Moesha Lawson v. Arkansas Department of Human Services and Minor Child

2023 Ark. App. 33, 659 S.W.3d 697

• Court: Court of Appeals of Arkansas
• Decided: February 1, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 33 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-22-403

MOESHA LAWSON Opinion Delivered February 1, 2023 APPELLANT APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT V. [NO. 62JV-20-20]

ARKANSAS DEPARTMENT OF HONORABLE KATHIE HESS, JUDGE HUMAN SERVICES AND MINOR CHILD APPELLEES AFFIRMED

WENDY SCHOLTENS WOOD, Judge

Moesha Lawson appeals the St. Francis County Circuit Court’s order terminating her

parental rights to her minor child (MC). She does not challenge the circuit court’s findings

that grounds support termination and that termination is in her child’s best interest. She

argues that her due-process rights were violated because the termination hearing was held

without her and because the circuit court did not inquire about her absence. She also

contends that while counsel attended the hearing on her behalf, his representation was

“perfunctory.” Because these arguments are not preserved for appeal, we affirm.

On April 8, 2020, the Arkansas Department of Human Services (DHS) filed a

petition for emergency custody and dependency-neglect after taking a seventy-two-hour hold

on MC, who was born on March 23, 2020. According to the affidavit attached to the petition, MC was born with a medical condition that required the placement of a shunt in

his brain to remove excess fluid, and he requires extensive follow-up treatment and therapy.

The affidavit further states that Lawson suffers from mental-health and developmental issues,

and hospital staff had reported specific concerns about her ability to care for MC’s basic

needs as a newborn and his special medical needs. The affidavit also states that Lawson had

another child removed from her care after she had threatened harm to the child, and Lawson

did not regain custody of the child due to her failure to follow her established case plan. In

light of these facts, DHS sought emergency custody of MC and a dependency-neglect

determination, contending that he was at risk of substantial harm due to inadequate

supervision.1

On April 15, the circuit court entered an ex parte order awarding DHS emergency

custody of MC and appointing Kimberly Eden as Lawson’s attorney. At the probable-cause

hearing, Lawson was represented by her attorney, but Lawson did not personally appear. A

DHS caseworker had attempted to provide Lawson transportation to the hearing but

discovered that Lawson had checked into a mental-health facility. The court found probable

cause for MC’s removal and for continued care by DHS. The court further ordered Lawson

to complete parenting classes, watch a video titled “The Clock is Ticking,” and complete a

psychological evaluation and follow resulting recommendations.

1 The petition also named a putative father, who was later dismissed from the case after paternity testing confirmed he is not MC’s biological father.

2 At the adjudication hearing in May, Lawson was represented by her attorney but did

not personally appear. The caseworker testified that Lawson was in another mental-health

facility. In the May 5 adjudication order, the court found that all parties had received proper

service and notice of the hearing under the applicable rules of procedure. The circuit court

adjudicated MC dependent-neglected and approved DHS’s case plan, with the goal being

reunification of the family. The court ordered that visitation be supervised and that Lawson

undergo a psychological evaluation and mental-health counseling.

Over the next year, DHS continued to provide Lawson with reunification services,

including foster care, visitation, and counseling. During that time, the circuit court held two

review hearings via videoconference (Zoom): one on July 14, and another on October 27.

Lawson was represented by counsel at both, but Lawson attended only one. In its review

orders, the court found that DHS had made reasonable efforts to provide family services

aimed at reunification, but Lawson remained unfit and should continue to be offered

services. Reunification remained the goal of the case.

On January 6, 2021, DHS moved to terminate its obligation to provide reunification

services and gave notice that a permanency-planning hearing would immediately follow the

hearing on its motion. The motion alleged that Lawson was suffering from psychiatric issues,

she had recently attempted suicide, she had not been taking advantage of scheduled

visitation with MC, and MC continued to have serious medical conditions that require

specialized care that Lawson could not manage.

