Blackerby v. Arkansas Department of Human Services

373 S.W.3d 375, 2009 Ark. App. 858, 2009 Ark. App. LEXIS 1011
CourtCourt of Appeals of Arkansas
DecidedDecember 16, 2009
DocketNo. CA 09-725
StatusPublished
Cited by7 cases

This text of 373 S.W.3d 375 (Blackerby v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackerby v. Arkansas Department of Human Services, 373 S.W.3d 375, 2009 Ark. App. 858, 2009 Ark. App. LEXIS 1011 (Ark. Ct. App. 2009).

Opinion

ROBERT J. GLADWIN, Judge.

| Appellant Charissa Leatherwood Blackerby appeals the order of the Benton County Circuit Court terminating her parental rights with respect to her minor children, J.B. 1 and J.B. 2. Appellant’s sole argument on appeal is that the termination of her parental rights should be reversed because service of the petition to terminate by warning order was not sufficient. We affirm.

This case began on July 5, 2008, when appellee Arkansas Department of Human Services (ADHS) exercised a seventy-two-hour hold on appellant’s minor children due to drugs in the babies’ systems and births that were ten-weeks premature. They had received no prenatal care and were suffering symptoms of withdrawal from the drugs in their systems. A probable-cause hearing was held on July 15, 2008, at which appellant was present with her | ¡.court-appointed attorney, and the circuit court found that probable cause existed and ordered that the children remain in the custody of ADHS. Appellant was granted supervised visitation and ordered to (1) enter and successfully complete inpatient drug and alcohol treatment, (2) submit to drug testing, and (8) refrain from the use or possession of illegal substances and drug paraphernalia.

An adjudication hearing was held on September 2, 2008, at which time the circuit court determined that the children were dependent-neglected based on (1) appellant’s failure to provide items necessary for their well-being, citing her addiction to illegal substances; (2) lack of suitable housing; and (3) lack of stable employment. The circuit court also found that appellant failed to take reasonable action to protect the children from neglect or parental unfitness and that she failed to provide for the essential physical, mental, or emotional needs of the children. The circuit court also found that appellant failed to provide medical care for the children and caused them both to be born with illegal substances in their bodies. The circuit court set reunification as the goal of the case. Appellant was not present for this hearing, but her court-appointed attorney was in attendance. The circuit court noted that she failed to appear before the court “despite proper notice.”

On September 30, 2008, ADHS filed a petition for the termination of appellant’s parental rights, identifying the mother as “Charissa Blackerby ... whose last known address was 1408 W. Bonnie Lane in Rogers, Arkansas,” and stated that “as of September 29, 2008, [ADHS] has confirmed that the mother no longer resides at 1408 W. Bonnie Lane ... and |sher whereabouts are completely unknown.” The petition indicated that appellant had entered inpatient-drug treatment on July 22, 2008, but voluntarily left on August 1, 2008, without completing the program, further asserted that her whereabouts had been unknown since August 1, 2008, and that “as of September 29, 2008, [appellant] has made no attempts to contact [ADHS], her attorney, or exercise visitation with the juveniles since on or before August 1, 2008.” It is undisputed that the petition was served on appellant’s court-appointed attorney.

An affidavit of service was filed by the legal secretary to the Office of Chief Counsel of ADHS. A warning order was published in the Arkansas Democrat-Gazette on October 3 and October 10, 2008. The affidavit included a statement that “after diligent search and inquiry, one and/or all of [the parents’] whereabouts remain unknown to [ADHS] ” and stated that ADHS had mailed the notices, a summons, and a copy of the petition for termination of parental rights to appellant, certified mail, restricted delivery, to the last-known address at 1408 W. Bonnie Lane. The warning order identified appellant as the mother, identified the father, and listed the children by their full names and dates of birth.

A termination hearing was held on December 2, 2008, at which time the circuit court indicated that appellant’s parental rights would be terminated with respect to the children and that they would remain in foster care pending additional decisions with regard to possible placement with their father. There was an additional hearing on February 10, 2009, to reconsider the issue of whether service of process was proper with respect to the petition to | terminate appellant’s parental rights. At that time, there was further discussion by ADHS’s attorney that ADHS had been looking for appellant under the names of Blackerby, Key, and the various names of the fathers of her seven children, but none of them was Leatherwood, which was the name appellant was apparently using at the time. Appellant attended that hearing and explained that she had been incarcerated and did not know about the December 2, 2008 hearing. She acknowledged that her driver’s license and social security card were issued under the name of Blackerby, the name she had been using throughout her dealings with ADHS. The circuit court granted ADHS’s petition to terminate parental rights pursuant to an order filed on April 7, 2009, and appellant filed a timely notice of appeal on April 21, 2009.

Standard of Review

In cases involving the termination of parental rights, there is a heavy burden placed on the party seeking to terminate the relationship. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). This is because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. 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 § 9-27-341(b)(3) (Repl.2008) 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 fact-finder 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 proved by clear and convincing evidence 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 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. Id.

The above-referenced standard of review applies when we are reviewing the sufficiency of the evidence supporting the termination of parental rights. Here, the sole issue is a challenge to the circuit court’s finding of fact that the party attempting service by publication, ADHS, made a diligent search for the missing party to be served — appellant. Such a determination will not be reversed unless it is clearly erroneous. See Smith v. Edwards, 279 Ark. 79,

Related

Bell v. Arkansas Department of Human Services
2016 Ark. App. 113 (Court of Appeals of Arkansas, 2016)
Brumley v. Arkansas Department of Human Services
2015 Ark. App. 90 (Court of Appeals of Arkansas, 2015)
Hamman v. Arkansas Department of Human Services
2014 Ark. App. 295 (Court of Appeals of Arkansas, 2014)
McElroy v. Arkansas Department of Human Services
2014 Ark. App. 117 (Court of Appeals of Arkansas, 2014)
Morrison v. Ark. Dep't of Human Servs.
2013 Ark. App. 479 (Court of Appeals of Arkansas, 2013)
Morrison v. Arkansas Department of Human Services
2013 Ark. App. 479 (Court of Appeals of Arkansas, 2013)

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Bluebook (online)
373 S.W.3d 375, 2009 Ark. App. 858, 2009 Ark. App. LEXIS 1011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackerby-v-arkansas-department-of-human-services-arkctapp-2009.