Brumley v. Ark. Dep't of Human Servs. & G.B.

• Decision Date: 08 October 2015
• Docket Number: No. CV-15-156,CV-15-156
• Citation: 2015 Ark. 356
• Parties: GEORGE BRUMLEY APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND G.B., MINOR CHILD APPELLEES
• Court: Arkansas Supreme Court

2015 Ark. 356

GEORGE BRUMLEY APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICESAND G.B., MINOR CHILD APPELLEES

No. CV-15-156

SUPREME COURT OF ARKANSAS

October 8, 2015

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. J12-785-3]

HONORABLE STACEY A ZIMMERMAN, JUDGE

AFFIRMED; COURT OF APPEALS OPINION VACATED.

HOWARD W. BRILL, Chief Justice

Appellant George Brumley appeals an order of the Washington County Circuit Court terminating his parental rights to his son, G.B., pursuant to Arkansas Code Annotated section 9-27-341 (Supp. 2013). For reversal, Brumley argues that the circuit court erred in terminating his parental rights on two separate grounds and in finding that termination was in the child's best interest. Pursuant to Arkansas Supreme Court Rule 1-2(b)(5) (2015), we have jurisdiction because this appeal presents a significant issue needing development of the law. We affirm.

I. Facts

On October 7, 2012, appellee Arkansas Department of Human Services (DHS) received a call from Washington County Deputy Sheriff Eric Bryant, who reported thatAngela Poss, G.B.'s biological mother, had been arrested and charged with terroristic threatening, third-degree assault on a family member, and second-degree endangering the welfare of a minor. Deputy Bryant stated that Poss assaulted her mother during the child's birthday party in the presence of the minor and his younger half sister, C.F.¹ At the time of Poss's arrest, Brumley was incarcerated at the Arkansas Department of Correction.²

That same day, on October 7, 2012, DHS exercised a seventy-two-hour hold on the children because they had been left without a legal caregiver at the time of the removal. DHS filed a petition for emergency custody, and the circuit court placed custody of the children with DHS. The circuit court later entered a probable-cause order finding the children dependent-neglected. Following an adjudication hearing, the court ruled that the children would live with their aunt, Amanda Green, and stated that Brumley could send appropriate letters and could contact his son by phone. The court ordered Brumley to participate in individual counseling, to follow the recommendations of the counselor, to keep counseling appointments, to refrain from using illegal drugs and alcohol, to obtain and maintain stable housing and employment, to maintain housing for himself and the children, and to follow the case plan and court orders.

After a review hearing on May 8, 2013, the circuit court subsequently entered a review order, filed May 9, 2013, and ruled that Brumley had not complied with the court orders andcase plan. Specifically, the court found that Brumley remained incarcerated, while noting that he had taken numerous parenting and self-improvement classes in prison. The circuit court ordered Brumley to submit to random drug screens when released from prison, to have supervised visits with both children one time per week for one hour, and to file a petition for paternity. The case goal remained reunification.

The case proceeded to a permanency-planning hearing on September 25, 2013. Following the hearing, the circuit court entered an order that same day, finding that Brumley was the child's legal father and that he had not complied with all the court orders and the case plan. The circuit court ruled that Brumley remained incarcerated and had minimally participated in reunification services. The circuit court noted that Brumley had participated in parenting classes, life-skills classes, and sobriety classes in prison but that he could not care for the child because of his imprisonment. The court changed the case goal from reunification to adoption.

On October 18, 2013, DHS filed a petition for termination of parental rights, stating the following statutory grounds:

(i) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.

. . . .

(iii) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placementof the juvenile in the custody of the parent.

. . . .

(iv) The parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life[.]

At the termination-of-parental-rights hearing on December 13, 2013, Miranda Collins, a DHS caseworker, testified that the child lived with Elizabeth and Lee Francis, his aunt and uncle; that he was in special-education classes; and that the Francises wished to pursue adoption of the child and his sister. Collins testified that Brumley had written letters to his son and had taken parenting classes, but that he had been incarcerated throughout the entirety of the case and had no plans for stable housing or employment upon discharge. She also stated that he had never submitted to a drug screen. She testified that she believed it was in the child's best interest to have Brumley's rights terminated because she did not "want [him] out in the air about where [he] will be."

Brumley testified that he had supported his son while in prison by calling him and by sending checks, gifts, and letters. He stated that he had participated in three parenting classes, drug-treatment classes, and PALS, a faith-based program that taught life skills. He testified that he believed that he would reside at his mother's house, his sister's house, or a halfway house after his release date. On cross-examination, Brumley admitted that he last saw his son in 2007 and that out of nine years of the child's life, Brumley had lived with him for only six months.

Following the termination hearing, the circuit court entered an order, filed December 20, 2013, terminating Brumley's parental rights and granting DHS the power to consent to adoption. The circuit court's ruling was based on two grounds alleged in DHS's terminationpetition. Those two grounds included the twelve-month ground, found at Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), and the subsequent-factors ground, found at Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). Brumley timely filed his notice of appeal, and the court of appeals issued Poss v. Arkansas Department of Human Services, 2014 Ark. App. 514, 443 S.W.3d 594 (granting Poss's counsel's motion to withdraw, denying Brumley's counsel's motion to withdraw, and ordering his appeal to be rebriefed as a merit case). In a second opinion, Brumley v. Arkansas Department of Human Services, 2015 Ark. App. 90, 455 S.W.3d 347, the court of appeals affirmed the circuit court's ruling terminating Brumley's parental rights. Brumley filed a petition for review with this court, and we accepted Brumley's petition. We review the circuit court's order following the grant of a petition for review as if the matter were originally filed in this court. See, e.g., Machen v. Machen, 2011 Ark. 531, 385 S.W.3d 278. We now turn to Brumley's appeal.

II. Applicable Law

For the sole point on appeal, Brumley argues that the circuit court erred in terminating his parental rights on two grounds. First, Brumley contends that the circuit court erred in terminating his parental rights on the twelve-month ground and on the subsequent-factors ground because he was incarcerated at the time of the child's removal. Second, Brumley argues that the circuit court erred in finding that it was in the child's best interest to terminate the father's parental rights. DHS and G.B. jointly respond that the circuit court properly terminated parental rights on both statutory grounds and in its best-interest analysis.

Termination of parental rights is an extreme remedy and in derogation of the naturalrights of the parents. Crawford v. Ark. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). In cases involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. See Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). A proceeding to terminate parental rights is a two-step process that requires the circuit court to find by clear and convincing evidence that a parent is unfit and that termination is in the best interest of the child. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The first step is that DHS must prove one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). When determining the best interest of the juvenile, the circuit court takes into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii).

We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Arkansas Code Annotated section 9-27-341(b)(3) requires a circuit court's order terminating parental rights to be based on clear and convincing evidence. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Baker v. Ark. Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). When the...