Linda Camarillo-Cox v. Arkansas Department of Human Services

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ca03-861

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISIONS I AND II

LINDA CAMARILLO-COX

APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-861

September 29, 2004

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. J2001-405-D/N]

HON. JAY T. FINCH,

JUDGE

DISSENT FROM DENIAL OF PETITION FOR REHEARING

John Mauzy Pittman, Judge

In our opinion of June 16, 2004, we reversed the trial court's finding that the children had been out of the home for at least twelve months without appellant having remedied the conditions causing removal. I believe that we were in error, and I would grant appellee's petition for rehearing and affirm the trial court's decision.

Our opinion expressly found that appellant "undoubtedly" could not or would not remedy the conditions causing removal during the first twelve months that the children were out of the home. However, rather than affirming on that basis, we reversed on the strength of our finding that appellant had subsequently remedied the conditions causing removal. I agree with the petitioner's argument that we misconstrued the legislature's plain intent in establishing a twelve-month period in which to rectify the conditions, especially in light of the express provision that:

It is not necessary that the twelve-month period referenced in subdivision (b)(3)(B)(i) of this section immediately precede the filing of the petition for termination of parental rights or that it be for twelve (12) consecutive months...

Ark. Code Ann. ยง 9-27-341(b)(3)(B)(i)(b) (Repl. 2002).

Furthermore, although there was some evidence that a degree of progress was made following the expiration of the twelve-month period, this evidence was not so compelling as to require a finding that appellant had remedied the conditions causing removal. In my view, we have both erroneously construed the statute and failed to accord the trial court's findings the deference to which they were entitled, and I respectfully dissent.

Neal, J., joins in this dissent.