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.
OPINION
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 Dept 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 courts 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
childrens 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 childrens 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
courts 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 childrens 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 DHSs 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 Lisas and Rods 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 courts 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 childrens 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
childrens 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 childrens 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 Rods 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
childrens 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
Dept of Human Servs.,361 Ark. 164, 205 S.W.3d 778. As
we have explained many times, parental rights will not be
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