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

2019 Ark. App. 223, 575 S.W.3d 578
CourtCourt of Appeals of Arkansas
DecidedApril 17, 2019
DocketNo. CV-18-856
StatusPublished
Cited by26 cases

This text of 2019 Ark. App. 223 (Clark v. Ark. Dep't of Human Servs.) 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
Clark v. Ark. Dep't of Human Servs., 2019 Ark. App. 223, 575 S.W.3d 578 (Ark. Ct. App. 2019).

Opinion

BRANDON J. HARRISON, Judge

In August 2018, the Washington County Circuit Court terminated Misty Clark's parental rights to two of her children: J.S. and A.S. It found that the Arkansas Department of Human Services (DHS) had proved by clear and convincing evidence that the termination was in the children's best interest. In doing so, the circuit court expressly stated that the permanent-placement option that would best serve the children would be for their foster parents in Arkansas to adopt them. But wait-the children's grandparents had already completed the process of approval under the Interstate Compact on the Placement of Children (ICPC) and unequivocally expressed the desire to care for the children. And both the DHS case supervisor and the children's Court Appointed Special Advocate (CASA) volunteer had each recommended that the permanent placement be with the children's grandparents in Indiana. The circuit court, however, rejected the grandparents' request to have the children placed with them on a permanent basis. We hold that the court's stated reasons for rejecting the grandparents as a permanent placement for the children are clearly erroneous. We therefore reverse the termination order and remand for further proceedings consistent with this opinion.

I. Background

On appeal, Clark concedes that DHS proved the statutory grounds for terminating her rights. Clark is therefore deemed an unfit parent in the law's eyes.1 That legal determination is important because the children have no fit parent to take them, which in turn means the State has the final authority to determine where to place the children.

How a circuit court exercises the power given to it by the State to place children of unfit parents in permanent *580homes is far-reaching but not limitless. The State has an interest in finding a child an alternative permanent home when a parent cannot adequately provide one. Ark. Code Ann. §§ 9-27-341(c)(3), -360 (Supp. 2017). And displaced children have a concurrent interest in preserving relationships that serve their welfare and protection. Santosky v. Kramer , 455 U.S. 745, 759, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Our General Assembly recognizes this interest and has passed laws that promote the safety, permanency, and well-being of children in foster care. See, e.g. , Ark. Code Ann. § 9-28-1003 (Supp. 2017). More to the point for this case is that the General Assembly has enacted the policy that relatives are preferred when placing children in permanent homes. See Ark. Code Ann. §§ 9-28-105, -108 (Repl. 2016). This appeal tests whether that policy has real meaning.

A. The Permanency-Planning Order

A.S. and J.S. were eleven and twelve years old, respectively, when the termination hearing was convened. Seven-year-old sibling K.C. had lived with J.S. and A.S. in a family unit before the three siblings were removed from their mother's custody. After the removal, the court placed K.C. with his father, Brian Clark. J.S. and A.S. remained in foster care for the duration of the case. The foster parents had an agreement with Brian Clark to babysit K.C., so the siblings saw each other frequently. Another sibling, A.W., lives in Texas. Before J.S. and A.S. were placed with a Northwest Arkansas foster family, the children had frequent phone conversations with A.W. All four children have a relationship with their grandparents, the Sargents, who live in Indiana. James and Bari Sargent have been married for thirty-one years. Together they have seven children. Misty Clark is James's biological daughter. Bari is Clark's stepmother.

Clark's main argument on appeal is that the circuit court erred when it concluded that terminating her parental rights was in the children's best interest. An adoption by the foster parents, she argues, severs all familial bonds; yet the circuit court could have preserved those bonds by placing permanent custody of J.S. and A.S. with the Sargents.

DHS and the children's attorney ad litem (collectively DHS) disagree. (It is an abrupt about face for DHS because it took the opposite position in the circuit court.) They first argue that Clark is procedurally barred from arguing that termination was not in the children's best interest because they had grandparents willing and able to take the children. They press this procedural point because Clark did not appeal the circuit court's permanency-planning order. DHS also argues that terminating Clark's parental rights does not prevent the grandparents from petitioning to adopt the children or bar them from receiving preferential consideration in an adoption proceeding. DHS also states that the issue of "alternative placement was irrelevant to the termination hearing." See Andrews v. Ark. Dep't of Human Servs. , 2012 Ark. App. 22, at 10, 388 S.W.3d 63, 68.

We first address the waiver point. A permanency-planning order that is a final custody order is an appealable order. But this case does not have that type of planning order, which means that pursuant to Arkansas Supreme Court Rule 6-9(a)(1)(B), Clark would have had to procure a certification pursuant to Arkansas Rule of Civil Procedure 54(b) to appeal the permanency-planning order in this case. See West v. Ark. Dep't of Human Servs. , 373 Ark. 100, 281 S.W.3d 733 (2008). The clear implication is that a permanency-planning order of the typical variety is an interlocutory order that does not have to be appealed when it issues. If it had to be appealed when issued, then there would be no need to invoke Rule 54(b). Moreover, in *581the permanency-planning order before us, the circuit court itself wrote, "The goal established in the case was reunification. The concurrent goal was custody and adoption." Consequently, there was no pressing need for Clark to appeal the interlocutory permanency-planning order because, at the time, a concrete plan (and some hope) was in place to reunite Clark with the children.

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Bluebook (online)
2019 Ark. App. 223, 575 S.W.3d 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-ark-dept-of-human-servs-arkctapp-2019.