Dustin Tuck v. Arkansas Department of Human Services
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CA08-582
DUSTIN TUCK
Opinion Delivered OCTOBER
8, 2008
APPELLANT
APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT,
[NO. J-05-99]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
HONORABLE MICHAEL MEDLOCK,
JUDGE
REVERSED AND REMANDED
WENDELL GRIFFEN, Judge
1.
PARENT & CHILD – TERMINATION OF PARENT RIGHTS – PROCEDURAL REQUIREMENTS WERE
NOT MET .– Arkansas’s Juvenile Code requires dependency-neglect petitions to set forth the
names of the juvenile’s parents and putative parents and designate them as defendants; it also
provides that all adult defendants shall be served with a copy of the petition and either a
hearing notice or an order to appear, as provided in the Arkansas Rules of Civil Procedure;
here, the Department of Human Services did not make the putative father a defendant for
almost two years despite knowing of his putative fatherhood; furthermore, DHS terminated
the putative father’s parental rights without inviting him to participate in a case plan adn
without offering him family services; clearly, the dictates of Ark. Code Ann. sections 9-27311 and 9-27-312 were not met, nor were basic due-process guarantees.
2.
PARENT &
CHILD
–
TERMINATION OF PARENTAL RIGHTS
FATHER A PARTY WAS NOT HARMLESS ERROR .– DHS’s
–
FAILURE TO MAKE PUTATIVE
failure to make the putative father a
party earlier in the case was not harmless error; there are few things as harmful as a parent
or putative parent’s being excluded from a dependency-neglect proceeding until the moment
the State seeks to terminate his parental rights; and, as stated in Jordan v. Arkansas
Department of Human Services, it could not be presumed that the outcome here would be the
same once the putative father was allowed to participate as a party-defendant and receive
services prior to termination.
3.
PARENT & CHILD – TERMINATION OF PARENTAL RIGHTS – DUTIES OF THE DEPARTMENT OF
HUMAN SERVICES.– DHS and the ad litem attorney argued that the putative father should
have intervened in the case and that his non-participation was due to his own lack of
diligence or enthusiasm; on the contrary, Arkansas law is explicit about the duty of DHS to
provide services to families when instances of dependency and neglect arise; that duty is not
triggered by a parent’s requests; it does not arise only when a parent is diligent or
enthusiastic; the duty to notify a parent or putative parent about a dependency-neglect
proceeding exists to satisfy fundamental fairness.
4.
PRINCIPAL & AGENT – TERMINATION OF PARENTAL RIGHTS – PARTICIPATION IN THE CASE DID
NOT REQUIRE PROOF OF PATERNITY .–
Arkansas Code Annotated § 9-12-311 requires that
parents and putative parents be named as defendants and afforded legal notice in
dependency-neglect proceedings; therefore, the putative father was not required to prove
paternity before he could participate in the case involving his daughter.
Appeal from Crawford Circuit Court; Michael Medlock, Judge; reversed and remanded.
Booth Law Firm, PLC, by: Frank Booth, for appellant.
Gray Allen Turner, Office of Chief Counsel, for appellee.
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WENDELL L. GRIFFEN , Judge.
Dustin Tuck appeals from an order terminating his parental rights in his daughter, AC.
He argues that he was denied assistance of counsel; that the Arkansas Department of Human
Services (DHS) failed to join him as a party until it moved to terminate his parental rights; and
that the evidence was insufficient to warrant termination. We agree with appellant that DHS
should have included him in the case earlier in the proceedings. We therefore reverse and
remand the termination order.
AC was born on September 7, 2003, to a single, sixteen-year-old mother. The father,
appellant Dustin Tuck, was married to another woman when the child was born. On April
27, 2005, the Crawford County Sheriff took the mother and AC into custody, based on the
mother’s status as a runaway and as a juvenile in an existing dependency-neglect case. DHS
petitioned for emergency custody of AC, which the circuit court granted. The petition and
custody order listed AC’s father as unknown.
On or about June 1, 2005, DHS prepared a case plan that established services for the
mother and child. The last page of the plan listed appellant as AC’s father. However, the
ensuing probable-cause and adjudication orders did not name appellant as a party; nor is there
evidence that DHS notified appellant of the hearings. The court adjudicated AC as a
dependent juvenile, due to her mother being under eighteen and in DHS custody, and both
were placed in foster care together. Thereafter, the court’s orders, including a May 2006
permanency-planning order, continued this living arrangement while still listing AC’s father
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as unknown.
In November 2006, a DHS report declared that appellant had visited the agency’s
office about a year earlier, in October 2005, claiming that he was AC’s biological father.
Other DHS documents from late 2006 state that, in December of that year, appellant attended
a DHS staffing, expressed an interest in visiting AC, and received background-information
forms. The mother even identified appellant as AC’s father during her interactions with a
CASA volunteer. A subsequent DHS report, dated January 2007, recognized appellant as AC’s
putative father. There is nothing in the record that suggests that paternity was disputed at any
time. However, DHS still did not make appellant a party to the case. Consequently, he was
not provided with services or named a defendant in any review and planning orders entered
from mid 2005 to early 2007.
On April 9, 2007, DHS filed its termination-of-parental-rights petition. For the first
time, appellant’s name was listed in the caption, describing him as the putative father of AC.
DHS alleged that appellant’s parental rights should be terminated because he failed to establish
paternity; failed to visit or provide support for AC; failed to maintain contact with DHS;
failed to maintain stable housing and employment; and, inexplicably, failed to comply with
case-plan goals or court orders to which he was not a party. Appellant was served with the
petition and filed a hand-written response denying its allegations.