3 The circuit court held a hearing on the motion to terminate services and for

permanency planning on April 27. The hearing was held on Zoom, and Lawson appeared

with her attorney. After the hearing, the court entered an order on May 18 finding by clear

and convincing evidence that reunification services should be terminated because MC had

been subjected to aggravated circumstances, i.e., there was little likelihood that services to

the family would result in successful reunification. The court further found that DHS had

offered Lawson services, including foster care, transportation, parenting classes, visitation,

and referrals for mental-health counseling; Lawson had not participated in visitation with

MC on a consistent basis and preferred that the DHS caseworker send her photos of MC;

she continued to suffer from mental-health issues and had recently attempted suicide by

overdosing on prescription sleeping pills; she was not attending court-ordered mental-health

counseling on a consistent basis; she could not tell the court what medication she was to

take; and she could not adequately care for her medically fragile child. The circuit court also

concluded that returning MC to Lawson’s custody was contrary to his best interest, and it

set adoption as the case goal.

On November 17, DHS filed a petition to terminate Lawson’s parental rights alleging

three grounds: (1) failure to remedy, Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2021);

(2) subsequent factors, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a); and (3) aggravated

circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B). The petition gave notice that

the termination hearing would be held on February 8, 2022. The record reflects that, on that

date, the termination hearing was continued, and a review hearing was held. The court’s

4 February 11 review order found that Lawson appeared at the courthouse on February 8 and

was personally served with the termination petition by the St. Francis County Sheriff. The

order further found that Lawson was asked “to remain and come into Court for her [review]

hearing,” where her attorney2 was present, “but [Lawson] left the Courthouse.”

The termination hearing was held in person on March 29; however, Lawson’s

counsel3 attended via Zoom. Lawson’s case was called in the courthouse hallway twice, but

she did not appear. The court proceeded with the hearing in her absence, without objection

by her attorney and without any independent inquiry about her absence.

At the hearing, DHS called two witnesses: DHS caseworker Nichole Hopkins and

MC’s foster parent, Hannah Phillips. Hopkins testified that MC would be in danger if he

were returned to Lawson because she had not complied with any of the mental-health

requirements of her case plan, including counseling and taking her medication as prescribed;

she had not attended parenting classes; and she did not maintain stable housing. Hopkins

further testified that MC’s medical condition had improved but that he still had medical

and therapeutic needs that she believed Lawson could not attend to even if she had been

compliant with the orders and her case plan. Phillips testified about MC’s medical and

developmental progress and his need for continued treatment. She further testified that she

and her husband were prepared to ensure that MC receive continued treatment and desired

to provide a permanent home for him.

2 Zach Morrison represented Lawson at this review hearing. 3 Grant Wise represented Lawson at the termination hearing.

5 Lawson’s counsel did not cross-examine Hopkins or Phillips and did not call any

witnesses in defense of the termination petition. In closing argument, the only thing he said

was, “[B]ecause my client does not appear today, I can’t put on a defense for her[;] however[,]

in order to preserve the issue for appeal, I will object to her parental rights being terminated.”

At the conclusion of the hearing, the circuit court orally granted the petition to

terminate Lawson’s parental rights, finding that evidence supported the failure-to-remedy

and aggravated-circumstances grounds and that termination is in MC’s best interest. The

court entered the termination order on March 31, and this appeal followed.

On appeal, Lawson argues she was deprived of fair procedure because the court

allowed the termination hearing to proceed without an explanation for her absence. She also

asserts that her attorney did not “defend” her at the hearing because he did not cross-examine

the two witnesses who testified and did not present evidence or argument on her behalf.

As Lawson concedes, her attorney failed to raise these arguments below. Generally,

the failure to make a contemporaneous objection or to obtain a ruling on one is fatal to this

court’s consideration of the issue on appeal. Holder v. Ark. Dep’t of Hum. Servs., 2016 Ark.

