Mario Rugama v. Arkansas Department of Human Services and Minor Child

2024 Ark. App. 62

• Court: Court of Appeals of Arkansas
• Decided: January 31, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 62 ARKANSAS COURT OF APPEALS DIVISION III No. CV-23-546

MARIO RUGAMA Opinion Delivered January 31, 2024

APPELLANT APPEAL FROM THE YELL COUNTY CIRCUIT COURT, V. SOUTHERN DISTRICT ARKANSAS DEPARTMENT OF [NO. 75SJV-22-9] HUMAN SERVICES AND MINOR CHILD HONORABLE TERRY SULLIVAN, APPELLEES JUDGE

AFFIRMED

CINDY GRACE THYER, Judge

Mario Rugama appeals the order of the Yell County Circuit Court terminating his

parental rights to his minor child, MC. On appeal, Rugama does not challenge the

sufficiency of the evidence supporting the circuit court’s findings regarding the statutory

grounds for termination. Instead, he argues that the court’s termination decision violated

his due-process rights and that the court erred in finding that termination was in MC’s best

interest because DHS failed to act in a way that preserved the family unit. We affirm.

I. Factual and Procedural Background

DHS filed a petition for emergency custody and dependency-neglect on March 21, 2022, alleging that MC was dependent-neglected because of his mother’s1 drug use and

because she left MC with an inappropriate caregiver while she was at the hospital giving birth

to another child. In addition, Rugama, named in the petition as MC’s putative parent, was

incarcerated at the Faulkner County jail at the time with “multiple charges” pending. The

court entered an ex parte order for emergency custody on March 22 and appointed counsel

only for MC’s mother, Kerrie Davis, because she was the person from whom custody was

removed. In the court’s probable-cause order of April 20, the court determined that Rugama

is MC’s legal parent and appointed him counsel.

Following the May 15 adjudication hearing,2 which Rugama did not attend, the court

found that MC was dependent-neglected due to parental unfitness, specifically citing Davis’s

methamphetamine use at the time of removal. In addition, the court found that

there IS a non-custodial parent who is a legal parent of the juvenile, but does not have custody. Pursuant to section 9-27-327(a)(1)(B) of the Arkansas Code, the court finds that Mario Rugama is the non-custodial parent and DID contribute to the dependency-neglect of the juvenile because he was incarcerated at the time of removal. The court further finds that Mario Rugama is not a fit parent for the purposes of custody or visitation because he is still incarcerated at this time. For these reasons, the court finds that the juvenile cannot be safely placed in the custody of Mario Rugama.[3]

1 When MC’s mother, Kerrie Davis, was drug tested at the hospital, she was positive for methamphetamine and other illegal substances. Her parental rights to MC were also terminated by the circuit court, but she is not a party to this appeal. 2 The order was not entered until July 19. 3 The court found that Rugama is “a parent for purposes of the Arkansas Juvenile Code because he has signed an acknowledgement of paternity.”

2 Both parents were ordered to comply with the case plan and attend parenting classes and

counseling.

Rugama’s absence was again noted at the August 19 review hearing. In the ensuing

review order, the court continued the goal of the case as reunification. The court found that

DHS had complied with the case plan and had made reasonable efforts to provide family

services. It further found that “the parent”––without specifying which one––was “mostly

compliant with the case plan and orders of the court.”

A permanency-planning hearing was held on December 16. Rugama did not attend.

At that time, the caseworker assigned to the case testified that Rugama had not participated

in the case plan because he was incarcerated in the Arkansas Department of Correction

(ADC) and had been incarcerated since the case was filed. Noting that Rugama had been

found to be the “real father,” the court noted that counsel would have to be appointed and

that DHS would need to serve Rugama in the ADC. The court went on to find that “the

parents” had not complied with the case plan and court orders. Specifically, the court found

that Rugama had not participated in the case and had been “incarcerated throughout the

life of the case.” The court ultimately concluded that the goal of the case should be

termination of parental rights and adoption.

DHS filed its petition for termination of parental rights on January 4, 2023. As

grounds pertaining to Rugama, DHS alleged twelve months failure to remedy as to a

noncustodial parent; failure to provide significant material support; sentencing in a criminal

proceeding for a period of time that would constitute a substantial period of the juvenile’s

3 life; and aggravated circumstances, in that there was little likelihood of successful

reunification. DHS further alleged that there were persons interested in adopting MC and

that he would be subject to potential harm if returned to Rugama’s custody because he was

“incarcerated and placement of the juvenile with him is contrary to public policy and is self-

evident.”

The termination hearing was held on April 21, 2023. This was the first hearing

Rugama attended. At the outset of the hearing, Rugama’s counsel moved for a continuance,

arguing that Rugama had been “offered zero services” and had not had any visitation with

MC. Counsel further noted that there were “still pending questions from the email that I

sent back in January about possible family member information that was sent out.” The court

denied the continuance, noting that counsel had the right to question DHS about the lack

of services for Rugama.

