Linda Camarillo-Cox v. Arkansas Department of Human ServicesAnnotate this Case
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISIONS I AND II
ARKANSAS DEPARTMENT OF HUMAN SERVICES
September 29, 2004
APPEAL FROM THE BENTON COUNTY CIRCUIT COURT
HON. JAY T. FINCH,
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. § 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.