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Clark v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

April 17, 2019

MISTY CLARK APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-17-233] HONORABLE STACEY ZIMMERMAN, JUDGE.

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          BRANDON J. HARRISON, Judge.

         In August 2018, the Washington County Circuit Court terminated Misty Clark's parental rights to two of her children: J.S. and A.S. It found that the Arkansas Department of Human Services (DHS) had proved by clear and convincing evidence that the termination was in the children's best interest. In doing so, the circuit court expressly stated that the permanent-placement option that would best serve the children would be for their foster parents in Arkansas to adopt them. But wait-the children's grandparents had already completed the process of approval under the Interstate Compact on the Placement of Children (ICPC) and unequivocally expressed the desire to care for the children. And both the DHS case supervisor and the children's Court Appointed Special Advocate (CASA) volunteer had each recommended that the permanent placement be with the children's grandparents in Indiana. The circuit court, however, rejected the grandparents' request to have the children placed with them on a permanent basis. We hold that the court's stated reasons for rejecting the grandparents as a permanent placement for the children are clearly erroneous. We therefore reverse the termination order and remand for further proceedings consistent with this opinion.

         I. Background

         On appeal, Clark concedes that DHS proved the statutory grounds for terminating her rights. Clark is therefore deemed an unfit parent in the law's eyes.[1] That legal determination is important because the children have no fit parent to take them, which in turn means the State has the final authority to determine where to place the children.

         How a circuit court exercises the power given to it by the State to place children of unfit parents in permanent homes is far-reaching but not limitless. The State has an interest in finding a child an alternative permanent home when a parent cannot adequately provide one. Ark. Code Ann. §§ 9-27-341(c)(3), -360 (Supp. 2017). And displaced children have a concurrent interest in preserving relationships that serve their welfare and protection. Santosky v. Kramer, 455 U.S. 745, 759 (1982). Our General Assembly recognizes this interest and has passed laws that promote the safety, permanency, and well-being of children in foster care. See, e.g., Ark. Code Ann. § 9-28-1003 (Supp. 2017). More to the point for this case is that the General Assembly has enacted the policy that relatives are preferred when placing children in permanent homes. See Ark. Code Ann. §§ 9-28-105, -108 (Repl. 2016). This appeal tests whether that policy has real meaning.

          A. The Permanency-Planning Order

         A.S. and J.S. were eleven and twelve years old, respectively, when the termination hearing was convened. Seven-year-old sibling K.C. had lived with J.S. and A.S. in a family unit before the three siblings were removed from their mother's custody. After the removal, the court placed K.C. with his father, Brian Clark. J.S. and A.S. remained in foster care for the duration of the case. The foster parents had an agreement with Brian Clark to babysit K.C., so the siblings saw each other frequently. Another sibling, A.W., lives in Texas. Before J.S. and A.S. were placed with a Northwest Arkansas foster family, the children had frequent phone conversations with A.W. All four children have a relationship with their grandparents, the Sargents, who live in Indiana. James and Bari Sargent have been married for thirty-one years. Together they have seven children. Misty Clark is James's biological daughter. Bari is Clark's stepmother.

         Clark's main argument on appeal is that the circuit court erred when it concluded that terminating her parental rights was in the children's best interest. An adoption by the foster parents, she argues, severs all familial bonds; yet the circuit court could have preserved those bonds by placing permanent custody of J.S. and A.S. with the Sargents.

         DHS and the children's attorney ad litem (collectively DHS) disagree. (It is an abrupt about face for DHS because it took the opposite position in the circuit court.) They first argue that Clark is procedurally barred from arguing that termination was not in the children's best interest because they had grandparents willing and able to take the children. They press this procedural point because Clark did not appeal the circuit court's permanency-planning order. DHS also argues that terminating Clark's parental rights does not prevent the grandparents from petitioning to adopt the children or bar them from receiving preferential consideration in an adoption proceeding. DHS also states that the issue of "alternative placement was irrelevant to the termination hearing." See Andrews v. Ark. Dep't of Human Servs., 2012 Ark.App. 22, at 10, 388 S.W.3d 63, 68.

         We first address the waiver point. A permanency-planning order that is a final custody order is an appealable order. But this case does not have that type of planning order, which means that pursuant to Arkansas Supreme Court Rule 6-9(a)(1)(B), Clark would have had to procure a certification pursuant to Arkansas Rule of Civil Procedure 54(b) to appeal the permanency-planning order in this case. See West v. Ark. Dep't of Human Servs., 373 Ark. 100, 281 S.W.3d 733 (2008). The clear implication is that a permanency-planning order of the typical variety is an interlocutory order that does not have to be appealed when it issues. If it had to be appealed when issued, then there would be no need to invoke Rule 54(b). Moreover, in the permanency-planning order before us, the circuit court itself wrote, "The goal established in the case was reunification. The concurrent goal was custody and adoption." Consequently, there was no pressing need for Clark to appeal the interlocutory permanency-planning order because, at the time, a concrete plan (and some hope) was in place to reunite Clark with the children. In other words, there were two permanency paths going into the termination hearing, and one path on the table was a preferred option from Clark's point of view. Adoption by the foster parents did not become the clear choice until the termination hearing was convened. During the hearing, DHS recommended that the children be placed with Clark's parents in Indiana. That is what Clark herself wanted if the children were not going to be returned to her. There was therefore no technical or practical legal reason to have pursued an appeal before Clark's preferred permanency-placement option was foreclosed by a judicial determination. We therefore conclude that Clark is not procedurally barred from arguing that termination was not in the children's best interest because an alternative and satisfactory relative placement was available for the circuit court to consider when it ordered the termination. See Ellis v. Ark. Dep't of Human Servs., 2016 Ark. 441, 505 S.W.3d 678.

