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 ...