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Fox v. Arkansas Department of Human Services and Minor Children

Court of Appeals of Arkansas, Division II

January 15, 2020

NATHAN FOX APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          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 ...


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