Earls v. Ark. Dep't of Human Servs. , 518 S.W.3d 81 ( 2017 )

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SUPREME COURT OF ARKANSAS
No. CV-17-112
JACOB EARLS Opinion Delivered May 11, 2017
APPELLANT
APPEAL FROM THE GREENE
V. COUNTY CIRCUIT COURT
[NO. 29JV-14-99]
ARKANSAS DEPARTMENT OF HONORABLE BARBARA HALSEY,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN, S.M. AND D.M.
APPELLEES REVERSED AND REMANDED;
COURT OF APPEALS’ OPINION
VACATED.
KAREN R. BAKER, Associate Justice
This appeal stems from the termination of parental rights of appellant, Jacob Earls, to
his children, twins S.M. and D.M., both born on July 16, 2014. After the twins tested
positive for methamphetamine, appellee, the Arkansas Department of Human Services
(hereinafter “DHS”), initiated dependency-neglect proceedings on July 30, 2014, and
ultimately the termination of parental rights proceedings that are the subject of this appeal.
On July 27, 2014, the twins were removed from their mother’s custody after they
tested positive for drugs. On July 31, 2014, the circuit court held a hearing, and in the
subsequent order, the circuit court found that probable cause existed to remove the children
from the custody of their mother, Charity Sessums. Sessums’s parental rights were also
terminated and are not part of this appeal. At the hearing, the circuit court recognized that
Earls is a putative father, that his whereabouts are unknown, that he had not been served, and
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that he was not present for the hearing. On August 19, 2014, the circuit court ordered DHS
to develop a case plan and make diligent efforts to discover Earls’s location, and Earls was
ordered to establish paternity. In its order, the circuit court also adjudicated the children
dependent-neglected and ordered DHS to provide standard welfare services and develop an
appropriate case plan.
On January 12, 2015, DHS filed an amended petition for dependency-neglect. Earls’s
address was listed in the amended petition, and “abandonment” was added to the grounds
supporting DHS’s assertion of dependency-neglect. On January 13, 2015, DHS filed a
second amended petition and explained that DHS had concerns about service of process and
was seeking a new adjudication on the parents. On the same date, DHS filed a motion on
Earls’s behalf requesting that the circuit court order a DNA test to establish Earls’s paternity.
On January 15, 2015, the circuit court granted the motion. On March 31, 2015, Earls filed
a pro se answer to the second amended petition for dependency neglect and provided several
relatives who he believed would be placement options for the children.
On April 23, 2015, the circuit court entered an adjudication-and-review order finding
that the children were dependent-neglected due to the presence of controlled substances in
their systems at birth. The circuit court also held that Earls was incarcerated and had been
served on January 27, 2015, via service on the warden and that DHS had made reasonable
efforts to provide services. The putative fathers were ordered to establish paternity.1 On
1
Kevin Myers, Bobby Lindsey, and Jacob Earls are all listed on the pleadings as
putative fathers.
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May 1, 2015, the DNA test results were filed with the court, and they showed that Earls’s
probability of paternity was 99.99 percent. On August 28, 2015, the circuit court entered a
permanency-planning order. In the order, the circuit court found that Earls had not
established significant contacts with the children and his parental rights had not attached. The
circuit court found that Earls was incarcerated and that his projected release date was
September 7, 2015. Earls did not appeal the permanency-planning order.
On January 8, 2016, the Department filed a petition for termination. In its petition
it cited two statutory grounds: (1) Arkansas Code Annotated section 9-27-
341(b)(3)(B)(i)(b)(Repl. 2015) that the children had lived out of the home of the
noncustodial parent for twelve months, and despite meaningful efforts by the Department
to rehabilitate Earls and correct the conditions that prevented placement with Earls, the
conditions had not been remedied by him; and (2) Arkansas Code Annotated section 9-27-
341(b)(3)(B)(ii)(a) that the children had lived outside the parents’ home for twelve months,
and that Earls had failed to provide financial support or maintain meaningful contact with the
children. On February 25, 2016, the circuit court issued a “Termination of Parental Rights
Warning Order” and listed Kevin Myers and Jacob Earls each as “Legal/Putative Father.”