         B. The Circuit Court's Decision

         The circuit court expressly considered, and rejected, relative placement as it proceeded to termination. Paragraph 8 of the termination order that Clark appeals states:

The Court declines to place the children with their grandparents, James and Bari Sargent in Indiana because the grandmother testified that they never wanted to get involved in the previous foster care cases involving the children because they did not want to get involved in the "ugly." The Court finds that despite having the financial means to attend court hearings, but never came to any of the prior hearings in this case. The Court notes that the preference is always placement with relatives, but only when it is in the best interests of the children. The testimony of Brian Clark is that [K.C.] is sad to leave visits with his siblings and the children's therapist testified that to sever the bond between [J.S., A.S., and K.C.] would be very detrimental to the children's mental health.
Moreover, the therapist also testified that the children have anxiety and anger issues, and suffer from adjustment disorder. The Court finds that their adjustment disorder can be attributed to the fact that the children have been in foster care three different times. By remaining in their current placement, the children can remain in their same counseling and schools. Most importantly [J.S. and A.S.] will be able to maintain contact with their sibling [K.C.] Given these factors, the court finds that it is in the best interests for [J.S. and A.S.] to be adopted by their current foster family.

         The circuit court's oral ruling (with our emphasis) informs the written order and its decision.

The next question comes now whether or not it's in the children's best interest, [J.S.] and [A.S.], to be placed with their grandparents, maternal grandparents, [A.S.]'s grandparents and [J.S.]'s grandparents, Bari and James Sargent of Kokomo, Indiana. Having terminated mom's rights to the children, that terminates the grandparents' rights to [A.S.] and [J.S.] With respect to placement, we have an approved relative home study authorizing placement with Bari and James Sargent who are retired. They live in Kokomo, Indiana. Their home is clean and safe. They have plenty of financial resources to meet the needs of the children. They are retired. They have $2, 000 of expendable income left over at the end of the month. They testified that they have family in the Kokomo area or in Indiana. Mom testified that she believes that the children need to be placed with grandparents because they are relatives and the grandparents can meet all of the children's needs. Grandparents testified that they were aware the first time the kids came in foster care in Arizona. Then they went back to parents. Then they didn't think there was an issue. Then the kids went back to foster care the second time, and after that mom moved to Indiana. And then when grandmom was asked, "Well, what did you do when things got rough again?", she said, "Well, there wasn't anything to do to get them out of the ugly," the children out of the ugly. Well, the children have been in a lot of ugly over their short lives. Three times in foster care. Then grandpa testified that he's called DHS 32 times, and I have no doubt in my mind that grandpa and grandmom did that, calling, trying to talk to DHS to get them to do something.
But the thing that I don't understand is for two grandparents that have high IQs, they have the financial wherewithal to be able to drive here and be present at any hearing, they didn't do it. And it is not [sic] we haven't ever been through this before. The kids and the family have been through this three times before. And so I can't just say ok, you got a valid, approved ICPC, boom, you get the kids. We always prefer relatives if it's in the best interest of the children. If we send the kids to Indiana, they sever their ties of getting to see their brother, [K.C.], who is the one consistent family member they've had. He lives here. The therapist testified that she knows all three children and to sever that bond where [K.C.] doesn't get to see his brother and sister frequently and [J.S.] and [A.S.] don't get to see [K.C.] consistently would be harmful to all three children's mental health. They already have adjustment disorder. They already have anxiety. They were scared to death when mom wrecked into the ditch. Here they go to foster care the third time. And now [A.S.] and [J.S.] don't want to be put in the position of choosing. They don't need to choose. That's my job based upon the evidence and what's in the children's best interest. And I've listened to the testimony. I've observed the demeanor of all of the witnesses, and I still can't get my brain around the fact that we have affluent grandparents that live 12 hours away, and these children have been in foster care three times, and they have an uncle who is a school superintendent with a doctorate. These children have been failed by their biological family too many times.
I find that it's-and it's clear to me. There is no question in my mind that it is best for [J.S.] and [A.S.] to be adopted by their foster family. They can continue in their same school. They can continue with their same therapist. And, most importantly, they can continue to pretty much every other day, weekly contact with their little brother [K.C.] I find that it's true that they have a bond with their foster parent, and that's good. They don't have a bond with their grandparents. Their grandparents haven't seen them in almost two years. That's not my ...

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