Ross v. Ark. Dep't of Human Servs
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Cite as 2010 Ark. App. 660
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA10-605
Opinion Delivered O CTOBER 6, 2010
JAMES ROSS
APPELLANT
V.
ARKANSAS DEP’T OF HUMAN
SERVICES, and MINOR CHILDREN
APPELLEES
APPEAL FROM THE CLARK
COUNTY CIRCUIT COURT,
[NO. JV-2008-151]
HONORABLE ROBERT E.
McCALLUM, JUDGE
AFFIRMED
ROBERT J. GLADWIN, Judge
Appellant James Ross appeals the order of the Clark County Circuit Court terminating
his parental rights with respect to his minor children, J.R.(1), S.R., and J.R.(2). He argues
that the termination of his parental rights was not authorized by Arkansas Code Annotated
section 9-27-341(a)(3) (Supp. 2009) and was not in the children’s best interest. We affirm.
According to an affidavit filed with the petition for emergency custody, on August 27,
2008, the Arkansas Department of Human Services (DHS) opened a protective-services case
on the Ross family after receiving a report that appellant had abused Mrs. Ross’s son, D.S.,
who was not appellant’s legal child. On September 24, 2008, after developing a safety plan,
DHS took D.S. and the Rosses’ two children, J.R.(1) and S.R., into custody after Mrs. Ross
failed a drug screen.
Cite as 2010 Ark. App. 660
At the adjudication hearing held on November 12, 2008, the circuit court found the
children to be dependent-neglected and set a concurrent goal of reunification or relative
placement with the maternal grandparents, who were caring for the children while they were
in DHS custody. The circuit court ordered various services for appellant and his wife,
including individual and family therapy, drug and alcohol assessment, random drug screens,
parenting classes, and for appellant, anger-management classes.
At some point during the case, Mrs. Ross was sentenced to the Arkansas Department
of Correction (DOC); the record does not reveal precisely when this occurred, but the circuit
court appointed DOC parent counsel to represent her at the February 9, 2009 review hearing.
While Mrs. Ross was in prison, she gave birth to the Rosses’ third child, J.R.(2), on April 13,
2009, and DHS took J.R.(2) into custody as well. The circuit court adjudicated J.R.(2)
dependent-neglected on May 11, 2009, and likewise set the goal for her as reunification or
relative placement.
On October 13, 2009, appellant was committed to the DOC on the revocation of his
probation for domestic battery and possession of an instrument of a crime. The revocation
was based on violations of the commission of residential burglary and aggravated assault that
arose pursuant to an incident on July 11, 2009, as well as his failure to report to his probation
officer. He has remained incarcerated since that time.
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Cite as 2010 Ark. App. 660
DHS filed a petition to terminate appellant’s parental rights on September 28, 2009,
and after a hearing held on December 14, 2009, the court granted the petition in an order
filed on March 15, 2010. Appellant filed a timely notice of appeal on April 5, 2010.
An order forever terminating parental rights must be based on clear and convincing
evidence that termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A)
(Supp. 2009). Additionally, DHS must prove at least one statutory ground for termination by
clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2009). Our
statute provides, as a ground for termination, that the child has been adjudicated
dependent-neglected and has continued out of the custody of the parent for twelve months
and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions
that caused removal, those conditions have not been remedied by the parent. Ark. Code
Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2009).
We review cases involving the termination of parental rights de novo. Griffin v. Ark.
Dep’t of Health & Human Servs., 95 Ark. App. 322, 236 S.W.3d 570 (2006). However,
although we review the factual basis for terminating parental rights under a clearly erroneous
standard, no deference is given to the circuit court’s decision with regard to errors of law. Id.
Appellant does not specifically challenge the circuit court’s determination that statutory
grounds existed under Arkansas Code Annotated section 9-27-341(b)(3)(B) for the
termination of his parental rights, arguing instead that the decision was not in the children’s
best interests. Ark. Code Ann. § 9-27-341(a)(3)(A) (Supp. 2009). He challenges whether the
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Cite as 2010 Ark. App. 660
relevant statutes permit a circuit court to terminate the rights of one of the children’s parents,
but not the other, when the parents are still married to one another and the plan is for the
children to potentially return to the remaining parent. In the instant case, he claims that there
are no compelling reasons to terminate his parental rights and that it is contrary to the
children’s best interests to do so.
