Jose Chacon v. Arkansas Department of Human Services and Minor Children

2020 Ark. App. 277, 600 S.W.3d 131

• Court: Court of Appeals of Arkansas
• Decided: April 29, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 277 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-06 14:27:42 Foxit PhantomPDF Version: DIVISION I 9.7.5 No. CV-19-978

Opinion Delivered April 29, 2020 JOSE CHACON APPELLANT APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, V. FORT SMITH DISTRICT [NO. 66FJV-16-544]

ARKANSAS DEPARTMENT OF HUMAN HONORABLE LEIGH ZUERKER, SERVICES AND MINOR CHILDREN JUDGE APPELLEES AFFIRMED

LARRY D. VAUGHT, Judge

Jose Chacon appeals the Sebastian County Circuit Court order terminating his parental

rights to his son JT. Chacon’s sole argument on appeal is that he is an incarcerated parent whom

the Arkansas Department of Human Services (DHS) “completely ignored” in this dependency-

neglect case, and as a result, he was denied his constitutional due-process rights. While we are

troubled by the facts of Chacon’s case, we cannot reach the merits of his due-process argument

because it is not preserved for appeal; therefore, we must affirm.

Danielle Terhune is the mother of SM (born December 3, 2010), TM (born June 14, 2013),

and JT (born August 1, 2016). DHS became involved with Terhune’s family at JT’s birth when

Terhune tested positive for THC. DHS conducted a team decision meeting with Terhune on

August 4 and opened a protective-services case on the family on August 31. These actions were

unsuccessful, and on November 30, Terhune was arrested for possession of methamphetamine

and possession of drug paraphernalia. On December 1, DHS removed SM, TM, and JT from Terhune’s custody. At the time of removal, Charles Moody was the alleged putative father of SM

and was incarcerated, Cesar Valencia was the alleged putative father of TM and was incarcerated,

and Chacon was the alleged putative father of JT. Chacon was not living with Terhune at the time

of the children’s removal.

DHS filed a petition for emergency custody and dependency-neglect on December 5.

Regarding Chacon, the petition states that he is JT’s putative father, that Chacon was recently

paroled from the Arkansas Department of Correction (ADC), and that his whereabouts were

unknown. An ex parte order, entered December 5, does not mention Chacon. Thereafter, DHS

filed a notice of custody proceeding pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C.A.

§§ 1901 et seq. (Westlaw) (ICWA),1 stating that Chacon is the putative father of JT. But neither

the subsequently filed probable-cause order nor the notice of intervention by the Cherokee Nation

mentions Chacon. Although Chacon was named in a notice to putative parents filed by DHS on

January 17, 2017 (instructing the three putative fathers on the methods of establishing paternity),

the next seven pleadings filed by DHS—the March 2017 adjudication order, the July 2017 review

order, the October 2017 review order,2 the January 2018 permanency-planning order, the May

2018 fifteen-month-review order, the June 2018 order correcting style, and the October 2018

review order—did not list Chacon as a party or even mention him.

1DHS filed this notice after Terhune alleged that SM, TM, and JT are members of, or are

eligible for membership in, the Cherokee Nation of Oklahoma on the basis of her enrollment. In its termination order, the circuit court found that the ICWA applies. Chacon’s appeal does not challenge this finding.

2The October 2017 review order required DHS to “make referrals for genetic testing for

all the putative fathers named in this case.” On December 12, 2017, a LabCorp DNA report concluded that the probability of Chacon’s being JT’s father is 99.99%. 2 On November 15, 2018, nearly a year after a Chacon’s DNA test results were released, the

circuit court entered an order that found he is JT’s father and that joined him as a defendant.

Thereafter, the January 2019 permanency-planning order listed Chacon as a party to the case;

however, it merely stated that he was incarcerated. The February and May 2019 review orders

listed Chacon as a party, but the only other reference to Chacon in these orders is that he was not

present at the review hearings. In the May 2019 review order, the court changed the goal of the

case to termination and adoption, and a termination-of-parental-rights hearing was scheduled.

DHS filed a petition for termination of parental rights on May 14. With regard to Chacon,

DHS alleged that the failure-to-remedy, the other-factors, the sentenced-to-prison-for-a-

substantial-period, and the aggravated-circumstances grounds supported termination and that

termination was in JT’s best interest. Three months later, on July 17, an order appointing counsel

for Chacon was entered along with an order directing the ADC to transport Chacon to the

termination hearing.