The court scheduled a termination hearing for June 2007, but continued it twice so
appellant could hire an attorney. Once appellant did so, his attorney immediately filed a
motion for a paternity test. Appellant took the test in November 2007, and the court set a
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termination hearing for January 2008. Appellant objected, arguing that he was never advised
of any case-plan goals and that a case plan should be established for him prior to a termination
hearing. The trial court declined to continue the hearing, and it proceeded as scheduled once
appellant’s paternity of AC was established.
At the hearing, the trial court considered the testimony of several witnesses, then
terminated appellant’s parental rights in AC.1 Ordinarily at this point, we would recount the
evidence regarding appellant’s fitness as a parent. However, we need not do so because
reversible error occurred at the outset of this case.
We have said it so frequently that it is now axiomatic: few consequences of judicial
action are so grave as the severance of natural family ties. See Osborne v. Ark. Dep’t of Human
Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007). As long as there is reason to believe that
positive, nurturing parent-child relationships exist, the law favors preservation, not severance,
of natural familial bonds. See Santosky v. Kramer, 455 U.S. 745 (1982); Benedict v. Ark. Dep’t
of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006). Once a child has been
adjudicated dependent-neglected, there is a presumption that DHS will provide services to
preserve and strengthen the family unit. Benedict, supra. A parent’s right to the care and control
of his or her child is a fundamental liberty, and termination of parental rights is an extreme
remedy in derogation of those rights. See Jones v. Ark. Dep’t of Human Servs., 361 Ark. 164,
205 S.W.3d 778 (2005). This fundamental liberty interest does not evaporate simply because
1
The court had already terminated the mother’s parental rights. She is not a party
to this appeal.
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the mother and father have not been model parents. See Osborne, supra. Even when blood
relationships are strained, parents retain a vital interest in preventing the irretrievable
destruction of their family life. Id. If anything, persons faced with forced dissolution of their
parental rights have a more critical need for procedural protections than do those resisting
State intervention into ongoing family affairs. Id.
Accordingly, when the State moves to destroy weakened familial bonds, it must
provide parents with fundamentally fair procedures. See id. Our Juvenile Code requires a
dependency-neglect petition to set forth the names of the juvenile’s parents and putative
parents and designate them as defendants. Ark. Code Ann. §§ 9-27-311(a)(2), (a)(6), and (c)
(Repl. 2008). It also provides that all adult defendants shall be served with a copy of the
petition and either a hearing notice or an order to appear, as provided in the Arkansas Rules
of Civil Procedure. Ark. Code Ann. § 9-27-312 (Repl. 2008). These elemental protections
serve to identify the juvenile and his parents, place them within the system, and facilitate the
provision of services in hopes of preserving the family.
[1] Here, for reasons we cannot fathom, DHS did not make appellant a defendant for
almost two years despite knowing of his putative fatherhood. And, to compound this grievous
error, appellant’s parental rights were terminated without his ever being the subject of a case
plan or receiving family services. Clearly, the dictates of sections 9-27-311 and 9-27-312 were
not met, nor were basic due-process guarantees. See Jorden v. Ark. Dep’t of Human Servs., 73
Ark. App. 1, 38 S.W.3d 914 (2001) (holding that a putative father has standing to participate
in a dependency-neglect proceeding by virtue of being a defendant under Ark. Code Ann.
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§ 9-12-311(c)).
[2] The agency and the ad litem attorney concede that appellant should have been
made a party earlier in the case. However, they argue that the failure to do so was harmless
error. We disagree. We can envision few things as harmful as a parent or putative parent’s
being excluded from a dependency-neglect proceeding until the moment the State seeks to
terminate his parental rights. As we stated in Jorden, supra:
[W]e cannot presume that the results of any of the issues will be the same once [the
putative father] is allowed to participate in the proceedings on remand. Therefore, our
conclusion that the trial court erred in finding that [the putative father] had no
standing is determinative of all the issues raised on appeal, requiring that we reverse
and remand on all of them.
73 Ark. App. at 3, 38 S.W.3d at 915-16. Likewise, in the present case, we cannot presume
that the outcome will be the same once appellant is allowed to participate as a party-defendant
and receive services prior to termination.
[3] DHS and the ad litem attorney also argue that appellant should have intervened in
the case and that his non-participation was due to his own lack of diligence or enthusiasm.
That argument must be addressed. As previously mentioned in this opinion, Arkansas law is
explicit about the duty of the Department of Human Services to provide services to families
when instances of dependency and neglect arise. That duty is not triggered by requests by
parents. It does not arise because parents are diligent or enthusiastic. The duty to notify a
parent or putative parent about a dependency-neglect proceeding exists to satisfy fundamental
fairness. Put bluntly, it is fundamentally unfair for a parent or putative parent to be denied
legal participation in a proceeding that involves his child. The only thing more unfair would
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be to terminate parental rights without such notice and opportunity to participate, as occurred
in this case.
[4] Remarkably, DHS also argues that appellant was required to prove paternity before
he could participate in the case involving AC. That argument is directly refuted by the plain
language of Ark. Code Ann. § 9-12-311, which requires that parents and putative parents be
named as defendants and afforded legal notice in dependency-neglect proceedings.
Finally, the disturbing history of this case, where DHS sought to terminate the parental
rights of a putative father after denying him an opportunity to participate in dependencyneglect proceedings and offering no services to him for almost two years, prompts yet another
disquieting concern. It is troubling enough whenever a child has been neglected by a parent.
Here, the governmental agency responsible for helping stabilize the family by providing
support services to the child and parent refused to even involve appellant until it sought to
terminate his parental rights, and never included appellant in any plan concerning his
daughter’s care. We expect that the refusal by DHS to perform its duties and the manifestly
invalid reasons for that non-performance will be rectified on remand.
Reversed and remanded.
H ART and H UNT, JJ., agree.
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