Conway v. Arkansas Department of Human Services

2015 Ark. App. 30, 2015 Ark. 30, 453 S.W.3d 703, 2015 Ark. App. LEXIS 68
CourtCourt of Appeals of Arkansas
DecidedJanuary 28, 2015
DocketCV-14-517
StatusPublished
Cited by2 cases

This text of 2015 Ark. App. 30 (Conway 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
Conway v. Arkansas Department of Human Services, 2015 Ark. App. 30, 2015 Ark. 30, 453 S.W.3d 703, 2015 Ark. App. LEXIS 68 (Ark. Ct. App. 2015).

Opinion

ROBERT J. GLADWIN, Chief Judge

| lAppellant Timothy Conway appeals the order filed March 21, 2014, by which the Pulaski County Circuit Court terminated his parental rights to his daughter, T.C., born November 20, 2012. He argues that there was insufficient evidence to support the termination of parental rights. We affirm.

On November 20, 2012, Lawanna Bell— a Wrightsville prison inmate — gave birth to T.C. Appellant, who is both Ms. Bell’s husband and T.C.’s legal father, wanted to care for T.C., but he tested positive for illegal drugs. Additionally, his criminal history included convictions for (1) raping a five-year-old female relative when he was a teenager; (2) failing to register as a sex offender; (3) manufacturing and possessing a controlled substance; and (4) possession of a firearm.

|2On November 29, 2012, appellee, the Department of Human Services, (DHS) filed a petition for emergency custody of T.C. because her mother was incarcerated, her father — appellant—was a registered sex offender, and there were no other appropriate legal caretakers willing to provide care for her. The case proceeded, and T.C. was adjudicated dependent-neglected four months after the initial custody petition. The circuit court, given appellant’s criminal history, declined to place custody of T.C. with appellant, stating,

[Appellant] was not — and is still not— appropriate to take [T.C.] into his physical custody because he is a sex offender who is on parole, the conditions of which required that he is not to be around children and not to be around any women with children.

In its disposition order filed on January 16, 2013, the circuit court ordered T.C. to remain in DHS’s custody and made guardianship and reunification with Ms. Bell concurrent case goals. On May 16, 2013, the circuit court reviewed the case, ordered T.C. to remain in DHS’s custody, and made no case-goal changes.

On August 22, 2013, the circuit court again reviewed the case, after which it ordered T.C. to remain in DHS’s custody, and maintained the same concurrent case goals. But the circuit court also made a finding that appellant had threatened DHS personnel, and the circuit court questioned why no request for visitation suspension had been sought:

[Appellant] did visit [T.C.] until July 22, 2013, when, during [Ms. Bell’s] visitation, he threatened the safety of certain DHS personnel. DHS not [sic] allowed him to visit since July 23, 2013, which was his scheduled visitation date. The Court cannot understand why the DHS attorney did not file an ex parte motion to suspend visitation until at least today’s date.

|sThe circuit court suspended appellant’s visitation with T.C. until further order of the court and expressed serious concerns about appellant’s “mental health condition and his propensity for threatening behavior.”

On November 7, 2013, the circuit court conducted a permanency-planning hearing. The circuit court found in its resulting order that, since the last hearing, appellant had been incarcerated 1 and remained an inappropriate placement for T.C. because of his sex-offender status. At that time, the case goal was changed to adoption, authorizing DHS to file a petition to terminate appellant’s parental rights. The petition to terminate was filed as to both appellant and Ms. Bell on November 26, 2013. As to appellant, the petition referenced not only his sex-offender status, but also his parole violation by being in the home with the juvenile, safety concerns due to his violent behavior and threats to DHS staff, and lack of stable employment or housing.

On February 20, 2014, the circuit court heard DHS’s termination petition, and the matter was taken under advisement. On March 21, 2014, DHS’s petition was granted as to both parents, the order stating in pertinent part that appellant failed to remedy issues that arose subsequent to T.C.’s removal by DHS — citing his status as a sex offender, criminal history, threatening behavior toward DHS during this case, and continued incarceration — and also that appellant’s sentence of nine months constituted a substantial period of T.C.’s life. On April 3, 2014, appellant filed his timely notice of appeal.

|4We review termination-of-parental-rights cases de novo. Jones v. Ark. Dep’t of Human Servs., 2014 Ark. App. 717. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. Watson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 28. DHS must prove by clear and convincing evidence — that degree of proof that will produce in the finder of fact a firm conviction as to the allegation sought to be established — that it is in a child’s best interest to terminate parental rights, as well as the existence of at least one statutory ground for termination. Jones, supra. In determining the best interest of the juvenile, a circuit court must take into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Id. When the burden of proof is clear and convincing evidence, the inquiry on appeal is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous; a finding is clearly erroneous when, although there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Watson, supra. However, we give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Jones, supra.

A court may order termination of parental rights if it finds that there is an “appropriate permanency placement plan” for the child, Ark.Code Ann. § 9-27-341(b)(1)(A) (Supp. 2013), and further finds by clear and convincing evidence that termination is in the best | .^interest of the child, taking into consideration the likelihood of adoption and the potential harm to the health and welfare of the child that would be caused by returning him or her to the custody of the parent. Ark.Code Ann. § 9-27-341(b)(3)(A). 2 Finally, there must be clear and convincing evidence supporting one or more of the grounds for termination listed in section 9—27—341(b)(3)(B).

In this case, DHS alleged two grounds against appellant, both of which were included in the findings by the circuit court: (1) that appellant failed to remedy issues that arose subsequent to T.C.’s removal by DHS, and (2) that appellant’s sentence of nine months constituted a substantial period of T.C.’s life.

Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii) provides what is often referred to as the “subsequent factors” ground. It allows for termination of parental rights if it is in the best interest of the child, and

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Related

Bolden v. Ark. Dep't of Human Servs.
547 S.W.3d 129 (Court of Appeals of Arkansas, 2018)

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Bluebook (online)
2015 Ark. App. 30, 2015 Ark. 30, 453 S.W.3d 703, 2015 Ark. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conway-v-arkansas-department-of-human-services-arkctapp-2015.