Choate v. Arkansas Department of Human Services

          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 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 ...