At the hearing, Rugama testified that he had been in the ADC since November 2021

serving a fifteen-year sentence for being in possession of methamphetamine and cocaine with

purpose to deliver.

On cross-examination, Rugama explained that he had lived with his son for several

stretches of time: from when MC was born until he was seven months old, at which time

Rugama was sentenced to four years in prison; from his release date in 2014 until 2019,

when he was again incarcerated; and from April to November 2021, when he went back to

prison. Since the case had been opened in March 2022, he had not been able to see his son

via either Zoom or other video visits. Although he said he had spoken to someone from DHS

4 when the case was opened, he testified that he had not had any contact with DHS since that

time and had been offered no services. He said that he had completed parenting classes and

had attended vocational training and stress-management classes as well. Rugama added that

he had provided his attorney and a woman at DHS with his mother’s contact information

in case she might be interested in taking MC. 4 He conceded that he had not attended any

previous hearings but claimed he had received only “maybe one or two of the motions.”

Kiley Burge, the Yell County supervisor for the Division of Children and Family

Services, testified that although DHS had had contact with Rugama during the case, she had

not personally had contact with him. Burge said that she sent Rugama the case plans, but

DHS had not attempted to arrange visitation between Rugama and MC while he was either

in the Faulkner County jail or in the ADC because of his incarceration. She said there were

no barriers to adoption for MC5 and that placing MC in Rugama’s custody would expose

MC to potential harm because of Rugama’s incarceration.

Rugama’s counsel followed up with questions about the services that DHS had

provided to him. Burge said that another caseworker, McKayla Whitley, had had contact

with him at the beginning of the case, but she was not sure how many contacts had been

4 On cross-examination by the attorney ad litem, Rugama said that he had given his attorney a list of people he wanted to be considered for placement of MC, including his mother, his sisters, and his aunt and uncle. 5 During cross-examination by the ad litem, Burge added that MC was “doing great” with his foster family and had expressed that “that is where he wants to be.” She noted that the foster family had expressed it wanted to be considered for his placement.

5 made. She reiterated that no visits had been attempted because of Rugama’s incarceration,

but she conceded that she did not confirm with either ADC or the Faulkner County jail that

visitation would not be possible. She simply assumed that it would not be. Regarding services,

she said she did not believe there was anything DHS could offer him while he was

incarcerated. She acknowledged, however, that neither she nor anyone at DHS had reached

out to the ADC to see if any services could be provided to Rugama during his incarceration,

and she admitted that no one attempted to make any services available to him.

With respect to placing MC with family members, Burge recalled reaching out to

Rugama’s mother after receiving an email from Rugama’s counsel. The mother was supposed

to get Burge phone numbers of other family members, but Burge never heard back from her.

She remembered seeing some other family members’ names and phone numbers on the list

but did not recall whether she reached out to them. She also did not recall why the mother

was not being considered for placement. On cross-examination by the ad litem, however,

Burge said she remembered talking to Rugama’s mother about placement, but DHS “could

not go forth with her,” although she did not remember “what the issue was.” Burge reiterated

that Rugama’s mother told her there were some other relatives and that she would contact

Burge with those relatives’ phone numbers, but Burge never heard back from her.

McKayla Whitley, the initial caseworker, testified that she spoke with Rugama shortly

after MC had been removed, and he inquired about visitation. Whitley said she would look

into it and then spoke with someone at the Faulkner County jail, who told her they did not

allow in-person visits at that time. The jail suggested that Zoom visits might be available, but

6 the way the video room was set up, there could be several people in the room who it might

not be “appropriate for a child to be having a Zoom visit” around. She said she also talked

to the county jail about services; she was informed there were “no services that we could put

in place there at the county jail.”

The circuit court heard closing arguments from counsel, then announced that it was

terminating Rugama’s parental rights. In its subsequent written order entered on May 15,

2023, the court found that Rugama, having been incarcerated throughout the life of the

case, had not participated in the case plan. More specifically, as to grounds, the court found

that Rugama had abandoned MC, had been sentenced in a criminal proceeding for a period

of time that would constitute a substantial period of MC’s life, and had subjected MC to

aggravated circumstances. Rugama timely appealed.

II. Standard of Review

In order to terminate parental rights, a circuit court must find by clear and convincing

evidence 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)(A)(i) & (ii) (Supp. 2023).

The order terminating parental rights must also be based on a showing by clear and

convincing evidence of one or more of the grounds for termination listed in section 9-27-

341(b)(3)(B). Drake v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 429, 675 S.W.3d 487. Clear

7 and convincing evidence is the degree of proof that will produce in the fact-finder a firm

conviction of the allegation sought to be established. Id. On review, this court gives due

deference to the opportunity of the circuit court to assess witness credibility and will not

reverse termination unless the lower court’s decision is clearly erroneous. Posey v. Ark. Dep’t

Hum. Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). 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. Chastain v. Ark. Dep’t of

Hum. Servs., 2019 Ark. App. 503, 588 S.W.3d 419. In determining whether a finding is

clearly erroneous, an appellate court gives due deference to the opportunity of the circuit

court to judge the credibility of witnesses. Id.