On March 30, 2016, the circuit court held a termination hearing. Earls and Bobby
Lindsey were both listed on the petition as the “legal father.” Earls appeared and was
represented by counsel. Marsha Bobo, the family service worker assigned to the case,
testified that she had had no contact with Earls because he was incarcerated. She also testified
that no services had been provided to Earls because his incarceration prevented DHS from
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providing him services. Bobo further testified that the Arkansas Department of Correction
offered some of the same services that DHS provided, such as parenting classes and
counseling, but she did not know if DHS had contacted Earls regarding the services offered
at the Cummins Unit, and she confirmed that his case file did not mention any discussion of
services. Bobo further testified that she was unaware of Earls’s contacting DHS or of any
requests for visitation with the children. Bobo testified that Earls could have contacted DHS
and she would have been made aware of it. Bobo testified that she was made aware at the
hearing that Earls was the biological father but had never had any meaningful contact with
the twins.
Finally, Earls testified that he would like the twins to be placed in his custody when
he is released from prison. He testified that he thought he would be released in two to three
months, but his sentence that was issued on December 22, 2014, was for 5 years. Earls
testified that he received a letter dated September 17, 2014, notifying him that the children
were in DHS custody and inviting him to a “family centered meeting.” Earls testified that
when he arrived at the scheduled time of 3:00 p.m. he discovered that the meeting had
already taken place at 8:00 a.m. that morning. Earls testified that he was served with a case
plan, but that there were requirements in it he could not meet, such as watching the video
“The Clock is Ticking” and going to counseling in Paragould. Earls further testified that he
had contacted DHS during the case and had requested a DNA test by filing a motion with
the court. Earls testified that he had written letters to legal counsel for DHS and the Office
of Child Support Enforcement. He also testified that he had taken three classes since he had
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been incarcerated but that the parenting classes were “backlogged” and he could not get a
place in them.
At the close of the hearing, Earls moved to dismiss and argued that DHS had not
made any efforts to provide him services because he was incarcerated and also found that he
failed to maintain meaningful contact with the children. Earls also argued that Arkansas Code
Annotated section 9-27-341(b)(3)(B)(ii)(a) could not be cited as grounds to support
termination, because he was indigent and incarcerated and therefore unable to support his
children financially. Earls argued that DHS’s allegation that Earls failed to maintain
meaningful contact with his children was incorrect because he had attempted to contact
DHS regarding his children several times. Further, the attorney ad litem asserted that
although DHS had not made efforts regarding Earls, it was not DHS’s fault that the condition
of his incarceration had not been remedied. The circuit court denied Earls’s motion to
dismiss and terminated his parental rights. On May 26, 2016, the circuit court entered the
order terminating Earls’s parental rights.
From the termination order, Earls timely appealed to the court of appeals, which
affirmed the circuit court. Earls v. Ark. Dep’t of Human Servs., 2017 Ark. App. 53.,
___S.W.3d ___. On March 9, 2017, we granted Earls’s petition for review, and we review
the case as if it were originally filed in this court. On appeal, Earls asserts that the circuit
court erred in finding that the statutory grounds for termination of his parental rights had
been met under Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(b) and (b)(3)(B)(ii)(a).
Standard of Review
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Termination of parental rights is an extreme remedy and in derogation of the natural
rights of the parents. Crawford v. Ark. Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310
(1997). In cases involving the termination of parental rights, there is a heavy burden placed
upon the party seeking to terminate the relationship. See Bush v. Dietz, 284 Ark. 191, 680
S.W.2d 704 (1984). Termination of parental rights is a two-step process that requires the
circuit court to find that the parent is unfit and that termination is in the best interest of the
child. L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489. The first step
requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. §
9-27-341(b)(3)(B). The second step requires consideration of whether the termination of
parental rights is in the juvenile’s best interest. Ark. Code Ann. § 9-27–-341(b)(3)(A).