App. 424, at 4, 501 S.W.3d 845, 846. Lawson responds that the alleged errors at trial were

so serious and flagrant that the circuit court had a duty to intervene without a request or

contemporaneous objection from her counsel. For this proposition, Lawson relies on the

third contemporaneous-objection exception discussed in Wicks v. State, 270 Ark. 781, 606

S.W.2d 366 (1980).

6 Wicks observed that there is a “mere possibility” of an exception to the

contemporaneous-objection rule related “to the trial court’s duty to intervene, without an

objection, and correct a serious error either by an admonition to the jury or by ordering a

mistrial.” Id. at 786, 606 S.W.2d at 369. Since the decision in Wicks, however, our supreme

court has said that the third Wicks exception “is limited to only those errors affecting the

very structure of the criminal trial, such as the fundamental right to a trial by jury, the

presumption of innocence, and the State’s burden of proof.” White v. State, 2012 Ark. 221,

at 10, 408 S.W.3d 720, 726. The question of whether this exception extends to due-process

and ineffective-assistance-of-counsel arguments in a termination case has not been squarely

decided.

We are mindful that this court discussed its opinion requiring rebriefing in a no-merit

termination appeal on the basis that the appellant’s counsel in that case might have had a

nonfrivolous argument to advance concerning the applicability of the third Wicks exception

to an unpreserved Americans with Disabilities Act claim within a dependency-neglect case.

Baker v. Ark. Dep’t of Hum. Servs., 2011 Ark. App. 400, at 3. This court reasoned that the

similarities between criminal and termination proceedings might render nonfrivolous an

argument for extending Wicks to termination cases even if the appeal is ultimately

unmeritorious. Id. The appellant in that case, however, did not advance the Wicks argument

on rebriefing, so this court had no occasion to decide whether the third Wicks exception

applies in the context of termination-of-parental-rights appeals. Id.

7 Lawson points out that since Baker, application of the third Wicks exception has been

presented in at least three termination-of-parental-rights cases: Owen v. Arkansas Department

of Human Services, 2019 Ark. App. 413, 587 S.W.3d 586; Edwards v. Arkansas Department of

Human Services, 2016 Ark. App. 37, 480 S.W.3d 215; and Weathers v. Arkansas Department of

Human Services, 2014 Ark. App. 142, 433 S.W.3d 271. She contends that this court did not

apply the Wicks exception in these cases because the attorneys for the parents actively

participated in the parents’ defense. She argues that, in contrast, Wicks should apply here

because her counsel did not actively participate in her defense.

While there are no Arkansas cases directly on point, two give us guidance. In Edwards,

2016 Ark. App. 37, at 13, 480 S.W.3d at 222, this court held that the third Wicks exception

did not apply to preserve Edwards’s argument on appeal that his due-process rights were

violated when his termination-of-parental-rights hearing was held in his absence. This court

held that Edwards’s attorney fully participated in the hearing, and there was no indication

that Edwards’s due-process rights could not be safeguarded in his absence; therefore, there

was no reason for the circuit court to step in on its own motion and raise Edwards’s due-

process argument. Id.

In Vogel v. Arkansas Department of Human Services, Vogel, who was incarcerated at the

time of her termination hearing, argued on appeal that her counsel’s failure to take any steps

to seek her presence or participation at the hearing violated her due-process right to be heard.

2015 Ark. App. 671, at 7, 476 S.W.3d 825, 829. Vogel acknowledged that this argument

was not raised below but contended that the ineffective assistance of counsel was so flagrant

8 and egregious that it fell within the third exception to the preservation rule outlined in Wicks.

Id. This court disagreed and affirmed the termination order, holding that Vogel’s counsel

had presented her case effectively and that, considering the record of the termination

hearing, it was very likely that Vogel’s attendance (or previously recorded statements) would

not have influenced the outcome of the case given her troubled history and inability to care

for her child. Id. at 10–11, 476 S.W.3d at 831.

