Howerton v. Arkansas Department of Human Services

2016 Ark. App. 560, 506 S.W.3d 872, 2016 Ark. App. LEXIS 593
CourtCourt of Appeals of Arkansas
DecidedNovember 16, 2016
DocketCV-16-561
StatusPublished
Cited by6 cases

This text of 2016 Ark. App. 560 (Howerton 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
Howerton v. Arkansas Department of Human Services, 2016 Ark. App. 560, 506 S.W.3d 872, 2016 Ark. App. LEXIS 593 (Ark. Ct. App. 2016).

Opinions

WAYMOND M. BROWN, Judge

11 Appellant appeals from the circuit court’s termination of his parental rights to G.E., born 9/12/14. On appeal, appellant argues that the circuit court erred in terminating his parental rights to G.E. because his rights were “nonexisting.” We reverse.

On September 26, 2014, appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of G.E. due to her birth to an incarcerated mother.1 Brandon Edgar was listed as G.E.’s putative father in the petition. The circuit court entered an order granting emergency custody on September 29, 2014. Appellant was not listed as a party in the petition or the order.

Following a hearing on September 30, 2014, the circuit court entered a probable-cause order on the same date noting that the parties had stipulated that probable cause existed [ 2at the time of removal and continued to exist. A determination of Edgar’s paternity was reserved therein for adjudication and he was listed in the order as G.E.’s “LEGAL/PUTATIVE FATHER[.]”2 Appellant still was not listed as a party.

An agreed adjudication order was entered on November 10,2014. In that order, Edgar’s status was changed to that of the putative father only, and appellant was added as G.E.’s “LEGAL FATHER[.]” DHS was ordered “to amend the pleadings to make Mr. Howerton a party to this matter.”

A review order was entered on November 25, 2014, after a hearing on the same date. It stated that appellant was incarcerated in Tucker, Arkansas. Both appellant and Edgar were ordered to comply with the case plan and the orders of the circuit court.

DHS filed a motion to terminate reunification services to appellant on December 22, 2014. It alleged therein that appellant had subjected G.E. to aggravated circumstances where an older sibling of G.E. was subjected to sexual abuse by appellant.3 It also alleged that appellant had subjected G.E. to aggravated circumstances where there was little likelihood of successful reunification with appellant, who was sentenced to 360 months’ imprisonment in the Arkansas Department of Correction (ADC) for the abuse of G.E.’s siblings, a period of time which constituted a substantial period of time from G.E.’s perspective.4 It specifically 1 (¡alleged that the fact that appellant was a legal father, and not an apparent biological father of G.E., was a basis for termination.5 The circuit court noted that Edgar had not established paternity at that point.

The circuit court entered a review-and-no-reunification-services order on April 6, 2015, following a March 12, 2015 hearing. It noted that appellant was G.E.’s legal father “by virtue of his continued marriage” to G.E.’s mother and granted DHS’s no-reunification-services motion finding that G.E. had been subjected to aggravated circumstances in that there was little likelihood of successful reunification with appellant based on his thirty-year sentence for his rape conviction.6

Following an October 19, 2015 hearing, a permanency-planning order was entered on January 19, 2015, authorizing a plan of adoption and a petition for termination of parental rights from DHS. Though appellant was referenced as the legal father, the circuit court stated therein that “[hjaving set the goal to be adoption, the Court finds that Brandon Edgar is indigent; the Court finds the putative parent has established significant contacts with the juvenile such that parental rights [hjave attached.” It stated that appellant “shall be removed as a party to this case as he testified today he is not the biological father of the child.” Appellant was denied any contact with G.E., and Edgar was granted supervised visitation.

|4DHS filed a petition for termination of parental rights on November 18, 2015, listing appellant as G.E.’s legal father and Edgar as her putative father. It alleged the following grounds for termination of appellant’s rights:

1. That G.E. had been adjudicated dependent-neglected and continued out of appellant’s custody for a period of twelve months and the conditions necessitating removal had not been remedied despite a meaningful effort of DHS on account of appellant’s conviction and sentence of thirty years’ imprisonment for rape;7
2. That G.E. had lived outside of appellant’s home for a period of twelve months and appellant had willfully failed to provide significant meaningful support or to maintain meaningful contact with G.E. on account of appellant having been imprisoned for the duration of G.E.’s life;8
3. That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placing G.E. in appellant’s custody is contrary to G.E.’s health, safety, or welfare and that, despite the offer of appropriate family services, appellant has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate his circumstances that prevent the placement of G.E. in his custody on account of his imprisonment for a sentence of thirty years;9
4. That appellant was sentenced in a criminal proceeding for a period of time that would constitute a substantial period of G.E.’s life on account of his thirty-year prison sentence;10
5. That appellant, as the presumptive legal father, was not G.E.’s biological father and her welfare could best be served by terminating appellant’s parental rights as the presumptive legal father;11 and
\fi. That appellant had subjected G.E. to aggravated circumstances where the circuit court determined on March 12, 2015, that there was little likelihood that services to appellant would result in successful reunification “due to Edward Howertons [sic] conviction for rape of an 11 year old victim and 8 year old victim. Both of which are [G.E.’s] siblings.”12, 13

The circuit court held a hearing on the petition on February 16, 2016.

At the beginning of the hearing, the following exchange ensued:

AttoRney for Mother: Your Honor, I wanted to point out one thing. I don’t know if it will make a difference in this hearing, but I found it odd, so you may too. The permanency planning order that was entered on January the 19th of 2006, paragraph 8, specifically stated and found that Mr. How-erton shall be removed as a party to this case. As he testified today, he is not the biological father of the child. So I am not understanding exactly why Mr. Howerton, at this point not being a party in this matter, would be entitled to pursue any rights whatsoever or to defend himself against termination of parental rights to which he does not have.

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Howerton v. Arkansas Department of Human Services
2016 Ark. App. 560 (Court of Appeals of Arkansas, 2016)

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Bluebook (online)
2016 Ark. App. 560, 506 S.W.3d 872, 2016 Ark. App. LEXIS 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howerton-v-arkansas-department-of-human-services-arkctapp-2016.