Desare Dean v. Arkansas Department of Human Services and Minor Child

2020 Ark. App. 286, 600 S.W.3d 136

• Court: Court of Appeals of Arkansas
• Decided: May 6, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 286 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-07 11:54:55 Foxit PhantomPDF Version: DIVISION IV 9.7.5 No. CV-20-19

Opinion Delivered May 6, 2020 DESARE DEAN APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. EIGHTH DIVISION [NO. 60JV-18-7] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE WILEY A. BRANTON, CHILD JR., JUDGE APPELLEES

AFFIRMED

N. MARK KLAPPENBACH, Judge

Desare Dean appeals the Pulaski County Circuit Court order terminating her

parental rights to her son, DJ. Dean argues that termination was not in DJ’s best interest.

We affirm.

DJ was taken into custody by the Arkansas Department of Human Services (DHS)

two days after his birth in December 2017 because Dean was incarcerated in the Arkansas

Department of Correction and there was no one to care for him. DJ was subsequently

adjudicated a dependent juvenile due to Dean’s incarceration and the lack of a legal

caretaker. Dean remained incarcerated for the entirety of the case. Joe Juniel was named a

putative father and appeared at the probable-cause hearing, but he was incarcerated

beginning in February 2018. DJ was placed in two foster-care placements and had visits with Dean in prison. DHS explored the possibility of permanent custody with various

relatives and fictive kin.

A termination hearing was ultimately held in October 2019. Juniel appeared at the

hearing, and paternity-test results that established him as DJ’s father were entered into the

record. Accordingly, the court afforded him party status and noted that his parental rights

were not at issue in this hearing. Juniel testified that he had been incarcerated in Arkansas,

Tennessee, and Georgia from February 2018 through July 2019. He said that he was

currently employed and living with his grandmother, and he wanted to be considered for

placement. If he was not an option, he wanted his father to be considered. The court noted

that there was a “hold” on Juniel for pending charges in Arkansas and that he had seen DJ

only once. The court ordered DHS to offer reunification services to Juniel and to pursue a

home study on his father. The court set the next hearing for Juniel as a termination hearing

in January 2020 “[b]ecause of the time factor” but noted that termination was “not a

foregone conclusion.”

Regarding Dean, the caseworker, Lauren Hill, testified that Dean was serving a

fifteen-year sentence for multiple convictions and that her parole-eligibility date had been

pushed back to September 30, 2022, due to disciplinary actions. Hill testified that DJ, who

had been in foster care for almost two years, is highly adoptable and needed permanency.

Hill said that none of Dean’s relatives were a placement option at that time and that Juniel

needed services.

The circuit court found that four statutory grounds supported termination and that

termination of Dean’s rights was in DJ’s best interest. The court stated that there were issues

2 with the relatives who had been considered for placement and it did not see a reason to

delay termination; however, it noted that Dean’s relatives could still pursue adoptive

placement.

We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of

Human Servs., 2015 Ark. App. 131, 456 S.W.3d 383. Termination of parental rights is an

extreme remedy and in derogation of the natural rights of parents. Id. In order to terminate

parental rights, a circuit court must find by clear and convincing evidence the existence of

at least one statutory ground for termination and that termination is in the best interest of

the juvenile, taking 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. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2019).

Clear and convincing evidence is that degree of proof that will produce in the finder

of fact a firm conviction as to the allegation sought to be established. Lively, supra. 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. Id. 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. Id.

Dean argues that there was insufficient evidence that termination was in DJ’s best

interest because the less-restrictive option of placement with Juniel or his relatives was still

3 being pursued. She contends that Juniel has not been found to be unfit and that adoption

was not an available option at this time, which made termination of her rights premature.

She does not challenge the statutory grounds for termination.

As noted by Dean, in considering the disposition alternatives, the circuit court shall

give preference to the least restrictive disposition consistent with the best interest of the

child. Ark. Code Ann. § 9-27-329(d) (Supp. 2019). However, a court may terminate the

rights of one parent and not the other parent if the court finds that it is in the best interest

of the child. Ark. Code Ann. § 9-27-341(c)(2)(B). Dean relies on Lively, supra, where we

reversed the termination of a father’s parental rights to children who had a permanent, stable

home with their mother. Unlike the children in Lively, however, DJ was in foster care, not

the custody of the other parent. DJ had been in foster care for all but the first two days of

his life, and it was only a possibility that he would ever be placed with Juniel, who had been

incarcerated for most of DJ’s life. Although, as Dean argues, she had not physically harmed

DJ, she had been incarcerated for his entire life and at the time of the termination hearing

was not due to be released for three more years. A juvenile’s need for permanency and

stability overrides a parent’s request for additional time to improve circumstances, and courts

will not enforce parental rights to the detriment of the well-being of the child. White v.

Ark. Dep’t of Human Servs., 2017 Ark. App. 529, 530 S.W.3d 402. The intent of the

termination statute is to provide permanency in the child’s life in all circumstances where a

return to the parent is contrary to the juvenile’s health, safety, or welfare and cannot be

accomplished in a reasonable period of time as viewed from the child’s perspective. Id.

4 Even though adoption was not being pursued at this time, the circuit court’s finding that

termination of Dean’s rights was in DJ’s best interest was not clearly erroneous.

Affirmed.

ABRAMSON and MURPHY, JJ., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor child.