termination of parental rights. The court again clearly found Tovias to be JT's "legal father" and that he was entitled to appointed counsel at the hearing to terminate parental rights. This clarity, however, is clouded by language in that same sentence indicating that counsel would be appointed if the "putative" parent requested it. So, in the very same sentence, the court referred to Tovias as both the "putative father" and the "legal father."

         DHS filed its petition to terminate parental rights in which it identified Tovias as the "legal father" of JT, alleged that termination was in the best interest of the children, and listed aggravated circumstances as the statutory ground for termination.[6] After a termination hearing, [7] the trial court found that DHS had proved aggravated circumstances by clear and convincing evidence and that termination was in JT's best interest. Tovias appeals both the court's statutory-grounds and its best-interest findings.

         II. Standard of Review ...


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