Martin v. Ark. Dep't of Human Servs. , 465 S.W.3d 881 ( 2015 )

2015 Ark. App. 407ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-110
Opinion Delivered June 17, 2015
ERIC MARTIN APPEAL FROM THE RANDOLPH
APPELLANT COUNTY CIRCUIT COURT
[No. JV-2012-146]
V. HONORABLE KEVIN NEIL KING,
JUDGE
ARKANSAS DEPARTMENT OF HUMAN
SERVICES and MINOR CHILD
APPELLEES AFFIRMED
LARRY D. VAUGHT, Judge
Appellant, Eric Martin, appeals the Randolph County Circuit Court’s termination of
his parental rights to his son, J.M. On appeal, he argues that the court erred in denying his
request for a continuance of the termination hearing and that there was insufficient evidence
that the Department of Human Services (DHS) had provided him with enough time to
reunify with J.M. We affirm.
Martin is the biological father of J.M., born October 29, 2012. At the time of J.M.’s
birth, Martin was incarcerated. Martin was released, but he was again incarcerated on August
21, 2013. He was released on May 29, 2014. He reported to DHS on June 2, 2014, set up a
paternity-testing appointment, and began parenting classes. He completed paternity testing
on June 12, 2014, which confirmed that he was the biological father of J.M. He was
scheduled to attend a second parenting class and a DHS staffing on July 14, 2014, but he did
not appear. Martin stated that he had misunderstood the time of the appointments. The
2015 Ark. App. 407parenting class was rescheduled for the following day, and the staffing was rescheduled for
July 22. Martin did not appear for either appointment. On July 31, 2014, the DHS
caseworker went to Martin’s home and provided him with information about reunification
services that would be provided to him. At that time, he failed a drug screening; he tested
positive for THC and benzos. DHS employees then tried to call him multiple times to
reschedule the parenting class and the staffing, but he did not return their calls. On August
13, 2014, DHS learned that Martin had been arrested and was incarcerated again. On August
18, Martin contacted his DHS caseworker from jail and asked her to visit him. On August
21, the DHS worker went to the Randolph County jail and spoke with Martin regarding his
case. She informed him that the termination-of-parental-rights (TPR) petition had been filed
and that there was a TPR hearing set for September 30. She advised him that, if there were
relatives interested in taking J.M., they should contact her for a home study. On September
10, DHS learned that Martin’s probation had been revoked and he was serving a sentence in
the Arkansas Department of Correction (ADC). The DHS case worker testified that, during
the brief period when Martin was not incarcerated, he never exercised visitation with or sent
anything to J.M.; he also never sent the child anything. No relatives ever contacted DHS
about a home study.
At the beginning of the termination hearing on November 18, 2014, Martin moved
for a continuance. He stated that he would be released from the ADC in March 2015. He
also stated that his father wanted to complete a home study in order to take J.M. The court
denied the motion.
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2015 Ark. App. 407On December 9, 2014, the court entered an order terminating Martin’s parental rights
to J.M. 1 The court found that J.M. had lived outside the home for at least twelve months and
that Martin had willfully failed to provide significant material support in accordance with his
means or to maintain meaningful contact with J.M. Specifically, the court found that Martin
had not maintained a relationship of any kind with J.M., even when Martin was not
incarcerated. The court further found that other factors had arisen subsequent to J.M.’s
placement in DHS custody that demonstrated that placement with Martin would be contrary
to J.M.’s health, safety, or welfare and that Martin’s incapacity or indifference to remedy
those issues prevented placement of J.M. with him. Specifically, Martin did not follow
through with parenting classes or attend staffing appointments. He did not abstain from
drugs and alcohol. He did not comply with the terms of his probation and was subsequently
incarcerated. The court also found that Martin had subjected J.M. to aggravated
circumstances, and that there was little likelihood that further services to Martin would result
in successful reunification. Martin filed a timely notice of appeal.
We review termination-of-parental-rights cases de novo. Thompkins v. Ark. Dep’t of
Human Servs., 2014 Ark. App. 413, at 2, 439 S.W.3d 81, 83. At least one statutory ground
must exist, in addition to a finding that it is in the child’s best interest to terminate parental
rights; these must be proved by clear and convincing evidence. Id. (citing Ark. Code Ann. §
9-27-341 (Supp. 2013)). Clear and convincing evidence is that degree of proof that will
produce in the fact-finder a firm conviction as to the allegation sought to be established. Id.1
The order also terminated the parental rights of Kevin Richey as to J.M.’s half sister.
The mother’s rights as to both children had been previously terminated. None of those
terminations are at issue in this appeal.
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2015 Ark. App. 407at 2, 439 S.W.3d at 83. The appellate inquiry is whether the trial court’s finding that the
disputed fact was proved by clear and convincing evidence is clearly erroneous. Id.
Martin’s first argument on appeal is that the trial court erred in denying his motion
for a continuance. A motion for continuance should be granted only upon a showing of
good cause. Butler v. Ark. Dep’t of Human Servs., 2010 Ark. App. 570, at 4. We will not reverse
a denial of a motion for continuance absent an abuse of discretion amounting to denial of
justice. Smith v. Ark. Dep’t of Human Servs., 93 Ark. App. 395, 401, 219 S.W.3d 705, 708
(2005). Lack of diligence by the moving party is a sufficient reason to deny a motion for
continuance. Id., 219 S.W.3d at 708. Additionally, we will not reverse absent a showing of
prejudice from the denial of the motion for continuance. Id., 219 S.W.3d at 708. Here, the
trial court did not abuse its discretion, and Martin cannot demonstrate prejudice. Martin did
not request the continuance until the beginning of the termination hearing, which
demonstrated a lack of diligence sufficient to support the denial. Moreover, there was no
prejudice because Martin’s past behavior indicated that, even if the court allowed a
continuance until he was released from prison, he was not likely to follow through with all of
the steps necessary for reunification. Finally, although the DHS worker had advised Martin
months earlier that, if there was a relative interested in placement, the relative should contact
DHS and get a home study. This was never done. Despite knowing that Martin was
incarcerated and that J.M. was in foster care, Martin’s father made no efforts to obtain
custody of J.M. prior to the termination hearing. The trial court’s decision to deny Martin’s
request for a continuance was not an abuse of discretion.
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2015 Ark. App. 407Martin next argues that there was insufficient evidence that DHS had provided him
with sufficient time to utilize reunification services and attempt to reunify with J.M. The
court explicitly found that, despite being free for several months, Martin failed to follow
through with reunification services. He never exercised visitation, never sent J.M. letters,
never provided material support, and did not refrain from drug and alcohol use or criminal
activity. The goal of the termination statute is to provide permanency for the minor child,
Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 332, 255 S.W.3d 505,
507 (2007), which would have been thwarted had the court granted Martin’s request for an
indefinite extension of time. Finally, Martin has not challenged the court’s findings as to the
statutory grounds for termination or J.M.’s best interest. Therefore, Martin has asserted no
legal basis for reversal of the trial court’s order terminating his parental rights to J.M. See
Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, at 8, 378 S.W.3d 290, 295 (explaining
that termination of parental rights is a two-step process that requires the circuit court to find
that the parent is unfit based on at least one statutory ground for termination and that
termination is in the best interest of the child).
Affirmed.
HARRISON and GRUBER, JJ., agree.
Terry Goodwin Jones, for appellant.
Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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