The first hearings Chacon attended in this case were the termination hearings held on

August 1 and August 6. Chacon testified that he was incarcerated when JT was born but was

released on parole before Terhune lost custody of her children in December 2016. He said that

he was reincarcerated in February 2017 and has remained so the duration of this case. Chacon

stated that he expects to be released within a few months and that he is eligible for parole in 2021.

Chacon said that while incarcerated, he never received any paperwork (case plans or

orders) or contacts from DHS in this case. He stated that in October 2017, he was given a DNA

test but that he never learned the results of the test and did not receive paperwork showing the

results of the test. He said that DHS did not contact his parents or his sister, who had visits with

JT when Terhune had custody and who provided diapers to Terhune for JT. Chacon testified that

3 after Terhune lost custody of JT, Chacon did not know what was going on with the case or who

to contact at DHS about JT. Chacon said he thought it was not fair for the court to terminate his

parental rights and for DHS to allege that he had not completed the services listed in the case plan

because he was never given a case plan or a chance to reunify with JT. Chacon testified that he

has seen JT one time and has had three to five phone calls with him.

DHS caseworker Bailey Murray was assigned to this case on October 1, 2018. She testified

that she is the fifth caseworker assigned to the case and that her focus was reunifying the children

with Terhune. She said that the initial case plan was prepared on January 17, 2017, and she

assumed the prior caseworkers had sent it to Chacon, although she admitted she had no proof

that he received it. She testified that she did not send Chacon the DNA results or any other

paperwork including revised case plans, notices, or court orders. She said that she did not know

why the May 2018 case plan did not include Chacon despite the DNA test results confirming he

is JT’s father. She said she did not contact Chacon or his family. She stated that she did not inquire

about Chacon’s family members for relative placement, although she conceded it was her duty to

do so. And she stated that she did not know that Terhune was taking JT to visit Chacon’s parents

and sister or that JT had half siblings. Murray nonetheless testified that Chacon was not an

appropriate placement because he is incarcerated, there is no bond between JT and Chacon, and

JT is adoptable.

Renee Gann, the Cherokee Nation representative, testified that she first learned in 2019

that Chacon was incarcerated, that she did not make an independent search for Chacon in prison,

and that she typically relies on DHS to do that. She stated that DHS has made active efforts to

reunify Chacon with JT; however, she agreed that DHS’s failure to send him the case plan was

not an active effort. Gann also testified that Chacon’s parents should have been considered for

4 relative placement. Gann nevertheless recommended termination of Chacon’s parental rights

because he had a duty to reach out to DHS to learn what to do and did not do so, he failed to

complete any prison programs, he was still in prison, and if he was released he would still have to

secure stable housing and employment.

Litzy Chacon, Chacon’s sister, testified that she and her parents had visited with JT before

DHS removed him from Terhune’s custody and that they would like placement of him. She stated

that she and her parents have a close relationship with Chacon’s other two children (JT’s half

siblings) who live with their mother.

In closing arguments, Chacon’s attorney argued:

[Chacon] has been incarcerated this whole time not knowing that he was in fact determined by this Court to be the legal father of [JT], and he’s received nothing as far as a case plan or other court orders that the case worker has testified to here today. . . .[T]he evidence and testimony before the court [have] just been a complete injustice as to [Chacon’s] constitutional due[-]process rights for this court to go forward on the petition and grant the termination. . . . It’s a miscarriage of justice that the Cherokee Nation representative and any of the DHS case workers never sent Mr. Chacon anything on this case. . . . [He] had no actual knowledge of what was going on in these proceedings. . . . So in addition to what I believe are multiple examples of depravation of his basic due[- ]process rights to terminate his parental rights of [JT] . . . it’s clear that [DHS] had no intention of really doing anything more than naming Mr. Chacon in pleadings in their attempt to follow this Court’s order that DNA testing be done. . . . [T]he infringements on his constitutional due[-]process rights cannot be overlooked or outweighed and I would argue that that is paramount to severing parent’s rights in these cases .

