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

• Decision Date: 16 November 2016
• Docket Number: No. CV–16–561,CV–16–561
• Citation: 506 S.W.3d 872,2016 Ark. App. 560
• Parties: Edward HOWERTON, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
• Court: Arkansas Court of Appeals

2016 Ark. App. 560

506 S.W.3d 872

Edward HOWERTON, Appellant

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

No. CV–16–561

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered: November 16, 2016

Leah Lanford, Ark. Pub. Defender Comm'n, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

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

WAYMOND M. BROWN, Judge

Appellant appeals from the circuit court's termination of his parental rights to G.E., born 9/12/14. On appeal, appellant argues that the circuit court erred in terminating his parental rights to G.E. because his rights were "nonexisting." We reverse.

On September 26, 2014, appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of G.E. due to her birth to an incarcerated mother.¹ Brandon Edgar was listed as G.E.'s putative father in the petition. The circuit court entered an order granting emergency custody on September 29, 2014. Appellant was not listed as a party in the petition or the order.

Following a hearing on September 30, 2014, the circuit court entered a probable-cause order on the same date noting that the parties had stipulated that probable cause existed at the time of removal and continued to exist. A determination of Edgar's paternity was reserved therein for adjudication and he was listed in the order as G.E.'s "LEGAL/PUTATIVE FATHER [.]"² Appellant still was not listed as a party.

An agreed adjudication order was entered on November 10, 2014. In that order, Edgar's status was changed to that of the putative father only, and appellant was added as G.E.'s "LEGAL FATHER[.]" DHS was ordered "to amend the pleadings to make Mr. Howerton a party to this matter."

A review order was entered on November 25, 2014, after a hearing on the same date. It stated that appellant was incarcerated in Tucker, Arkansas. Both appellant and Edgar were ordered to comply with the case plan and the orders of the circuit court.

DHS filed a motion to terminate reunification services to appellant on December 22, 2014. It alleged therein that appellant had subjected G.E. to aggravated circumstances where an older sibling of G.E. was subjected to sexual abuse by appellant.³ It also alleged that appellant had subjected G.E. to aggravated circumstances where there was little likelihood of successful reunification with appellant, who was sentenced to 360 months' imprisonment in the Arkansas Department of Correction (ADC) for the abuse of G.E.'s siblings, a period of time which constituted a substantial period of time from G.E.'s perspective.⁴ It specifically alleged that the fact that appellant was a legal father, and not an apparent biological father of G.E., was a basis for termination.⁵ The circuit court noted that Edgar had not established paternity at that point.

The circuit court entered a review-and-no-reunification-services order on April 6, 2015, following a March 12, 2015 hearing. It noted that appellant was G.E.'s legal father "by virtue of his continued marriage" to G.E.'s mother and granted DHS's no-reunification-services motion finding that G.E. had been subjected to aggravated circumstances in that there was little likelihood of successful reunification with appellant based on his thirty-year sentence for his rape conviction.⁶

Following an October 19, 2015 hearing, a permanency-planning order was entered on January 19, 2015, authorizing a plan of adoption and a petition for termination of parental rights from DHS. Though appellant was referenced as the legal father, the circuit court stated therein that "[h]aving set the goal to be adoption, the Court finds that Brandon Edgar is indigent; the Court finds the putative parent has established significant contacts with the juvenile such that parental rights [h]ave attached." It stated that appellant "shall be removed as a party to this case as he testified today he is not the biological father of the child." Appellant was denied any contact with G.E., and Edgar was granted supervised visitation.

DHS filed a petition for termination of parental rights on November 18, 2015, listing appellant as G.E.'s legal father and Edgar as her putative father. It alleged the following grounds for termination of appellant's rights:

1. That G.E. had been adjudicated dependent-neglected and continued out of appellant's custody for a period of twelve months and the conditions necessitating removal had not been remedied despite a meaningful effort of DHS on account of appellant's conviction and sentence of thirty years' imprisonment for rape;⁷

2. That G.E. had lived outside of appellant's home for a period of twelve months and appellant had willfully failed to provide significant meaningful support or to maintain meaningful contact with G.E. on account of appellant having been imprisoned for the duration of G.E.'s life;⁸