Appellant notes that the public interest behind the termination process is to protect
children who have been abused or neglected, removed from their parents’ custody and placed
in foster care, because their impermanent status works against their welfare and best interests.
Hathcock v. Ark. Dep’t of Human Servs., 347 Ark. 819, 69 S.W.3d 6 (2002); see also Ark. Code
Ann. § 9-27-341(a)(2)–(3) (Supp. 2009). In this case, appellant argues that his children’s fate
was not indeterminate, as DHS’s plan was to return them to their mother’s custody in the
near future, or failing that, to grant permanent custody to their maternal grandparents.
Citing Caldwell v. Arkansas Department of Human Services, 2010 Ark. App. 102, appellant
notes that this court addressed a similar situation and found that the termination of parental
rights was clearly erroneous because the plan for the child in question was to remain in her
mother’s custody. Observing that, in considering the child’s best interest, the circuit court
is to consider, inter alia, the likelihood that the children will be adopted if the petition is
granted, the court held that because the child was not going to be placed for adoption but
would be returned to her mother, termination of the appellant’s parental rights would not
serve to achieve permanency for the child. Id. Under these circumstances, appellant contends
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that the relevant statutes do not authorize termination of appellant’s parental rights, and the
trial court erred in granting DHS’s petition.
We disagree. Termination of parental rights must be in the child’s best interest and be
based on at least one of the nine statutory grounds provided under Arkansas Code Annotated
section 9-27-341(b)(3). The circuit court found that both elements were met in the instant
case.
We note that the overall evidence—not proof of each factor—must demonstrate that
termination of parental rights is in the child’s best interest. McFarland v. Ark. Dep’t of Human
Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). The potential-harm evidence moreover
must be viewed in a forward-looking manner and considered in broad terms. Dowdy v. Ark.
Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722; Lee v. Ark. Dep’t of Human
Servs., 102 Ark. App. 337, 285 S.W.3d 277 (2008).
The record contains the following evidence related to the potential-harm issue. On
August 27, 2008, DHS received a report which stated that appellant had struck D.S. on the
face or head. A month later, appellant and Mrs. Ross agreed to a safety plan with DHS. The
Rosses promised to submit to random drug screens; however, that same day Mrs. Ross tested
positive for cocaine, methamphetamine, and marijuana. As a result, DHS took an immediate
seventy-two-hour emergency hold on D.S, J.R.(l), and S.R. The circuit court found the
children dependent-neglected, and reunification and relative placement were the concurrent
case goals. The children were ordered to remain in foster care. Eight months later, J.R.(2)
was born, taken into DHS’s custody, and also found dependent-neglected.
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Cite as 2010 Ark. App. 660
In July 2009, appellant left Arkansas and went to Arizona. He claimed that he did so
because his wife had been raped, but testimony at his October 2009 probation-revocation
hearing1 revealed an alternate reason. In July 2009, appellant and Frances Hargis broke into
Danny and Amanda Wilson’s home while the Wilson children were present. Appellant held
a knife to Danny Wilson’s throat, and Frances Hargis attacked Amanda Wilson. Amanda
Wilson required hospitalization for the treatment of her injuries. Appellant’s probation was
revoked, and he was sentenced to six years’ imprisonment.
Appellant acknowledged at the termination hearing that DHS had done all that it
could, yet he failed to comply with the case plan that was designed to reunite him with his
children. He failed to follow the circuit court’s recommendation to attend Alcoholics
Anonymous/Narcotics Anonymous meetings, based upon his drug-and-alcohol assessment.
Appellant also admitted that he did not comply with the case plan, and that, since he left
Arkansas in July 2009, he had not seen the children. Additional testimony revealed that he
neither attended the court-ordered individual counseling that was recommended in his
psychological evaluation nor contacted DHS three times per week as ordered by the circuit
court.
