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Terry v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

December 11, 2019

Jonathan TERRY, Appellant
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees

Page 825

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-17-932], HONORABLE STACEY ZIMMERMAN, JUDGE

         Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Andrew Firth and Callie Corbyn, Office of Chief Counsel, for appellee.

         Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

         OPINION

         BRANDON J. HARRISON, Judge

Page 826

          This appeal concerns the termination of a parent’s rights to his child. We ordered supplemental briefing in this case on 2 October 2019 because significant changes in Arkansas’s termination-of-parental-rights law occurred since this appeal has been pending. See Act of Feb. 28, 2019, No. 541, § 1, 2019 Ark. Acts ____. In the opinion that ordered supplemental briefing, we asked the parties to answer the following questions:

1. Does Act 541 apply to this appeal? Why or why not?
2. Does Act 541 resolve any issues raised in the briefs that have already been filed in this case and based on the record now on file with this court’s clerk? Why or why not?

         Some old caselaw from our supreme court indicates that a case should be decided under the law in effect when the appellate court issues its decision. Green v. Abraham, 43 Ark. 420, 424 (1884) ("If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered.") (internal quotes and citations omitted). In the area of juvenile law, however, Green no longer applies. Though it misstated the holding in Green, our supreme court in Goldsmith v. Arkansas Department of Human Services, 302 Ark. 98, 787 S.W.2d 675 (1990), declined to apply a change in the law that occurred after a termination order had been entered but before the appeal of the order was decided on appeal. Therefore, we will follow the Goldsmith approach in this case.

         Act 541, among other things, provides a new ground for terminating a parent’s rights to a child. Going forward, a parent may face a petition to terminate "if a parent has not established paternity or significant contacts with the child" because the General Assembly enacted legislation that places the burden on a putative parent— and no longer on the Arkansas Department of Human Services— to establish paternity of a child in the dependency-neglect context. Act 541, § 6 (amending Ark. Code Ann. § 9-27-341(b)(3)(B)(x)); Ark. Code Ann. § § 9-27-316(h)(4)(A), -325(o)(4) (stating obligation of putative parents). In this case, however, we agree with parent counsel’s supplemental brief that the changes wrought by Act 541 do not apply to this appeal. That is why we have applied the law as it existed before Act 541 took effect to the final order now on appeal.

          I. The Circuit Court Proceedings

          In November 2017, two children were removed on an emergency basis given complaints that their mother, Christina Tortorello, had neglected them. Jerry Strode was identified as the putative father of nine-year-old J.S. Jonathan Terry was identified as the putative father of four-year-old A.T. DHS believed that Terry was incarcerated when the children were placed in emergency custody.

          The dependency-neglect case eventually moved to the termination phase. During the hearing on DHS’s petition to terminate Terry’s rights to A.T., which was held on 4 December 2018, prior orders in the dependency-neglect ...


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