Further, we review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t
of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination of parental
rights must be proved by clear and convincing evidence. M.T. v. Ark. Dep’t of Human Servs.,
58 Ark. App. 302, 952 S.W.2d 177 (1997). The question on appeal is whether the circuit
court’s finding that a disputed fact was proved by clear and convincing evidence is clearly
erroneous, giving due regard to the opportunity of the trial court to 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. Dinkins, supra. 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. Baker v. Ark. Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000).
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II. Points on Appeal
With these standards in mind, we turn to the circuit court’s order that Earls challenges
on appeal:
As to Jacob Earls. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) That a juvenile
has been adjudicated by the court to be dependent-neglected and has continued out
of the home of the non-custodial parent for twelve (12) months, and despite a
meaningful effort by the department to rehabilitate the parent and correct the
conditions that prevented the child from safely being placed in the parent’s home, the
conditions have not been remedied by the parent.
As to Jacob Earls. Ark. Code Ann. § 9-27–341(b)(3)(B)(ii)(a) The juveniles
have lived outside the home of the parent for a period of time of twelve (12) months,
and the parent has willfully failed to provide significant material support in accordance
with the parent’s means or to maintain meaningful contact with the juveniles.
In reviewing the circuit court’s order, the relevant statutes are as follows. First, Ark.
Code Ann. § 9-27-102 “Best Interest of the Child” provides
The General Assembly recognizes that children are defenseless and that there
is no greater moral obligation upon the General Assembly than to provide for the
protection of our children and that our child welfare system needs to be strengthened
by establishing a clear policy of the state that the best interests of the children must be
paramount and shall have precedence at every stage of juvenile court proceedings.
The best interest of the child shall be the standard for juvenile court determinations
as to whether a child should be reunited with his or her family or removed from or
remain in a home wherein the child has been abused or neglected.
Second, Ark. Code Ann. § 9-27-302 “Construction,” provides in pertinent part:
This subchapter shall be liberally construed to the end that its purposes may be
carried out:
(1) To assure that all juveniles brought to the attention of the courts receive
the guidance, care, and control, preferably in each juvenile’s own home when the
juvenile’s health and safety are not at risk, that will best serve the emotional, mental,
and physical welfare of the juvenile and the best interest of the state; . . .
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(4) To provide means through which the provisions of this subchapter are
executed and enforced and in which the parties are assured a fair hearing and their
constitutional and other legal rights recognized and enforced.
Third, Ark. Code Ann. § 9-27-303(40) defines “parent” as
a biological mother, an adoptive parent, or a man to whom the biological
mother was married at the time of conception or birth or who has signed an
acknowledgment of paternity pursuant to § 9-10-120 or who has been found
by a court of competent jurisdiction to be the biological father of the
juvenile[.]
Finally, with regard to establishing grounds for termination of parental rights, Ark.
Code Ann. § 9-27-341 “Termination of Parental Rights,” requires that only one ground
must be met to terminate parental rights. See Wade v. Ark. Dep’t of Human Servs., 337 Ark.
353, 359, 990 S.W.2d 509, 513 (1999). Here, the circuit court held that two grounds had
been met, Ark. Code Ann.§ § 9-27-341 (b)(3)(B)(i)(b) and § 9-27-341(b)(3)(B)(ii)(a) which
state:
(3) An order forever terminating parental rights shall be based upon a finding
by clear and convincing evidence:
(B) Of one (1) or more of the following grounds:
....
(i)(b) That a juvenile has been adjudicated by the court to be
dependent-neglected and has continued out of the home of the noncustodial
parent for twelve (12) months and, despite a meaningful effort by the
department to rehabilitate the parent and correct the conditions that prevented
the child from safely being placed in the parent’s home, the conditions have
not been remedied by the parent.
....
(ii)(a)The juvenile has lived outside the home of the parent for a period
of twelve (12) months, and the parent has willfully failed to provide significant
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material support in accordance with the parent’s means or to maintain
meaningful contact with the juvenile.
With these statutes in mind, we turn to the order in Earls’s case. Earls does not object
to the best-interest finding. Instead, he contends that the circuit court erred in its finding
that he was an unfit parent based on two statutory grounds.