3. That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placing G.E. in appellant's custody is contrary to G.E.'s health, safety, or welfare and that, despite the offer of appropriate family services, appellant has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate his circumstances that prevent the placement of G.E. in his custody on account of his imprisonment for a sentence of thirty years;⁹

4. That appellant was sentenced in a criminal proceeding for a period of time that would constitute a substantial period of G.E.'s life on account of his thirty-year prison sentence;¹⁰

5. That appellant, as the presumptive legal father, was not G.E.'s biological father and her welfare could best be served by terminating appellant's parental rights as the presumptive legal father;¹¹ and

6. That appellant had subjected G.E. to aggravated circumstances where the circuit court determined on March 12, 2015, that there was little likelihood that services to appellant would result in successful reunification "due to Edward Howertons [sic] conviction for rape of an 11 year old victim and 8 year old victim. Both of which are [G.E.'s] siblings."¹²¹³

The circuit court held a hearing on the petition on February 16, 2016.

At the beginning of the hearing, the following exchange ensued:

ATTORNEY FOR MOTHER : Your Honor, I wanted to point out one thing. I don't know if it will make a difference in this hearing, but I found it odd, so you may too. The permanency planning order that was entered on January the 19th of 2006, paragraph 8, specifically stated and found that Mr. Howerton shall be removed as a party to this case. As he testified today, he is not the biological father of the child. So I am not understanding exactly why Mr. Howerton, at this point not being a party in this matter, would be entitled to pursue any rights whatsoever or to defend himself against termination of parental rights to which he does not have.

CIRCUIT COURT : Well, I vaguely remember the hearing, and I think that the Court would have been correct to make a ruling that based upon his testimony and the time of his incarceration and the lack of access for the purposes of intercourse and conception that he couldn't be the biological father supporting his testimony that, in fact, he was not the biological father.

I don't have a problem with all that. I don't remember saying—and I may have very well done that he should be removed as a party to the case. I think that would have if I did that and its [sic] in the order and I signed it, so I guess I did. I think that's an error because he's a legal father, and those legal rights exist, and something has to happen with regard to those legal rights. So I believe—unless some of you have a—want to straighten out my thinking that that's why he's here today in spite of what that order may say.

....

ATTORNEY FOR MOTHER : Well, it was my understanding that Mr. Edgar was found to be the legal father. And to me, I—

CIRCUIT COURT : He was found to be the biological father.

ATTORNEY AD LITEM : Correct.

ATTORNEY FOR MOTHER : Not ever made to be the legal father—

CIRCUIT COURT : I didn't find that he was. Now, if there's an order that said so, there was some—in my review, there was some—and I didn't focus on that particular issue, but my recollection is, from my review, that he said he was father. There was some testimony about access. And he eventually got around to doing some DNA testing that said he was the biological father or maybe his name's on the birth certificate. I don't remember that part. I may have it confused with another case. But I didn't see that we got to the part where we established and maybe we did.

ATTORNEY FOR MOTHER : I'll look for that.

ATTORNEY FOR DHS : Your Honor, the Department has submitted to the Court before a paternity test showing that Brandon Edgar was the biological father.

CIRCUIT COURT : Yeah. I've got that in my notes. I mean, I remember making that finding. I just didn't know what we—

ATTORNEY FOR DHS: I think the hangup was at the time of the—

CIRCUIT COURT : Do you have a birth certificate with his name on it?

ATTORNEY FOR DHS: No, Your Honor, I don't.

CIRCUIT COURT : Because that would—

ATTORNEY FOR DHS: I'm being told we submitted it. But I cannot remember doing so.

CIRCUIT COURT : Okay. Well, if there's a birth certificate with his name on it, then by operation of law, he has rights that the Court has to deal with today. You think it's been offered as an exhibit already? Even if I didn't make a finding of paternity—if y'all can help me, just take a minute and figure that out. Birth certificate of the juvenile naming Brandon Edgar as the biological father. Paternity established 10/19/15 is my note.

Testimony at the hearing was as follows.

Holly Johnson, family services worker for DHS, testified in pertinent part that appellant is the legal father of G.E. due to her mother being married to appellant at the time G.E. was conceived. However,...