Brumley v. Ark. Dep't of Human Servs.
| Decision Date | 11 February 2015 |
| Docket Number | No. CV–14–203,CV–14–203 |
| Parties | George Brumley, Appellant v. Arkansas Department of Human Services and Minor Child, Appellees |
| Court | Arkansas Court of Appeals |
Dusti Standridge, for appellants.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
Appellant appeals from the circuit court's termination of his parental rights to G.B.1 On appeal he argues that (1) there was insufficient evidence to support the grounds upon which his rights were terminated, and (2) there was insufficient evidence to support the court's potential-harm finding as part of its finding that termination of appellant's parental rights was in G.B.'s best interest. We affirm.
G.B. was removed pursuant to a 72–hour hold on October 10, 2012, pursuant to an ex-parte order of the same date, after his mother was arrested on multiple charges after becoming violent with a family member at G.B.'s birthday party in the presence of G.B. and a younger sibling. Appellant was incarcerated, as a habitual offender, throughout the pendency of the case.2 On December 20, 2013, the circuit court entered an order terminating appellant's parental rights to G.B. This timely appeal followed.
In cases involving the termination of parental rights, there is a heavy burden placed on the party seeking to terminate the relationship.3 This is because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents.4 Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.5 Thus, parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children.6
We review termination of parental rights cases de novo.7 At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence.8 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.9 The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous.10 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.11 We do give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses.12
This particular ground requires that (1) the child be adjudicated dependent-neglected, (2) the child is out of the custody of the parent for twelve months, and (3) the parent failed to remedy the conditions that caused the child's removal.14
Appellant argues that this ground cannot be used against him because he was not responsible for the conditions that caused removal. DHS chose not to address this argument, focusing on the second argument only. We find merit in appellant's argument. Though G.B. was adjudicated dependent-neglected, he was out of his mother's custody for twelve months, not appellant's. Furthermore, appellant did not cause G.B.'s removal, nor was his absence cause G.B.'s removal. This provision is not applicable to him and cannot support termination of his parental rights.15 The circuit court clearly erred.
Accordingly, DHS was required to prove that (1) other factors arose subsequent to filing the original dependency-neglect petition, (2) the parent was offered appropriate family services, and (3) the parent manifested incapacity or indifference to remedying the subsequent issues.
Appellant argues that this ground is not sufficient to support termination of his parental rights because his incarceration, as cited by DHS in its petition for termination, was not a subsequent factor where he was already imprisoned when the case began. DHS argues that appellant's failure to comply with the case plan, due to his own incarceration, is a factor that occurred subsequent to the initial petition. In passing, DHS argues that appellant's continued incarceration should be seen as a subsequent factor. Because we agree with DHS's first argument, we do not address its second argument.
Appellant was ordered to obtain individual counseling; not use illegal drugs or alcohol; obtain and maintain stable housing and employment that will be adequate for himself and G.B.; maintain a clean, safe home for himself and G.B.; complete twelve hours of parenting classes; demonstrate the ability to protect G.B. and keep him safe from harm; and follow the case plan and court orders.
In its permanency-planning order, the court noted that appellant had “participated in parenting classes, life skills, sobriety classes, etc., in prison” but went on to note that he could not care for the child because he would remain incarcerated for another nine months.17 The court's notation stated that appellant “participated in” the listed activities. Appellant provided no proof of participation in, or completion of, any of the programs.18 There was no information detailing when these services were obtained, when or if they were completed, and more importantly, there was no indication at the termination hearing of whether those services made appellant a viable placement option for G.B., or made it so he would become a viable placement option within a reasonable amount of time after his release from prison, nine months after the hearing date. Additionally, he was never able to comply with the court's other orders as the fact of the matter was that appellant was not employed and did not have a home, as he was incarcerated, and had no “concrete plan,” as argued by DHS, for a stable home at the time of his pending, but unspecified date of release.19
The goal of section 9–27–341 is to provide permanency in a child's life in circumstances in which returning the child to the family home is contrary to the child's health, safety, or welfare and the evidence demonstrates that a return to the home cannot be accomplished in a reasonable period of time as viewed from the child's perspective.20 A child's need for permanency and stability may override a parent's request for more time to improve the parent's circumstances.21 Appellant argues that he should have been allowed more time to reunify with G.B. in light of the “significant and measureable progress he made.” We see none. Because appellant was incarcerated, he was unable to complete the case plan. However, we note that the analysis for an incarcerated parent differs from the analysis of a non-incarcerated parent.
In Friend v. Arkansas Department of Human Services, this court discussed the balance of the rights of the incarcerated parent against those of the child in care:
Although imprisonment imposes an unusual impediment to a normal parental relationship, it is not conclusive on the issue of termination. Nevertheless, a parent's imprisonment does not toll his responsibilities toward his child. Tolling a parent's obligations to comply with reunification orders while he is in jail would be contrary to the goal of the juvenile code to provide permanency for the child. The appropriate inquiry where a parent has been ordered to comply with a court's reunification orders and is incarcerated is whether the parent utilized those resources available to maintain a close relationship with the child.22
In this vein of analysis, the facts are that while appellant sent cards, letters, and at some prior period of time, money to G.B., appellant had not lived with G.B. more than six months of his life; had not physically seen G.B. since appellant was imprisoned in 2007 when G.B., who is now nine years old, was three years old; and G.B., while “fascinated” with the idea of a father, did not recognize appellant as his father. There simply was no relationship between appellant and G.B. This is supported by the fact that appellant testified to wanting “a chance” to see his son when he got out; to “just really wanna [sic] talk to [G.B.] and be a part of [G.B.'s] life”; and “to be able to work with the custodians ... to have a relationship with [his] son.” Appellant never requested below, and does not now request, the ability to obtain custody of G.B. As stated by the court at the termination hearing, “little G.B. doesn't know [appellant].” No potential services provided by DHS would have changed the fact that appellant's relationship with G.B....
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