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 ...