FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-17-932]
HONORABLE STACEY ZIMMERMAN, JUDGE.
Bowers Lee, Arkansas Public Defender Commission, for
Firth and Callie Corbyn, Office of Chief Counsel, for
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
BRANDON J. HARRISON, Judge.
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
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?
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.
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.
The Circuit Court Proceedings
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.
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 case were
admitted as evidence. The orders are important to discuss in
some detail because they reveal how the circuit court failed
to properly address Terry's parental status.
November 2017 probable-cause order shows that Terry was not
present at the hearing, and the court found that "the
whereabouts of all three parents are currently unknown."
The court ordered Terry to comply with certain conditions,
like weekly random drug screens, and it ordered DHS to serve
Terry "with a copy of the ...