III. “Parent”
First, Earls asserts that the circuit court erred in both findings because the statute
requires that the juvenile have lived out of the custody of the “parent” or non-custodial
“parent” for twelve months. Earls contends that at the time of the termination hearing, Earls
had not been found to be the “parent.” DHS responds that Earls did not preserve the
argument to now bring on appeal. We disagree. In a civil bench trial, a party who does not
challenge the sufficiency of the evidence at trial does not waive the right to do so on appeal.
Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 53, at 8, 431 S.W.3d 303, 307; Bohannon v.
Robinson, 2014 Ark. 458, at 5, 447 S.W.3d 585, 588. Here, Earls challenged the statutory
grounds for termination, which necessarily include the requirement that he is a “parent.”
Accordingly, we hold that Earls did properly preserve the issue for appeal.
With regard to the merits of Earls’s argument that he had not established his legal
status as a “parent” to satisfy the statute, the record demonstrates that although it was
determined through a paternity test on May 1, 2015, that Earls is the father, and the test
results were admitted into evidence at the permanency-planning hearing, the circuit court
did not recognize Earls as the biological father and continued to treat him as a putative father.
In the circuit court’s August 28, 2015 permanency-planning order, the circuit court referred
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to Earls as the putative father. In its petition for termination of parental rights filed on
January 8, 2016, DHS listed Earls as Jacob Earls, putative father. Later at the March 30, 2016
termination hearing, the circuit court recognized that Earl’s legal status needed to be
addressed:
THE COURT: Let’s see, on 2/22, I started a hearing, termination of
parental rights, I continued it to today because there were no
findings regarding Mr. Earls’ legal standing. And I said he
needed an opportunity to meet his burden as a putative father or
a biological father. That’s all I’ve got. . . . .
Regarding Mr. Earls. He submitted to DNA testing.
This was after my hearing. Wait just a minute. I’ve got to go
back to my hearing. July 9th, 2015, I had a permanency
hearing. Mr. Earls appeared via telephone from the Cummins
unit.
DNA was done in March the 18th of 2015 on Mr. Earls
and the twins. That testing - - . . . and I have DHS Exhibit No.
2, DNA test results with Mr. Earls at a 99.9 percent probability
that he’s the father of the twins. Okay.
So on 8/27, we were to have a permanency planning
hearing. At that time we should [have] had Mr. Earls before the
Court attempting to meet his burden to determine where he
falls. I guess he falls legally since we’ve got that, doesn’t he?
All right. Let’s proceed. Identify your witnesses.
This exchange is verbatim from the record, and from our review there is not another
colloquy regarding Earls’s legal status. Further, the record does not contain an order
establishing Earls’s legal status, and the termination order lists Earls as the putative father.
In reviewing the statute before the us, “‘[t]he first rule in considering the meaning and
effect of a statute is to construe it just as it reads, giving the words their ordinary and usually
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accepted meaning in common language.’ Potter v. City of Tontitown, 371 Ark. 200, 209, 264
S.W.3d 473, 481 (2007). . . . The basic rule of statutory construction is to give effect to the
intent of the legislature. Dep’t of Human Servs. & Child Welfare Agency Review Bd. v. Howard,
367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006). Additionally, in construing any statute, we place
it beside other statutes relevant to the subject matter in question and ascribe meaning and
effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d
1 (1998).” Ortho-McNeil-Janssen Pharm., Inc. v. State, 2014 Ark. 124, at 10–11, 432 S.W.3d
563, 571. A plain reading of the applicable statute, Ark. Code Ann. § 9-27-303(40),
defining “parent” means that a parent can be biological, or by adoption, or by a man who
is married to a biological mother at the time of conception or by a man who has signed an
acknowledgment of paternity, or by being found by a court of competent jurisdiction to be
the biological father. In this case, although identified initially as a putative parent, the record
fails to demonstrate that Earls’s legal status as a putative parent or biological parent was
established. Although the record demonstrates that Earls was appointed counsel for the
termination hearing and was afforded rights as a parent, the record does not demonstrate that
Earls’s legal status as the biological parent was established to apply the twelve-month time
period described in the statute.2 Therefore, Earls’s rights had not attached to then be
2
Even assuming that the dissent is correct that the circuit court’s vague statement in
the March 30, 2016 termination hearing, “I have . . . DNA test results with Mr. Earls at a
99.9 percent probability that he’s the father of the twins,”established that Earls was the legal
father, the 12-month statutory requirement has not been met. See Ark. Code Ann. § 9-27-
341. Further, at the termination hearing, the circuit court explained it had continued the
hearing because the circuit court had not entered findings regarding Earls’s “legal standing.”
