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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.
OPINION
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
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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 ...