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Burns v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

May 1, 2019

STEVEN BURNS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23JV-17-137] HONORABLE DAVID M. CLARK, 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.

          PHILLIP T. WHITEAKER, JUDGE

         Steven Burns appeals a Faulkner County Circuit Court order terminating his parental rights to his twin children, EB and LB, arguing there was insufficient evidence to support the circuit court's statutory-grounds findings. Because there was sufficient evidence on which the circuit court could find that Burns abandoned his children, we affirm.

         I. Factual and Procedural History

         Steven Burns and his ex-wife, Rachel Hendricks, are the parents of EB and LB. Burns and Hendricks have a history of dysfunctionality within their home, which has resulted in their recurring involvement with the Arkansas Department of Human Services ("the Department"). Even before the commencement of this case, they had their parental rights terminated to another child in a separate proceeding in another county, wherein Burns voluntarily relinquished his parental rights to that child.[1]

         In May 2017, the Department received a failure-to-protect referral, which alleged that Hendricks and Burns were selling drugs while their children, EB and LB, were present. At the time of this referral, the Department already had an open protective-services case involving EB and LB. The Department made contact with Hendricks. She denied selling or using drugs but tested positive for methamphetamine despite her denial. Hendricks also advised the Department that she and Burns were divorced, that he no longer lived in the home, that she had no idea of his current whereabouts, and that he rarely exercised his visitation although he stayed with them when he did.

         Based on the foregoing, the Department exercised a seventy-two-hour hold[2] on the children citing a substantial risk of harm due to drug use and parental unfitness, and the court entered an ex parte order for emergency custody. In that order, the court outlined the parents' history with the Department, including their past drug usage and their previously documented unwillingness and inability to cooperate with the Department to correct the issues that caused removal. Because the same issues were at play here, the court found that removal was necessary for the health and safety of EB and LB. The court also appointed counsel for both Hendricks and Burns.

         Subsequently, the court conducted a probable-cause hearing, the hearing on adjudication, and three review hearings. Burns did not participate in any of these proceedings, because his whereabouts were unknown.[3] Burns made his first appearance at the permanency-planning hearing conducted on May 1, 2018. By that time, the children had been in the Department's custody for almost a year, and the circuit court had already entered orders noting that Burns had not had any meaningful contact with the Department and had made no progress toward alleviating or mitigating the causes of EB and LB's removal from the home. More importantly, Burns testified and admitted that (1) he was aware when his children had been taken into custody, (2) he had made no attempt to contact the Department by phone or in person until approximately two months before the hearing, and (3) he had not seen his children since they came into custody. The court entered a permanency-planning order finding that Burns had failed to comply with the case plan and court orders; had made no progress toward alleviating or mitigating the causes of EB and LB's removal from the home; had not had any meaningful contact with the Department; and had not visited with EB and LB at any time while the case was pending. The court changed the goal of the case to adoption

         Based on the change of goal to adoption, the Department filed a petition for termination of Burns's parental rights, citing the following statutory grounds for termination: (1) twelve months outside the home of a noncustodial parent (Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b))(Supp. 2017); (2) abandonment (Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)); and (3) aggravated circumstances based on abandonment and little likelihood of successful reunification (Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)).[4]

         After a hearing on the petition, the circuit court entered an order terminating Burns's parental rights based on two statutory grounds: twelve months outside the home of the noncustodial parent (Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b)) and abandonment (Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)). Burns now appeals, challenging only the statutory grounds for termination.

         II. Stand ...


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