The circuit court took the case under advisement. Thereafter, the court held another hearing to

issue its oral findings. It found that DHS had met its burden of proving the ground that Chacon

has been sentenced to prison for a substantial portion of JT’s life, Arkansas Code Annotated

section 9-27-341(b)(3)(B)(viii) (Supp. 2019), on the basis of the sentencing orders entered against

Chacon and the pattern of behavior demonstrated in the sentencing orders, the evidence that

Chacon had been incarcerated for more than two years, and the evidence that Chacon had seen

5 JT only once and did not know his date of birth. The court further found that termination was in

JT’s best interest. The court did not address or rule on Chacon’s due-process argument.

In response to the court’s oral ruling, Chacon stated, “[Y]ou all just want to take my son

away from me and I didn’t get no paperwork,” and “[T]hese folks are trying to take my son and

they haven’t even [given] me a chance to be up there for them.” Despite his protest, no request

for a ruling on the constitutional argument was made, and no ruling was issued on that argument.

The circuit court subsequently entered an order on October 10 terminating Chacon’s parental

rights to JT.3 The order is silent on Chacon’s due-process argument. This appealed followed.

We review termination-of-parental-rights cases de novo but will not reverse the circuit

court’s ruling unless its findings are clearly erroneous. Sills v. Ark. Dep’t of Human Servs., 2018 Ark.

App. 9, at 7, 538 S.W.3d 249, 254. A finding is clearly erroneous when, although there is evidence

to support it, the reviewing court on the entire evidence is left with a definite and firm conviction

that a mistake has been made. Id., 538 S.W.3d at 254. In determining whether a finding is clearly

erroneous, we have noted that in matters involving the welfare of young children, we will give

great weight to the circuit court’s personal observations. Id., 538 S.W.3d at 254.

The termination of parental rights is an extreme remedy and in derogation of the natural

rights of the parents. Id., 538 S.W.3d at 254. As a result, there is a heavy burden placed on the

party seeking to terminate the relationship. Id., 538 S.W.3d at 254. The termination of parental

rights is a two-step process that requires the circuit court to find that the parent is unfit and that

termination is in the best interest of the child. Id., 538 S.W.3d at 254. The first step requires proof

3The order also terminated the parental rights of Terhune to all three children, the parental

rights of Moody to SM, and the parental rights of Valencia to TM. Terhune, Moody, and Valencia are not parties to this appeal.

6 of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The

second step requires consideration of whether the termination of parental rights is in the child’s

best interest. Ark. Code Ann. § 9-27-341(b)(3)(A).

Chacon does not challenge the circuit court’s grounds or best-interest findings. Rather, he

argues that it was erroneous for the circuit court to proceed with the termination petition because

he is an incarcerated parent who was “completely ignored” by DHS in this case. Despite knowing

his whereabouts and that he was JT’s father in November 2017, he was not made a party until a

year later. DHS never sent him any paperwork in this case, including the DNA results, case plans,

court notices, or orders. He argues that he was not given the opportunity to attend any hearings

in this case except the termination hearings. As a result, Chacon contends that DHS failed to

permit him to have any meaningful participation in the case, thereby depriving him of his

constitutional due-process rights.

The procedural history outlined above raises obvious questions about DHS’s effort—or

lack thereof—to notify Chacon of the proceedings and to reunify him with JT. Nonetheless, we

are unable to reach the merits of Chacon’s due-process argument because he failed to obtain a

ruling on it by the circuit court.

It is well settled that to preserve arguments for appeal, even constitutional ones, the

appellant must obtain a ruling below. City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105,

123, 60 S.W.3d 443, 454 (2001) (citing Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d

496 (2001); Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998)); see also Ark. Wildlife Fed’n v. Ark.

Soil & Water Conservation Comm’n, 366 Ark. 50, 61, 233 S.W.3d 615, 622 (2006); Carson v. Cty. of

Drew, 354 Ark. 621, 629–30, 128 S.W.3d 423, 429 (2003); Doe v. Baum, 348 Ark. 259, 277, 72

7 S.W.3d 476, 486 (2002). Because Chacon did not obtain a ruling on his due-process argument, it

is not preserved for appeal. Accordingly, we must affirm.

Affirmed.

HARRISON, J., agrees.

VIRDEN, J., concurs.

BART F. VIRDEN, Judge, concurring. For the reasons set forth in my concurrence in

Fox v. Arkansas Department of Human Services, 2020 Ark. App. 13, 592 S.W.3d 260, I also concur in

the instant case and hope the legislature sees fit in the future to address the issue.

Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Office of Chief Counsel, for appellee.

Kimberly Boling Bibb, attorney ad litem for minor children.