Like the parents in Edwards and Vogel, Lawson was not in attendance at the

termination hearing and argues that her due-process right to be heard was violated

sufficiently to warrant the application of the third Wicks exception. While Lawson’s attorney

attended the termination hearing, he did not put on a case or examine any witnesses. The

question is whether Lawson’s absence at the hearing coupled with her counsel’s failure to

put on a case or examine witnesses were errors so egregious and flagrant that the circuit court

should have intervened on its own motion, thereby triggering the application of the third

Wicks exception. Under the facts of this case, we hold that they are not.

The record reflects that Lawson was personally served with the petition to terminate

her parental rights, and she does not contend that she did not receive notice of her

opportunity to be heard. Her brief offers no explanation for her failure to attend the hearing,

although she does posit that no one inquired into the possibility that she may have been

unable to access or navigate Zoom due to her developmental or mental-health issues and the

cessation of reunification services. However, the termination hearing was held in person and

on Zoom, and the record reflects that, despite her mental-health and developmental issues,

9 Lawson had attended previous hearings, both in person and on Zoom, after reunification

services had been extinguished. The caseworker testified that Lawson did not contact her

about transportation to the hearing and did not appear at the DHS office on the morning

of the hearing, where she had attended previous hearings on Zoom. Further, the court had

no reason to be surprised by Lawson’s absence not only because her counsel expressed no

concern about it but also because of her history of nonattendance. Lawson failed to appear

at the probable-cause hearing and the adjudication hearing because she had checked into

mental-health facilities. She failed to appear at two review hearings. Further, she appeared at

the courthouse on the date the termination hearing was originally scheduled to be held;

however, after she was served with the termination petition and asked to remain for the

hearing, she left.

We further note that Lawson does not contest the circuit court’s findings that

termination of her parental rights is in her child’s best interest and that grounds support

termination.4 Significantly, the record contains overwhelming evidence to support these

findings. It is undisputed that Lawson suffers from serious mental and cognitive issues that

render her unable to care for herself and her child. She previously lost custody of MC’s

sibling after Lawson threatened to boil the baby. Further, MC requires ongoing, significant

medical care, and over the span of two years, Lawson made little to no effort to comply with

4 Failure to challenge the circuit court’s grounds and best-interest findings on appeal constitutes an abandonment of those issues. Isbell v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 110, at 10–11, 573 S.W.3d 19, 26.

10 the court orders and the case plan that were designed to help her achieve reunification with

him. She failed to meaningfully participate in mental-health counseling and to take her

medication as prescribed. She failed to attend parenting classes and did not engage in

consistent visitation with MC, preferring photos to visitation, and she cannot provide

stability in the home. Last, the above evidence shows that there is a risk of harm to MC if he

is returned to Lawson’s custody, and there is undisputed evidence that MC is adoptable. 5

Lawson argues that her counsel could have argued that termination was not necessary

because guardianship was available as a less restrictive option given that MC’s foster parents

had applied for guardianship. However, Phillips indicated that her and her husband’s

motivation for petitioning for guardianship sprang from concerns that MC would not receive

proper care if he were taken out of state by the putative grandparents, who were pursuing a

competing guardianship of MC at the time. As indicated earlier, the putative father was

dismissed after DNA testing.

Unquestionably, the court or counsel could have made a record concerning Lawson’s

absence at the termination hearing, and her attorney could have examined the witnesses or

argued the case. However, Lawson’s unexplained absence and her counsel’s failure to put on

a case were not indicative of flagrant and egregious errors that required the circuit court to

intervene under Wicks. On the record before us, there is no reasonable probability that

5 The adoption report introduced at the termination hearing reflects that the Phillipses were interested in adoption, and Phillips testified that she and her husband desire to give MC a permanent home.

11 Lawson’s attendance and further representation of her at the termination hearing would

have altered the outcome. Accordingly, we affirm.

Affirmed.

GRUBER and HIXSON, JJ., agree.

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

Callie Corbyn, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.