III. Analysis

A. Due Process

On appeal, Rugama does not challenge the circuit court’s determination that DHS

presented sufficient proof in support of the statutory grounds for termination, nor does he

argue that there was insufficient evidence regarding either statutory prong––adoptability and

potential harm––of the court’s best-interest finding. These issues are therefore waived, and

this court must affirm those findings. See, e.g., Benedict v. Ark. Dep’t of Hum. Servs., 96 Ark.

395, 242 S.W.3d 305 (2006).

Instead, in his first argument, Rugama contends that it was erroneous for the circuit

court to terminate his parental rights under the particular facts of this case when DHS “failed

to (1) communicate with [him]; (2) ensure the provision of the case plan, pleadings, and

8 orders; and (3) secure his attendance or participation in any of the hearings prior to the

termination hearing.” In other words, Rugama asserts that he was deprived of his parental

rights “in the complete absence of due process.”

Specifically, Rugama complains that the court erred in finding that he contributed to

MC’s dependency-neglect because of his absence due to his incarceration, when the removal

was occasioned by the mother’s drug use. He also contends that although the court found

that he was not in compliance with the case plan, there was no evidence that he was ever

provided with a copy of the case plan. He asserts that although he was named as a party, he

was never treated as a party, and DHS failed to offer him services, communicate with him,

or explain what was expected of him as far as compliance with the case plan and court orders.

This “complete lack of due process so poisoned the ultimate termination decision that any

resulting prejudice cannot be written off as harmless error,” he claims.

We acknowledge the concerns raised by Rugama’s point on appeal, and we agree that

the procedural history outlined above raises serious questions about DHS’s efforts––or lack

thereof––to notify Rugama of the proceedings, to ensure his participation in court

proceedings, to provide the services that DHS is obligated to offer, and to reunify him with

MC. Nonetheless, we are unable to reach the merits of Rugama’s due-process arguments

because he failed to raise them below. See Chacon v. Ark. Dep’t of Hum Servs., 2020 Ark. App.

277, 600 S.W.3d 131 (acknowledging DHS’s failure to provide notice or services to an

incarcerated father but holding that father’s due-process argument could not be addressed

because he failed to obtain a ruling on it below).

9 Although Rugama complained during his closing arguments that DHS had made no

efforts to provide him services or otherwise communicate with him, these arguments were

made in the context of challenging the statutory grounds for termination. Rugama never

asserted that his due-process rights were violated by the proceedings below or the circuit

court’s ruling. We have repeatedly held that that we will not consider issues raised for the

first time on appeal, even constitutional ones. Lawrence v. Ark. Dep’t of Hum. Servs., 2018 Ark.

App. 223, 548 S.W.3d 192; Kohlman v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 164, 544

S.W.3d 595; Maxwell v. Ark. Dep’t of Hum. Servs., 90 Ark. App. 223, 205 S.W.3d 801 (2005).

Because no specific due-process argument was raised below, this point is not preserved for

our review. See Willis v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 559, 538 S.W.3d 842.

B. Best Interest

In his second point on appeal, Rugama argues that DHS failed to prove that

termination was in MC’s best interest. As noted above, he does not challenge the court’s

adoptability or potential-harm findings; therefore, we must affirm those findings. See

Benedict, supra. Instead, he argues that there are other factors, including the effect that

termination has on family relationships, that can go into a court’s best-interest

determination. Because DHS and the circuit court “completely ignored” him, they also

“ignored potential relatives and the best interest of his child cannot be said to have been

fully considered without any consideration of the impact the termination decision would

have on relative relationships.”

10 Our review of the record reveals that the circuit court was presented with testimony

that DHS reached out to relatives on both sides. The law is clear that the circuit court is

charged with making determinations regarding the credibility of witnesses, and we defer to

the circuit court’s determinations on appeal. See, e.g., Thornton v. Ark. Dep’t of Hum. Servs.,

2024 Ark. App. 13; Manning v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 565, at 14, ___

S.W.3d ___, ___ (“In determining whether a finding is clearly erroneous, an appellate court

gives due deference to the opportunity of the circuit court to judge the credibility of

witnesses.”). In addition, the court added that if there were relatives on Rugama’s side who

wished to come forward, it would “certainly take that into account in the future . . . before

we do any permanent––permanency or adoption, or anything.” Accordingly, we are unable

to agree that the circuit court “completely ignored” Rugama’s extended family.

Affirmed.

GRUBER and BROWN, JJ., agree.

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

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.