Given these facts, we agree that there are significant concerns about appellant’s ability
to protect and care for his children and satisfy their physical and intellectual developmental
1
Appellant previously pled guilty to a charge of felony possession of a firearm and two
counts of third-degree domestic battery and was sentenced to probation.
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needs. The evidence demonstrates that the termination of appellant’s parental rights was in
the children’s best interest and does not leave a definite and firm conviction that a mistake was
made.
We disagree with appellant’s argument that, because his wife’s parental rights were not
terminated, the circuit court was precluded from finding that termination of his parental rights
was in the children’s best interests. Although he cites Caldwell, supra, where this court
reversed the circuit court’s termination of only the father’s parental rights, we have previously
held that the relevant statutes permit the termination of just one parent’s parental rights. See
Hall v. Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008); Griffin, supra.
In Caldwell, this court simply concluded that the circuit court’s best-interest finding in
that particular case was clearly erroneous. We hold that Caldwell is distinguishable from this
case in that (1) there was no evidence that the father physically abused or harmed his child;
(2) the paternal grandmother was the child’s most stable influence, while there is no evidence
that any member of appellant’s family had such an influence on any of his children; (3) there
was no evidence that the father had hurt anyone after the DHS case began.
In Hall, this court terminated the parental rights of a father who had subjected his child
to aggravated circumstances. The circuit court in the instant case found that appellant
likewise had subjected his children to aggravated circumstances, and appellant does not contest
this finding. We acknowledge that this case presents the fairly unique question of terminating
the parental rights of only one of the married parents of the children when the goal of the
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case, at the time of the termination hearing, was to return custody of the children to the other
married parent or to the children’s custodial grandparents. The record reveals that appellant
was separated from the family home by his imprisonment on his probation revocation and
likely would be for a significantly longer period of time pending the adjudication of the new
charges against him. The record does not reveal Mrs. Ross’s future plans regarding her
marriage to appellant, however, as she was not present at the termination hearing.
Appellant raises additional potential options, including the unlikely scenario of the
circuit court requiring Mrs. Ross to divorce him versus the imposition of a protection plan,
which could include precluding any unsupervised contact between the children and appellant.
He suggests that, if the termination order were reversed, a juvenile court—and certainly a
divorce court should Mrs. Ross choose that option—could require him to support his
children while they were in their mother’s or grandparents’ custody. Appellant submits that
under Hall, if his rights are terminated, he has no obligation whatsoever to pay any support,
or do anything else, for his children. See Hall, 101 Ark. App. at 423, 278 S.W.3d at 613. Yet
because he and Mrs. Ross remain married, he claims he would still be in their lives but not
in any way responsible for them.2 Appellant argues that this court’s rationale in Caldwell,
supra, should control because terminating his rights under these circumstances would not serve
to achieve permanency for the children.
2
It was noted to the circuit court at the hearing that the termination of appellant’s
parental rights would not divest the right of the children to inherit from him unless and until
a final order of adoption is entered. Ark. Code Ann. § 9-27-341(c)(1) (Supp. 2009).
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Cite as 2010 Ark. App. 660
The relevant statute does not prohibit the termination of only one parent’s rights to
his or her children, see Arkansas Code Annotated section 9-27-341(c)(2)(A)(i); see also Hall,
supra, and Griffin, supra. But it cannot be disputed that, in the vast majority of termination-ofparental-rights appeals before this court, the parents are not married to each other and the goal
of the case is to place the children for adoption or at least to permanently place them with
someone other than either parent. However, under our standard of review, we hold that
sufficient statutory grounds for termination were presented and not disputed by appellant in
his appeal. Additionally, we decline to hold that the circuit court was clearly erroneous in its
determination that terminating appellant’s parental rights was in the best interest of the
children. See Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255
S.W.3d 505 (2007).
Affirmed.
G LOVER and A BRAMSON, JJ., agree.
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