Immediately after stating that the DNA results demonstrated Earls was the father, the circuit
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terminated. Further, we note that this interpretation supports the goal of our juvenile system
provided in Ark. Code Ann. § 9-27-302, which shall be liberally construed, and provides
that the purposes to be carried out are to assure that all juveniles brought to the attention of
the courts receive the guidance, care, and control, preferably in each juvenile’s own home
. . . and to provide a means through which the provisions of this subchapter are executed
and enforced and in which the parties are assured a fair hearing and their constitutional and
other legal rights recognized and enforced.
Therefore, the circuit court erred in terminating Earls’s parental rights. Accordingly,
we reverse and remand this matter to the circuit court.
Reversed and remanded; court of appeals’ opinion vacated.
WOOD, J., dissents.
RHONDA K. WOOD, Justice, dissenting. The majority reverses the order
terminating Jacob Earls’s parental rights on the basis that the record does not show that
“Earls’s legal status as a . . . biological parent was established,” and, therefore, he had no rights
to terminate. I disagree.
At the start of the termination-of-parental-rights hearing, the circuit court explained
that Earls had the opportunity to meet his burden as to whether he was a putative father or
a biological father. The court went further and referred to DHS Exhibit No. 2 and stated the
court recognized that it “should have had Mr. Earls before the court attempting to meet his
burden to determine where he falls. I guess he falls legally since we’ve got that, doesn’t he?”
The circuit court ended the colloquy regarding Earls’s legal status with a question, not a
finding.
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results depicted a 99.9 percent probability that Earls was the father. As the majority also
quoted, the court stated the following:
So, on 8/27, we were to have a permanency planning hearing. At that time we should
have had Mr. Earls before the Court attempting to meet his burden to determine
where he falls. I guess he falls legally since we’ve got that [DNA test results], doesn’t
he?
The court, perhaps not as clearly as one would like, found Earls to be the biological
and legal father at the start of the termination-of-parental-rights hearing, and Earls was
afforded the right to appointed counsel. Earls also contends the court determined he was the
legal father at the termination hearing. As the biological father, he qualifies as a “parent”
under Arkansas Code Annotated section 9-27-303(40) (Repl. 2015). Although the majority
is correct that the heading of the termination-of-parental-rights order continued to label him
as the putative father, the order itself removed the putative label and simply referred to him
as the “father.”
Earls’s argument is not one the majority makes but is instead based on statutory
interpretation. According to him, the twelve-month requirement in both grounds for
termination could not apply until twelve months from the date he was declared the biological
father. This argument fails. Earls has not preserved that argument for appeal. Even in cases
involving dependency-neglect, we have held that we will not address the merits of an
argument that is raised for the first time on appeal. E.g., Lamontagne v. Ark. Dep’t of Human
Servs., 2010 Ark. 190, 366 S.W.3d 351; Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 53, 431
S.W.3d 303. Because Earls raises an issue of statutory interpretation—not one of sufficiency
of the evidence—he was required to make the argument below. See Sullivan v. State, 2012
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Ark. 74, at 30, 386 S.W.3d 507, 525 (“This court cannot and will not decide this issue of
statutory interpretation for the first time on appeal.”). The majority has reversed the circuit
court for a reason the parties do not argue and ignores the well-settled principle against
“reversing a circuit court for reasons not addressed by that court.” Roberts v. Roberts, 2009
Ark. 567, at 8, 349 S.W.3d 886, 891.
I would hold the circuit court correctly found that the Department proved two
statutory grounds for termination and affirm.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
Andrew Firth, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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