Laura Farmer v. Arkansas Department of Human Services and S.B. and D.B., Minor Children
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DIVISION I
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
R OBERT J. G LADWIN, Judge
CA06-185
O CTOBER 11, 2006
LAURA FARMER
APPELLANT
V.
ARKANSAS DEPARTM ENT OF
HUMAN SERVICES and S.B. and D.B.,
minor children
APPELLEES
APPEAL FROM THE SHARP COUNTY
CIRCUIT COURT
[NO. JV 2004-122]
HON. KEVIN KING,
JUDGE
AFFIRMED
Appellant Laura Farmer appeals the order of the Sharp County Circuit Court
terminating her parental rights with respect to her two minor children. Appellant’s sole point
on appeal is that the circuit court failed to comply with the mandate of Ark. Code Ann. § 927-316(h) by failing to adequately advise her of her right to be represented by counsel at all
stages of the proceedings and the right to appointed counsel if indigent. We affirm.
Appellant is the mother of S.B., born September 3, 1988, and D.B., born December
4, 1990. On August 6, 2004, appellee Arkansas Department of Human Services (DHS) took
appellant’s two children into custody under a seventy-two hour hold because appellant had
been arrested. DHS filed a petition for emergency custody alleging substantial risk of serious
harm due to the incarceration, a lack of a proper care giver, and environmental neglect. A
probable cause hearing was held on August 10, 2004, at which time the trial court asked
appellant if she wished to be represented by an attorney in this matter or whether she wanted
to go ahead and proceed with the hearing that day. She agreed to proceed, but allegedly she
was not advised at that first appearance that she had a right to be represented by counsel at
all stages of the court proceedings and the right to appointed counsel if indigent.
The next time appellant asserts that she raised the issue of representation was not until
the first review hearing on February 15, 2005. She asked the trial court what she needed to
do to secure representation, at which time the trial court explained that funding for appointed
counsel had been reduced. Appellant was told to wait until the next hearing, but that “in the
event that there’s any possibility the child[ren] will be removed and left in the system or
termination of parental rights” counsel would be appointed. There was apparently a period
of time during which appellant failed to appear for various hearings and did not notify DHS
of her whereabouts or residence. A permanency planning hearing was held on June 21, 2005,
at which time the case goal was set for termination. DHS filed a petition for termination of
parental rights on June 29, 2005.
At the termination hearing set for August 23, 2005, counsel for DHS and the attorney
ad litem requested a continuance because appellant had not been appointed counsel, a
situation which could become an appealable issue. Based upon conflict of interest concerns
expressed by counsel for DHS and the attorney ad litem, counsel was appointed for appellant
and an additional attorney was appointed to jointly represent the two fathers in the case. The
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termination hearing was held on September 13, 2005, and the trial court entered an order
terminating appellant’s parental rights on November 4, 2005. Appellant filed a notice of
appeal on November 23, 2005.
In cases involving the termination of parental rights, there is a heavy burden placed
upon the party seeking to terminate the relationship. Camarillo-Cox v. Ark. Dep’t of Human
Servs., 360 Ark. 340, __ S.W.3d __ (2005); Trout v. Ark. Dep’t of Human Servs., 359 Ark.
283, 197 S.W.3d 486 (2004); Kight v. Ark. Dep’t of Human Servs., __ Ark. App. __, __
S.W.3d __ (Mar. 8, 2006). This is because termination of parental rights is an extreme
remedy in derogation of the natural rights of the parents.
Camarillo-Cox, supra.
Nevertheless, parental rights will not be enforced to the detriment or destruction of the health
and well-being of the child. Id. Thus, parental rights must give way to the best interest of
the child when the natural parents seriously fail to provide reasonable care for their minor
children. Id.
Arkansas Code Annotated section 9-27-341(b)(3) requires that an order terminating
parental rights be based upon clear and convincing evidence. See also Dinkins v. Ark. Dep’t
of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is
that degree of proof that will produce in the factfinder a firm conviction as to the allegation
sought to be established. Id. It is well settled that when the burden of proving a disputed fact
is by clear and convincing evidence, the question that must be answered on appeal is whether
the trial court’s finding that the disputed fact was proven by clear and convincing evidence
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was clearly erroneous. Id. In making this determination, we review the case de novo, but we
give a high degree of deference to the trial court, as it is in a far superior position to observe
the parties before it and 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. Id.
Arkansas Code Annotated section 9-27-316(h) deals with a parent’s right to counsel
in this type situation:
(h)(1)(A) In all proceedings to remove custody from a parent or guardian or to
terminate parental rights, the parent or guardian shall be advised in the
dependency-neglect petition or the ex parte emergency order and the first appearance
before the court of the right to be represented by counsel at all stages of the court
proceedings and the right to appointed counsel if indigent.
(B) A court may appoint counsel for the parent or guardian from whom custody was
removed in the ex parte emergency order.
(2)(A) Upon request by a parent or guardian from whom custody was removed and
a determination by the court of indigence, the court shall appoint counsel for the
parent or guardian from whom custody was removed in all circuit court proceedings
to remove custody or terminate parental rights of a juvenile.
