Earls v. Ark. Dep't of Human Servs.

• Decision Date: 11 May 2017
• Docket Number: No. CV–17–112,CV–17–112
• Citation: 518 S.W.3d 81
• Parties: Jacob EARLS, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, S.M. and D.M., Appellees
• Court: Arkansas Supreme Court

518 S.W.3d 81

Jacob EARLS, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, S.M. and D.M., Appellees

No. CV–17–112

Supreme Court of Arkansas.

Opinion Delivered May 11, 2017

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Andrew Firth, County Legal Operations, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

KAREN R. BAKER, Associate Justice

This appeal stems from the termination of parental rights of appellant, Jacob Earls, to his children, twins S.M. and D.M., both born on July 16, 2014. After the twins tested positive for methamphetamine, appellee, the Arkansas Department of Human Services (hereinafter "DHS"), initiated dependency-neglect proceedings on July 30, 2014, and ultimately the termination of parental rights proceedings that are the subject of this appeal.

On July 27, 2014, the twins were removed from their mother's custody after they tested positive for drugs. On July 31, 2014, the circuit court held a hearing, and in the subsequent order, the circuit court found that probable cause existed to remove the children from the custody of their mother, Charity Sessums. Sessums's parental rights were also terminated and are not part of this appeal. At the hearing, the circuit court recognized that Earls is a putative father, that his whereabouts are unknown, that he had not been served, and that he was not present for the hearing. On August 19, 2014, the circuit court ordered DHS to develop a case plan and make diligent efforts to discover Earls's location, and Earls was ordered to establish paternity. In its order, the circuit court also adjudicated the children dependent-neglected and ordered DHS to provide standard welfare services and develop an appropriate case plan.

On January 12, 2015, DHS filed an amended petition for dependency-neglect. Earls's address was listed in the amended petition, and "abandonment" was added to the grounds supporting DHS's assertion of dependency-neglect. On January 13, 2015, DHS filed a second amended petition and explained that DHS had concerns about service of process and was seeking a new adjudication on the parents. On the same date, DHS filed a motion on Earls's behalf requesting that the circuit court order a DNA test to establish Earls's paternity. On January 15, 2015, the circuit court granted the motion. On March 31, 2015, Earls filed a pro se answer to the second amended petition for dependency neglect and provided several relatives who he believed would be placement options for the children.

On April 23, 2015, the circuit court entered an adjudication-and-review order finding that the children were dependent-neglected due to the presence of controlled substances in their systems at birth. The circuit court also held that Earls was incarcerated and had been served on January 27, 2015, via service on the warden and that DHS had made reasonable efforts to provide services. The putative fathers were ordered to establish paternity.¹ On May 1, 2015, the DNA test results were filed with the court, and they showed that Earls's probability of paternity was 99.99 percent. On August 28, 2015, the circuit court entered a permanency-planning order. In the order, the circuit court found that Earls had not established significant contacts with the children and his parental rights had not attached. The circuit court found that Earls was incarcerated and that his projected release date was September 7, 2015. Earls did not appeal the permanency-planning order.

On January 8, 2016, the Department filed a petition for termination. In its petition it cited two statutory grounds: (1) Arkansas Code Annotated section 9–27–341(b)(3)(B)(i)(b) (Repl. 2015) that the children had lived out of the home of the noncustodial parent for twelve months, and despite meaningful efforts by the Department to rehabilitate Earls and correct the conditions that prevented placement with Earls, the conditions had not been remedied by him; and (2) Arkansas Code Annotated section 9–27–341(b)(3)(B)(ii)(a ) that the children had lived outside the parents' home for twelve months, and that Earls had failed to provide financial support or maintain meaningful contact with the children. On February 25, 2016, the circuit court issued a "Termination of Parental Rights Warning Order" and listed Kevin Myers and Jacob Earls each as "Legal/Putative Father."

On March 30, 2016, the circuit court held a termination hearing. Earls and Bobby Lindsey were both listed on the petition as the "legal father." Earls appeared and was represented by counsel. Marsha Bobo, the family service worker assigned to the case, testified that she had had no contact with Earls because he was incarcerated. She also testified that no services had been provided to Earls because his incarceration prevented DHS from providing him services. Bobo further testified that the Arkansas Department of Correction offered some of the same services that DHS provided, such as parenting classes and counseling, but she did not know if DHS had contacted Earls regarding the services offered at the Cummins Unit, and she confirmed that his case file did not mention any discussion of services. Bobo further testified that she was unaware of Earls's contacting DHS or of any requests for visitation with the children. Bobo testified that Earls could have contacted DHS and she would have been made aware of it. Bobo testified that she was made aware at the hearing that Earls was the biological father but had never had any meaningful contact with the twins.

Finally, Earls testified that he would like the twins to be placed in his custody when he is released from prison. He testified that he thought he would be released in two to three months, but his sentence that was issued on December 22, 2014, was for 5 years. Earls testified that he received a letter dated September 17, 2014, notifying him that the children were in DHS custody and inviting him to a "family centered meeting." Earls testified that when he arrived at the scheduled time of 3:00 p.m. he discovered that the meeting had already taken place at 8:00 a.m. that morning. Earls testified that he was served with a case plan, but that there were requirements in it he could not meet, such as watching the video "The Clock is Ticking" and going to counseling in Paragould. Earls further testified that he had contacted DHS during the case and had requested a DNA test by filing a motion with the court. Earls testified that he had written letters to legal counsel for DHS and the Office of Child Support Enforcement. He also testified that he had taken three classes since he had been incarcerated but that the parenting classes were "backlogged" and he could not get a place in them.

At the close of the hearing, Earls moved to dismiss and argued that DHS had not made any efforts to provide him services because he was incarcerated and also found that he failed to maintain meaningful contact with the children. Earls also argued that Arkansas Code Annotated section 9–27–341(b)(3)(B)(ii)(a ) could not be cited as grounds to support termination, because he was indigent and incarcerated and therefore unable to support his children financially. Earls argued that DHS's allegation that Earls failed to maintain meaningful contact with his children was incorrect because he had attempted to contact DHS regarding his children several times. Further, the attorney ad litem asserted that although DHS had not made efforts regarding Earls, it was not DHS's fault that the condition of his incarceration had not been remedied. The circuit court denied Earls's motion to dismiss and terminated his parental rights. On May 26, 2016, the circuit court entered the order terminating Earls's parental rights.

From the termination order, Earls timely appealed to the court of appeals, which affirmed the circuit court. Earls v. Ark. Dep't of Human Servs. , 2017 Ark. App. 53, 511 S.W.3d 373. On March 9, 2017, we granted Earls's petition for review, and we review the case as if it were originally filed in this court. On appeal, Earls asserts that the circuit court erred in finding that the statutory grounds for termination of his parental rights had been met under Ark. Code Ann. § 9–27–341 (b)(3)(B)(i)(b ) and (b)(3)(B)(ii)(a ).

I. Standard of Review

Termination of parental rights is an extreme remedy and in derogation of the natural rights 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). Termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. L.W. v. Ark. Dep't of Human Servs. , 2011 Ark. App. 44, 380 S.W.3d 489. The first step requires proof of 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 juvenile's best interest. Ark. Code Ann. § 9–27–341(b)(3)(A).

Further, 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). Grounds for termination of parental rights must be proved by clear and convincing evidence. M.T. v. Ark. Dep't of Human Servs. , 58 Ark. App. 302, 952 S.W.2d 177 (1997). The question on appeal is whether the circuit court's finding that a disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. 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....