Bevell v. Ark. Dep't of Human Servs.
| Decision Date | 08 March 2023 |
| Docket Number | CV-22-602 |
| Parties | ROBERT BEVELL APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15JV-21-12] HONORABLE TERRY SULLIVAN, JUDGE
Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Demarcus D. Tave, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor child.
Robert Bevell appeals the order of the Conway County Circuit Court terminating his parental rights to his daughter, Minor Child (MC), born on August 3, 2015. In his appeal, Bevell argues there is insufficient evidence supporting the statutory grounds for termination and the finding that termination is in MC's best interest. We affirm.
On March 25, 2021, the Arkansas Department of Human Services (DHS) removed MC and her siblings from the custody of her mother and stepfather, Martha and Matthew Warren, due to medical and environmental neglect. A petition for emergency custody was filed four days later. It identified Bevell as MC's putative father. The affidavit attached to the petition stated that DHS had opened a protective-services case involving the Warrens on February 24, 2021, for medical and environmental issues. The family lived in a small camper that was cluttered with trash, raw sewage was present, and the children suffered from developmental delays and needed medical appointments, including intensive therapy. DHS had offered the family transportation to medical appointments and parenting services, but Matthew Warren declined them, stating he did not feel the children needed follow-up appointments and that, regarding parenting classes, DHS would need a court order for him to do anything.
The court granted the petition for emergency custody and, at a hearing on April 1, found probable cause to continue custody with DHS. The probable-cause order noted that Bevell was present at the hearing. The circuit court ordered him to submit to a paternity test and to complete a drug screen before leaving the courthouse. He did not submit to a paternity test that day and later acknowledged that he had marijuana and amphetamines in his system. The court announced at the hearing that the adjudication hearing would be held on May 27.
Bevell did not appear for the adjudication hearing. At that hearing the circuit court found that MC and her siblings were dependent-neglected due to medical and environmental neglect by the Warrens.[1] The court set reunification as the goal of the case and again ordered Bevell to submit to a paternity test.
The court held two review hearings, one on September 16, and another on January 27, 2022, and continued the goal of reunification. Bevell was incarcerated at the time of these hearings. The order for the second review hearing noted that, due to his incarceration, Bevell had been unable to participate in the case in any meaningful way. The court ordered that he cooperate with efforts to resolve the issue of paternity and contact DHS upon his release from prison. After three missed appointments for DNA testing prior to his confinement, Bevell provided a DNA sample while incarcerated in December. DHS received the DNA results the day after the second review hearing, and the results showed that Bevell is MC's biological father.
The permanency-planning hearing was held on March 3, 2022. Bevell appeared by videoconference from prison. At the outset of the hearing, the court noted that the results of DNA paternity testing had been reported to DHS and that they showed that Bevell is MC's biological father.[2] The court asked Bevell's counsel if she had any objection to that determination, and she said she did not. The court then expressly found Bevell "is the biological father of [MC,]" and in its written order, it stated that Bevell is MC's "legal father."
Jillian Russell, a licensed mental-health therapist, testified at the permanency-planning hearing about MC's treatment. She said MC began therapy for PTSD in August 2021 and was progressing well. Russell testified that, until a month before the hearing, MC thought Bevell was dead and did not recall having any contact with him.
Bevell also testified at the permanency-planning hearing. He said that he had been incarcerated since August 2021. He explained that he was serving a five-year sentence for probation violations in two separate cases: one involving lottery fraud and aggravated assault and another involving commercial burglary, theft of property, and felony fleeing. He testified that he had been present for the birth of MC and spent the first two years of MC's life with her and her mother. He said he and MC's mother then separated, and he lived with MC the next two years at his grandparents' home. However, Bevell said he had not seen MC for two years. He testified that he had not communicated with anyone from DHS since shortly after the probable-cause hearing and that he had not received any services from DHS.
Brandy Cochran, a DHS supervisor, testified that MC and her siblings had been adjudicated dependent-neglected for severe environmental and medical neglect and parental unfitness. She said the children had experienced developmental delays due to neglect and that MC had been underweight and "very, very delayed in her speech." Cochran said she had contact with Bevell in the first two to three weeks of the case, but thereafter, her contact with Bevell was limited because he was in and out of jail. She testified that he missed three appointments for his DNA test before it was finally conducted in December 2021 after he had been reincarcerated. She said she had received one letter from Bevell in the month before the permanency-planning hearing, and it asked about visitation with MC. She said Bevell was not receiving services from DHS and had been afforded no Zoom visits with MC. She recommended a goal change in the case to adoption with parental rights terminated.
Following the hearing, the court found Cochran to be credible, noted that Bevell had been incarcerated the majority of the case, by his own testimony had not seen MC in two years, and would not be eligible for release until June 2022. The court concluded that MC needed permanency, and the goal was changed to adoption with termination of parental rights.
DHS subsequently filed a petition to terminate parental rights, alleging, as to Bevell, the following statutory grounds: (1) failure to remedy, Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2021); (2) subsequent factors, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a); and (3) aggravated circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B). The termination hearing was held on June 23, 2022.
Cochran's testimony at the termination hearing was similar to that at the permanency-planning hearing, including that DHS had failed to provide Bevell with services. She confirmed that Bevell did not reside at the home from which the children had been removed. Regarding MC, Cochran testified that she suffers from developmental delays, and her speech is almost "not understandable." Cochran said that when DHS initially contacted Bevell, it was discovered that he was on probation, facing revocation, and awaiting return to the penitentiary. He identified his grandparents as a possible placement option for MC, but they were not approved. Although there were safety concerns about the home and the grandparents' health problems, DHS's primary concerns were with Bevell and his father: Bevell had been living in the home, and his father, a sex offender, was living in a camper on the property. Bevell's father had offended against his children and was believed to have done so in the grandparents' home; therefore, there was concern that Bevell's grandparents would not be able to protect MC if she were living there. Cochran also testified that MC was at risk of harm because Bevell was incarcerated and could not take her. Cochran stated that MC is adoptable, and although she has some delays developmentally and physically, she is making progress and is healthy.
Bevell testified that he was still incarcerated and said he would remain incarcerated until at least March 2023 when he would be considered for parole. Bevell said that before going to prison in August 2021, he had been incarcerated from the preceding November 2020 to January 2021 and then was in drug rehabilitation for a month. He conceded that he had been asked to submit to a DNA test at the April 2021 probable-cause hearing but did not do so. While he stated that he did not appear in the case after that because he lacked transportation, he also conceded that he made no effort to get custody of MC because he knew he was going back to prison and was not in a position to care for her. Without elaborating, he said when he is released, he will have housing and a job. However, he agreed it would not be fair to require MC to wait for his release, stating, "I believe a lot has been unfair to [her]."
At the close of the hearing, the circuit court terminated Bevell's parental rights to MC and subsequently entered its written order finding by clear and convincing evidence that termination of parental rights was in MC's best interest and that all three statutory grounds alleged support termination. Bevell appeals.
We review termination-of-parental-rights cases de novo. Lloyd v. Ark. Dep't of Hum. Servs., 2022 Ark.App. 461, at 7, 655 S.W.3d 534, 540. Termination requires a finding of at least one statutory ground and a finding that termination is in the child's best interest. Id. at 8, 655 S.W.3d at...
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