Danes v. Ark. Dep't of Human Servs. & Minor Child

• Decision Date: 18 September 2019
• Docket Number: No. CV-19-181,CV-19-181
• Citation: 2019 Ark. App. 388,585 S.W.3d 731
• Parties: Aric DANES, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

2019 Ark. App. 388

585 S.W.3d 731

Aric DANES, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees

No. CV-19-181

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: September 18, 2019

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

One brief only.

MEREDITH B. SWITZER, Judge

Aric Danes appeals the Johnson County Circuit Court's termination of his parental rights to his daughter, J.W., born April 18, 2017.¹ Pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), his counsel has filed a no-merit brief setting forth all adverse rulings from the termination hearing and asserting there are no issues that would support a meritorious appeal. Counsel has also filed a motion asking to be allowed to withdraw. The clerk of this court notified Danes of his right to file pro se points. Danes has filed no pro se points. We affirm the order terminating Danes's parental rights and grant counsel's motion to withdraw.

I. Standard of Review

Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Rylie v. Ark. Dep't of Human Servs. , 2018 Ark. App. 366, 554 S.W.3d 275. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted, and the potential harm caused by returning custody of the child to the parent. Id. Each step requires proof by clear and convincing evidence, which is the degree of proof that will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id.

Appellate review for parental termination cases is de novo, and our inquiry on appeal is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Griffin v. Ark. Dep't of Human Servs. , 2017 Ark. App. 635, 2017 WL 5762415. 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. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses. Id.

II. Facts

On July 20, 2017, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect with respect to J.W. The affidavit attached to the petition averred that J.W. was removed from the custody of her mother, Katherina Waugh, on July 17, 2017. Waugh and J.W. had been living with Danes, who was identified as Waugh's boyfriend and J.W.'s putative father. There was no food in the home, there was no refrigerator, and it was unknown if the home had electricity. J.W. was removed from Waugh's custody due to Waugh's mental instability and inability to care for J.W. An ex parte order of emergency custody was entered the same day. A probable-cause order was entered on July 26, and J.W. was adjudicated dependent-neglected in an order entered August 22. The adjudication order directed Danes to submit to random drug screens; attend and complete parenting classes; obtain and maintain stable and appropriate housing; obtain and maintain stable and gainful employment; attend counseling as recommended; submit to a psychological examination and follow any recommendations; and submit to a paternity test.

In a review order entered on November 28, the circuit court found Danes had complied with the case plan (Waugh had not); Danes was determined to be J.W.'s legal father; and the goal of the case remained reunification. The circuit court entered additional review orders on January 23 and April 17, 2018; the goal of the case remained reunification, but there was no finding as to whether Danes was in compliance with the case plan in either order.

A permanency-planning hearing was held on July 17, 2018, the same day Waugh filed her consent to terminate her parental rights to J.W. The circuit court entered the permanency-planning order on July 31, changing the goal of the case from reunification to adoption.

DHS filed a petition to terminate Danes's parental rights on August 17, 2018, alleging four bases: (1) J.W. had been adjudicated dependent-neglected and had continued out of Danes's custody for a period of twelve months, and despite a meaningful effort by DHS to correct the conditions causing removal, the conditions had not been remedied; (2) J.W. had lived outside Dane's home for a period of twelve months, and Danes had willfully failed to provide significant material support in accordance with his means or to maintain meaningful contact with J.W.; (3) Danes had abandoned J.W.; and (4) other factors arose subsequent to the filing of the original petition for dependency-neglect that demonstrate placement of J.W. in Danes's custody is contrary to her health, safety, and welfare, and that, despite the offer of appropriate family services, Danes had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the circumstances that prevented the placement of J.W. in his custody. In a termination hearing held on November 20, the circuit court terminated Danes's parental rights, finding it was in J.W.'s best interest and that DHS had proved the twelve-months-failure-to-remedy and subsequent-factors grounds.

At the termination hearing, Danes testified he had moved several times during the case. At one residence, not only were there child-safety issues, there were also issues regarding people moving in and out of his home and his failure to inform DHS of these people. Danes stated that he currently had a two-bedroom apartment where he lived with his fiancée that was appropriate for J.W. Danes was unemployed at the time of the termination hearing due to injuries suffered in a scooter accident, but he testified that he was supposed to begin work at Subway the Saturday after the termination hearing, even though he was not yet cleared to return to work due to his injuries. Danes admitted he had "pointed out" due to excess absences at Tyson after only eight months of employment, quit OK Foods after approximately four months due to excess absences, worked for both Simmons and Sonic concurrently for approximately two weeks before he realized he could not work two jobs and left Simmons, and worked at Sonic for a total of one month before he was injured in his scooter accident.

As to visitation with J.W., Danes acknowledged he had not attended all his scheduled visits with J.W., especially since his accident. He admitted that as of the November 2017 review hearing, he had attended 5 of 16 scheduled visits; as of April 2018, had attended 10 of 35 visits; as of July 2018, he had attended 10 of 50 visits (with no visits made between March 2018 and July 5, 2018); and of the 68 total visits he had been offered, Danes agreed that if DHS reported he had attended only 19, that sounded "about right" to him. Excuses Danes gave for missing visitation included the following: he got visitation dates "mixed up"; he was looking for a job; and he was trying to find parenting classes to attend because the case worker told him he was not allowed to complete the parenting classes he had begun. He also said he had not visited due to his accident but admitted he had not called DHS to inform anyone, and he had not asked if visits could be scheduled around his doctor appointments. He admitted his visits with J.W. had been difficult because she would scream and cry at times, but he stated there were times J.W. smiled during visitation. Danes admitted he did not presently have anything in his home for J.W.; although he had a crib in storage, he estimated it would take him about a month to get everything together he needed.

Danes testified he was dismissed from his first parenting class due to his behavior and his second parenting class due to failure to attend. On his third attempt, he said he quit doing the written work after his case worker told him he was not going to graduate and receive the parenting certificate. He did obtain his parenting certificate in July 2018. Danes admitted his driver's license was suspended, and he had active warrants in Franklin County and Pope County, but he was unaware he also had an active warrant in Sebastian County. Danes testified that his disability income is $725 a month.

Amy Vaughn, J.W.'s caseworker from July 2017 to August 2018, testified Danes moved "quite a bit" during the time she worked on the case. On the night J.W. was removed, there was nothing in the home for the baby, there were roaches, and there was no food in the house. In Danes's next residence there were child-safety hazards, and several times there were people in the home Vaughn did not know who would not identify themselves when asked, including a man who claimed to be a homeless friend of Danes. In Vaughn's opinion, none of Danes's residences were appropriate for a child, and they did not contain any items necessary to meet a child's needs. She testified parenting classes were a continual issue with Danes. According to Vaughn, Danes had been discharged from his first parenting classes for being rude and verbally aggressive with the director when he...