Northcross v. Ark. Dep't of Human Servs., CV–18–106

• Citation: 550 S.W.3d 919
• Decision Date: 23 May 2018
• Docket Number: No. CV–18–106,CV–18–106
• Parties: Fred NORTHCROSS, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
• Court: Court of Appeals of Arkansas

550 S.W.3d 919

Fred NORTHCROSS, Appellant

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

No. CV–18–106

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: May 23, 2018

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

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

ROBERT J. GLADWIN, Judge

The Madison County Circuit Court terminated Fred Northcross's parental rights by order filed November 21, 2017. Northcross appeals, arguing that the statutory grounds relied on by the circuit court are not legally applicable to him; thus, he claims that the termination-of-parental-rights (TPR) order must fail. We agree with Northcross's argument and reverse and remand to the circuit court.

I. Facts and Procedural History

Appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect (DN) on June 6, 2017, alleging in the attached affidavit that Northcross had been arrested for possession of methamphetamine and child endangerment on June 1, 2017. Northcross was identified in the petition as the putative father of two children, C.G., born February 28, 2014, and K.G., born May 11, 2016. The children were with Northcross at the time of his arrest, but he denied knowing them. Their mother, Tracy George, tested positive for methamphetamine and amphetamines when she arrived to retrieve them.¹ She later admitted to daily methamphetamine use. DHS took a 72–hour hold on the children, and the circuit court filed an ex parte order for emergency custody reflecting that DHS had been involved with the family since 2009 and that the family had been provided with counseling, drug screens, and drug rehabilitation in the past. However, these services did not prevent removal, as both parents continued to be involved with drugs as described.

The probable-cause order states that Northcross is the putative father and that probable cause existed for the children to remain in DHS custody. George and Northcross were ordered to comply with all requirements contained in the order. Northcross was also ordered to resolve all criminal charges.

In the adjudication-and-disposition order, Northcross was again listed as the putative father. The circuit court found by a preponderance of the evidence that the children were DN due to neglect and parental unfitness, noting the use and dealing of illegal drugs by the parents and Northcross's denial that he knew the children when he was arrested. The circuit court found that the children had been subjected to aggravated circumstances and that there was little likelihood that services to the family would result in successful reunification. The circuit court noted that the parents had their rights previously terminated on another child due to the same issues present in this case.²

DHS filed a TPR petition on July 31, 2017, alleging that Northcross is the putative father and that paternity had not been established. DHS listed the statutory grounds of aggravated circumstances, Ark. Code Ann. § 9–27–341(b)(3)(B)(ix)(a)(3)(A) (Supp. 2017), and prior involuntary termination of parental rights to a sibling of the child, Ark. Code Ann. § 9–27–341(b)(3)(B)(ix)(a)(4) . DHS alleged that the children would be subjected to potential harm if returned to the custody of George and Northcross.

A no-reunification-services and permanency-planning order reiterated that the children had been removed from the home and placed in DHS custody because their parents were using and selling illegal drugs. Further, Northcross was listed as the putative father. The circuit court changed the goal of the case to adoption and found that the parents were not complying with the case plan. Specifically, the circuit court found that Northcross, the putative father, had not complied with any of the court orders or the case plan. The circuit court found that he had made minimal progress toward alleviating the cause of the children's removal from the home and completing the court orders and requirements.

Northcross was notified of his right to have an attorney represent him at the termination hearing, and he was allowed visitation once a week for one hour. He was also ordered to have a drug-and-alcohol assessment, follow the recommendation, and attend "Celebrate Recovery at the skating rink." Northcross was ordered to submit to DNA testing and resolve the issue of paternity. Northcross was given two weeks to complete the DNA testing and sign a release of information if he were to be accepted into drug court. If accepted into drug court, Northcross was to successfully complete it and follow the rules.

The circuit court specifically found that DHS proved by clear and convincing evidence that the "mother and father" had subjected the children to aggravated circumstances. Those circumstances were that there was little likelihood that services to the family would result in successful reunification because "the parents" had previously received services for the same issues in a prior case that resulted in the placement of two siblings with relatives.

DHS filed an amended TPR petition listing Northcross as the putative father and alleging that at the time of removal of the children, he had physical care and control of them. DHS asserted that DNA testing revealed that Northcross is the biological father of both children. DHS alleged that the circuit court had appointed counsel to Northcross at the permanency-planning hearing, that Northcross had sufficient contacts with the children for parental rights to attach, and that the court should terminate those rights. DHS asked for a specific finding that parental rights had attached or that they had not. If they had not, DHS asked that the circuit court dismiss Northcross because it is reversible error to terminate rights when those rights do not exist. If rights had attached, DHS asked that the circuit court terminate Northcross's parental rights because there were grounds to do so and it was in the children's best interest. DHS alleged the grounds of "other factors" or issues that arose subsequent to the filing of the original petition, Ark. Code Ann. § 9–27–341(b)(3)(B)(vii)(a) , and "aggravated circumstances," Ark. Code Ann. § 9–27–341(b)(3)(B)(ix)(a)(3)(B)(i) .

After a hearing on October 27, 2017, the circuit court ordered that Northcross's parental rights should be terminated based on the statutory grounds listed in DHS's petition. However, the order contains no finding that Northcross is the parent. Northcross is listed in the style of the order as "putative father" but is included in the order's opening paragraph listing those present as "Father, Fred Northcross." In paragraph 2 of the termination order, the circuit court found that "[t]he father was served pursuant to Rule 4, specifically the father was served through substitute service while incarcerated[.]" The circuit court noted in the same paragraph that "both parents have received proper notice of this proceeding." Northcross is referred to as "father" in the circuit court's findings regarding both statutory grounds, save for one reference to him as the "putative father," and both parties are referred to collectively as "parents."

The circuit court found that it was in the children's best interest that parental rights be terminated and specifically considered the likelihood that they would be adopted. The circuit court also found that it had considered the potential harm to the children if placed back in their parents' custody.

II. Standard of Review and Applicable Law

Northcross filed a timely notice of appeal. On appeal, he challenges the legality of the circuit court's order because Northcross was listed as the "putative" father and the grounds for termination pertain to the "parent." Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents.

Earls v. Ark. Dep't of Human Servs. , 2017 Ark. 171, 518 S.W.3d 81. We review termination-of-parental-rights cases de novo. Harjo v. Ark. Dep't of Human Servs. , 2018 Ark. App. 268, 548 S.W.3d 865. At least one statutory ground must exist, in addition to a finding that it is in the children's best interest to terminate parental rights. Ark. Code Ann. § 9–27–341 ; Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, 544 S.W.3d 595. We will not reverse the circuit court's ruling unless its findings are clearly erroneous. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.

[W]e review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss , 360 Ark. 388, 201 S.W.3d 900 (2005) ; Monday v. Canal Ins. Co. , 348 Ark. 435, 73 S.W.3d 594 (2002). Thus, although we are not bound by the trial court's interpretation, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.

The basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss , 361 Ark. 153, 205 S.W.3d 767 (2005) ; Arkansas Tobacco Control Bd. v. Santa Fe Natural Tobacco Co., Inc. , 360 Ark. 32, 199 S.W.3d 656 (2004). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible. Id.

Dep't of Human Servs. v. Howard , 367 Ark. 55, 61–62, 238 S.W.3d 1, 5–6 (2006). When the language of a...