Brown v. Ark. Dep't of Human Servs.

2016 Ark. App. 455

• Court: Court of Appeals of Arkansas
• Decided: October 5, 2016
• Docket: CV-16-532
• Status: Published

Opinion

Cite as 2016 Ark. App. 455

ARKANSAS COURT OF APPEALS DIVISION I No.CV-16-532

Opinion Delivered: October 5, 2016 BRIAN BROWN

APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. JV2015-279-3]

ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE THOMAS E. SMITH, JUDGE APPELLEES AFFIRMED

RAYMOND R. ABRAMSON, Judge

Brian Brown appeals from the Benton County Circuit Court order terminating his

parental rights to his four children, C.B., C.B.2., B.B., and R.B. 1 On appeal, Brown argues

that the circuit court erred in denying his motion to continue the termination hearing. We

affirm.

On May 12, 2015, the Arkansas Department of Human Services (“DHS”) exercised

an emergency hold over C.B., C.B.2., B.B., and R.B. after Brown had left the children

with a friend and did not return for them. Brown’s mother had evicted him and the children

because Brown, who was addicted to methamphetamine, had severely damaged her house.

1 The court also terminated the parental rights of the children’s mother, Tanya Elders. However, she is not a party to this appeal. Cite as 2016 Ark. App. 455

The court entered an ex parte order for emergency custody and subsequently found

probable cause to maintain the children in DHS custody.

On June 16, 2015, the court adjudicated the children dependent-neglected. In the

order, the court noted that DHS had been involved with the family since 2005 and had

offered them housing referrals, food-pantry referrals, and assistance with reapplying for food

stamps. The court ordered Brown to comply with the case plan, submit to random drug

screens, attend and complete parenting classes, obtain and maintain stable housing and

employment, and submit to a drug-and-alcohol assessment and complete all of its

recommendations.

On September 8, 2015, the court entered a review order but made no findings on

Brown’s compliance. The court ordered that Brown appear at DHS every Thursday.

On October 2, 2015, DHS filed a motion to terminate reunification services.

Following a hearing on the motion, the court entered an order terminating reunification

services on November 10, 2015. The court found little likelihood that services to the family

would result in successful reunification. The court noted that Brown had attended only one

visit with the children, had not completed a drug-and-alcohol assessment, had not attended

individual counseling or parenting classes, had not submitted to random drug screens, and

had not maintained stable housing or employment. Further, as to the order to appear at the

DHS office on Thursdays, the court noted that Brown had appeared on September 10,

September 17, and September 24 but that he had failed to appear on October 1.

2 Cite as 2016 Ark. App. 455

On December 1, 2015, the court entered a permanency-planning order changing

the goal of the case from reunification to adoption. On December 21, 2015, DHS filed a

petition for termination of Brown’s parental rights.

On February 2, 2016, the court held a termination hearing. At the onset of the

hearing, Brown asked the court to continue the case for six weeks. He informed the court

that he was scheduled to begin an inpatient drug-treatment program at Decision Point the

following day. He explained that he had tried to enter the program earlier but that the

facility did not have availability until February 3. The court then asked Brown when he had

last used drugs, and he responded “four weeks.” The court also asked him whether he had

passed the drug test scheduled for that day, and he responded, “I am waiting on going to

the bathroom.” The court then denied Brown’s request for a continuance.

The court proceeded with the termination hearing, and at the conclusion of the

hearing, the court orally terminated Brown’s parental rights. The court entered a written

order on March 15, 2016. Brown timely appealed the order to this court. The sole issue on

appeal is whether the court abused its discretion in denying Brown’s motion for

continuance. Brown asserts that the court should have granted his request because he had

plans to enter the drug-treatment program the day following the termination hearing.

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. 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.

3 Cite as 2016 Ark. App. 455

Additionally, we will not reverse absent a showing of prejudice from the denial of the

motion for continuance. Id.

In this case, we hold that the circuit court did not abuse its discretion and that Brown

cannot demonstrate prejudice. Brown did not request the continuance until the beginning

of the termination hearing, which demonstrated lack of diligence sufficient to support the

denial. See Martin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 407, 465 S.W.3d 881.

Moreover, there was no prejudice because Brown’s past behavior indicated that even if the

court allowed a continuance, he was not likely to follow through with all of the steps

necessary for reunification. See id. Accordingly, the circuit court’s decision to deny Brown’s

request for a continuance was not an abuse of discretion.

Affirmed.

HARRISON and KINARD, JJ., agree.

Leah Lanford, Ark. Pub. Defender Comm’n, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.