APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-17-717]
HONORABLE STACEY ZIMMERMAN, JUDGE
Leah
Lanford, Arkansas Commission for Parent Counsel, for
appellant.
Andrew
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
BRANDON J. HARRISON, Judge
The
Washington County Circuit Court terminated the parental
rights of Nathan Fox to his three children, NF, AF1, and AF2.
On appeal, Fox argues that the termination order should be
reversed because he was denied his statutory right to
counsel. We affirm the circuit court's order.
On 18
September 2017, the Arkansas Department of Human Services
(DHS) petitioned for emergency custody of nine-month-old NF,
eight-year-old AF1, and twelve-year-old AF2. The supporting
affidavit explained that on September 16, DHS exercised
emergency custody of NF after her mother, Angela Terry, had
been arrested.[1] That same day, DHS visited the family
home. Nathan was present with AF1 and AF2, and DHS exercised
emergency custody of the children after finding the home
unsuitable for children.
The
affidavit stated, "Legal custody was removed [from]
Angela Terry and physical custody was removed from Nathan
Fox[.]" The petition identified Terry as the
children's mother and Fox as the putative father. The
circuit court entered an ex parte order for emergency custody
on September 18; that order recited, "The parent(s) or
guardian(s) have a right to an attorney at each stage of the
proceedings. Legal assistance may be obtained by retaining
private counsel, contacting Legal Services . . . or if
indigent, requesting the Court to appoint legal
counsel."
The
probable-cause order, entered on September 19, appointed
counsel for Terry and ordered her to maintain contact with
her attorney. The order also ordered Fox to "take
appropriate steps to resolve the issue of paternity by
submitting to a DNA test." The court found that Fox was
indigent and ordered DHS to pay for the DNA testing. On
October 18, the court entered an order of paternity finding
that Fox is the "biological and legal father" of
all three children.
On
October 20, the circuit court adjudicated the children
dependent-neglected based on environmental neglect and
parental unfitness. The court reiterated that Terry was
required to maintain contact with her attorney, but no
mention was made of Fox. The court made a specific finding
that both parents were indigent. A review order on 14
February 2018 did not list an attorney for Fox in the
caption, but a review order on June 15 and a
permanency-planning order on September 6 indicated that Fox
was proceeding pro se.
On 3
January 2019, the circuit court entered a fifteen-month
permanency-planning order and changed the goal of the case
from reunification to authorizing a plan of adoption with DHS
filing a petition for termination of parental rights. That
order stated, "Having set the goal to be adoption, the
Court has determined that the legal parent father has not yet
been appointed counsel and requests appointment of counsel
today, and the Court determines the parent father IS indigent
and counsel IS appointed for the parent father[.]" The
court convened a termination hearing on April 19; at the
start of the hearing, DHS introduced twenty exhibits,
including prior orders, reports, and an acknowledgment of
paternity executed by both Terry and Fox at the time of each
child's birth. On 28 May 2019, the circuit court entered
an order terminating Fox's parental rights.
A
circuit court's order that terminates parental rights
must be based on findings proved by clear and convincing
evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017);
Dinkins v. Ark. Dep't of Human Servs., 344 Ark.
207, 40 S.W.3d 286 (2001). Clear and convincing evidence is
proof that will produce in the fact-finder a firm conviction
on the allegation sought to be established. Dinkins,
supra. On appeal, we will not reverse the circuit
court's ruling unless its findings are clearly erroneous.
Id. A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction
that a mistake has been made. Id.
On
appeal, Fox does not challenge the statutory grounds for
termination or the circuit court's best-interest
determination. Instead, Fox argues that he was denied his
right to timely appointed counsel, which "tainted the
entire ...