APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-15-583]
HONORABLE STACEY ZIMMERMAN, JUDGE
Leah
Lanford, Arkansas Public Defender Commission, for appellant
Lisa Choate.
Dusti
Standridge, for appellant Roderick Choate.
Andrew
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
MEREDITH B. SWITZER, JUDGE
Lisa
and Rod Choate appeal from the September 25, 2018 order
terminating their parental rights to their minor children,
K.C. and I.C. This is the second time their parental rights
to these two children have been terminated. K.C. and I.C.
were removed from the Choates' custody in June 2015 and
adjudicated dependent-neglected by order entered August 24,
2015. The circuit court subsequently terminated the
Choates' parental rights by order entered in October
2016. This court reversed that decision in an opinion
delivered May 17, 2017. Choate v. Arkansas Dep't of
Human Servs., 2017 Ark.App. 319, 522 S.W.3d 156.
(Choate I). The Choates now bring separate appeals
from a second termination-of-parental-rights (TPR) order
entered on September 25, 2018. They raise three alternative
points: (1) the circuit court lacked jurisdiction of the case
following Choate I; (2) even if the circuit court
correctly resumed jurisdiction of the case, it erred in not
immediately returning custody of the children to them and
closing the case at the permanency-planning hearing because
their presumption of parental fitness was restored by
Choate I; and (3) even if the circuit court had
jurisdiction to proceed to termination, there was
insufficient evidence to support the circuit court's
findings regarding statutory grounds and best interest. We
affirm.
Following
the reversal in Choate I, the circuit court ordered
a permanency-planning hearing for June 9, 2017. The Choates
filed a joint motion for change of custody asserting that the
circuit court lost jurisdiction of the case when the
termination was reversed in Choate I; that
Choate I had restored their presumption of parental
fitness and their rights to the care, custody, and control of
their children; and that the children should be returned to
them immediately. The circuit court denied the motion,
explaining in part that Choate I did not disturb the
August 24, 2015 dependency-neglect adjudication, that the
circuit court retained jurisdiction over the children
pursuant to the adjudication, and that it was obligated to
conduct a permanency-planning hearing to assess the
children's current status because they had been out of
the Choates' care and custody since 2015. The goal of the
case was changed to reunification, and a progressive schedule
of counseling sessions and visitation was implemented, along
with various services, to achieve that goal. In March 2018,
however, the children's attorney ad litem filed a
petition to terminate, and in June 2018, the ad litem and DHS
filed a joint amended petition to terminate. The petition
alleged three statutory grounds for termination: (1)
twelve-month failure to remedy, (2) subsequent factors, and
(3) aggravated circumstances - little likelihood for a
successful reunification.
The
two-day termination hearing began on July 31, 2018, and
concluded on August 31, 2018. The circuit court rejected the
Choates' renewed challenge to its jurisdiction and the
court's decision not to return the children to them at
the first permanency-planning hearing. It did, however, limit
testimony to events primarily occurring after the first
termination.
At the
July 31, 2018 portion of the hearing, DHS presented evidence
from Melissa Bedford, the children's long-time counselor
who also conducted the family-therapy sessions, as well as
testimony from Lisa and Rod Choate. On August 31, 2018, DHS
continued its case by presenting additional evidence from
Melissa Bedford, and also from Andrea Emerson, the caseworker
assigned to the children. Lisa and Rod moved to dismiss at
the conclusion of DHS's case, but the circuit court
denied the motion, concluding sufficient evidence had been
presented to support a prima facie case for termination. Lisa
was the only witness presented in the parents' case, and
the attorney ad litem presented Ashley Coffman, the
court-appointed special advocate for K.C. and I.C.
At the
close of the testimony, the court announced its decision and
rationale for terminating Lisa's and Rod's parental
rights. The termination order was entered on September 25,
2018.
Although
appealing separately, the Choates' arguments are
virtually identical and can best be discussed together. Their
first two arguments rely on the premise that Choate
I restored their presumption of parental fitness. First,
they challenge the circuit court's jurisdiction following
Choate I for any purpose other than to return the
children to them. Next, they argue that even if the circuit
court properly resumed jurisdiction, it erred in refusing to
return the children to them following the June 2017
permanency-planning hearing. They contend Choate I
deemed them to be safe, fit, and no threat to the children,
and the only authority the circuit court had following the
Choate I mandate was to enter an order vacating its
previous order of termination, returning the children to
them, and closing the case. They further argue that once
their presumption of parental fitness was restored by
Choate I, the circuit court should have presumed
they were acting in the children's best interest.
Specifically, they contend, "[n]ot only did the
[circuit] court completely ignore the Choates'
constitutional rights as fit parents, but erroneously shifted
the burden to them, and focused on the children's needs,
as opposed to the parents' fitness and the presumption to
which they were entitled as fit parents to act in the best
interest of their children." We do not agree with their
underlying premise.
Choate
I neither explicitly nor implicitly restored a
presumption of parental fitness to Lisa and Rod. Thus, the
underlying premise for each of their first two arguments is
without merit. Choate I held only that DHS had not
sustained its burden of proving the statutory grounds for
termination. It did not address the children's best
interest, nor did it affect the August 25, 2015
dependency-neglect adjudication order. To be sure, the only
order from which the Choates appealed in Choate I
was the order terminating their parental rights. The
dependency-neglect determination remained in full force and
effect, and because the children had been out of Lisa and
Rod's custody since 2015, the circuit court was obligated
to do just what it did-assess the current status of the
children and identify what steps would be necessary to
reunite them with the parents. Reunification efforts began in
earnest soon after the June 9, 2017 permanency-planning
hearing.
Lisa
and Rod provide no legal authority or convincing argument to
persuade us that the circuit court was without authority to
continue its jurisdiction over this case, to assess the
children's current status, and to assure their best
interest before returning custody to the Choates. We will not
consider on appeal assignments of error unsupported by
convincing argument or authority unless it is apparent
without further research that the point is well taken.
Jones v. Arkansas Dep't of Human Servs., 361
Ark. 164, 205 S.W.3d 778. As we have explained many times,
parental rights will not be ...