Appellant claims that the trial judge initially failed to advise her of her right to counsel
in direct violation of the statute. Secondly, she claims that the trial judge misled her into
believing that she would be appointed counsel at the hearing following the February 15, 2005
review hearing; however, the subject was not broached again until mentioned by counsel for
DHS at the initially scheduled termination hearing. The trial judge still had not appointed
counsel by the time the original termination hearing was scheduled, and it had to be
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continued to rectify the situation. Even at that point, the trial judge was prompted by counsel
for DHS and the attorney ad litem to appoint appellant counsel separate from that of the two
fathers involved. She contends that the initial violation of the statute negatively impacted
the entire process, and that the trial court’s errors and attitude toward her were clearly
erroneous and require a reversal of the termination.
Appellees assert that, because appellant failed to appeal from the earlier adjudication
hearing in this matter, any error by the trial court was harmless and subsequently corrected
when she was appointed an attorney for the termination hearing. See Jefferson v. Ark. Dep’t
of Human Servs., 356 Ark. 647, 158 S.W.3d 129 (2004) (finding that because the appellant
failed to appeal the adjudication hearing, any errors from being denied counsel could not be
considered with respect to that particular order and did not taint the remainder of the case
where counsel was subsequently appointed).
The Arkansas Supreme Court has generally discussed the indigent parent’s right to
counsel as follows:
Whether due process requires the appointment of counsel in a particular
parental-termination proceeding is a matter for the trial court to determine, subject to
appellate review. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 32, 101 S.Ct.
2153, 68 L.Ed.2d 640 (1981). Although it may be wise public policy for the States
to adopt higher standards of protection for parents in dependency-neglect and
termination proceedings, the threshold requirement for state courts in determining
whether to appoint counsel to indigent parents in termination proceedings is
fundamental fairness. Id., 452 U.S. at 33-34. Consequently, according to the
Supreme Court, there is no absolute due process right to counsel in all
parental-termination proceedings. Id. Rather, it is an issue that must be addressed on
a case-by-case basis. Id. The State of Arkansas has chosen to allow the appointment
of counsel for indigent parents in all parental-termination proceedings. [Ark. Code
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Ann. § ] 9-27-316(h) (Supp.1999). However, this is a State-conferred statutory right.
The due process right to counsel arises only if the circumstances of each particular
case indicate that fundamental fairness requires the appointment of counsel.
Jefferson, 356 Ark. at 652-653, 158 S.W.3d at 133 (2004)(quoting Bearden v. Ark. Dep’t of
Human Servs., 344 Ark. 317, 324-25, 42 S.W.3d 397, 401-02 (2001)). Appellees point out
that whether an indigent parent is entitled to the appointment of counsel is a question for the
trial court, and must be analyzed with the focus on two major factors: (1) whether or not the
case presented any specially troublesome points of law; and (2) whether or not the presence
of counsel could have made a determinative difference. Clark v. Ark. Dep’t of Human Servs.,
90 Ark. App. 446, __ S.W.3d __ (2005). Based upon our statutory language of Ark. Code
Ann. § 9-27-316(h) and the interpretive case law, it is clear that appellant was entitled to
counsel in this matter. The only remaining question is at what point appointment of counsel
was required.
Appellees claim that because appellant failed to abstract the adjudication hearing or
the termination hearing, there is no way for this court to tell whether or not she was
prejudiced by not having an attorney at the earlier proceedings. Rule 4-2(a)(5) of the Rules
of the Supreme Court and Court of Appeals provides in pertinent part that the appellant’s
abstract should consist of an impartial condensation, without comment or emphasis, of such
material parts of the testimony of the witnesses and colloquies between court and counsel as
are necessary to an understanding of all questions presented to the court for decision.
Appellees point out that appellant not only failed to abstract the adjudication, she also failed
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to appeal from the dependency-neglect decision therein. There are other interim hearings that
she failed to abstract, and most importantly, she did not abstract the termination hearing. Her
failure to do so, in addition to her lack of argument as to how she was prejudiced or that the
outcome of the case would have been different if counsel had been appointed earlier, make
it impossible for this court to reverse the trial court’s decision.
We are authorized to go to the record to affirm a trial court’s decision, Hosey v.
Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995), and we do so in this instance. Our supreme
court, in Jefferson, supra, considered whether the failure to provide counsel to the appellant
during the adjudication proceeding permeated or tainted the remainder of the case so as to
deprive the appellant of fundamental fairness in the subsequent proceedings. After reviewing
the record in the instant case, we likewise conclude that the fundamental fairness of the
proceedings leading up to the termination of appellant’s parental rights was not jeopardized
based on the trial court’s failure to provide legal representation to appellant at the earlier
hearings. We note that the order entered on August 23, 2005 appointed an attorney to
represent appellant during the remaining proceedings and specifically stated that the trial
court would not proceed with hearing evidence regarding the termination of appellant’s
parental rights without first providing her with the opportunity to be represented by counsel.
Appellant was present and represented by an attorney at the October 18, 2005 hearing on
DHS’s petition to terminate her parental rights. In that hearing, all the evidence leading up
to termination was revisited. Our supreme court has held that Ark. Code Ann. § 9-27-316(h)
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confers a statutory right to the appointment of counsel for indigent parents in all
parental-termination proceedings. See Jefferson, supra. While we do not advocate such a
delay in the appointment of counsel, especially when specifically requested by a party, we
hold that the trial court’s delay constitutes harmless error in this case and the basic rights
conferred under Ark. Code Ann. § 9-27-316(h) were met prior to the termination hearing.
Accordingly, we affirm.
Affirmed.
R OBBINS and B AKER, JJ., agree.
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