Cite as 2023 Ark. App. 546 ARKANSAS COURT OF APPEALS DIVISION II No. CV-23-256
Opinion Delivered November 29, 2023
RHONDA PARK AND JAMES PARK APPEAL FROM THE VAN BUREN APPELLANTS COUNTY CIRCUIT COURT [NO. 71JV-21-22] V. HONORABLE SUSAN WEAVER, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES AND MINOR CHILD AFFIRMED APPELLEES
CINDY GRACE THYER, Judge
This appeal arises from a Van Buren County Circuit Court’s denial of biological
relatives’ petitions for guardianship and for adoption of a minor child (MC) after parental
rights to the child were terminated. MC’s great-aunt and great-uncle, Rhonda and James
Park, challenge the court’s denial of their petitions, the court’s grant of the foster parents’
petition to adopt, and the court’s failure to recuse itself. We affirm.
To fully understand the arguments on appeal, a brief overview of the underlying
dependency-neglect proceedings is necessary.
In August 2021, the Arkansas Department of Human Services (Department) was
notified that MC’s mother had tested positive for amphetamines at MC’s birth. MC’s
mother also admitted she was homeless. As a result, the Department exercised a seventy-two- hour hold on MC due “to parental unfitness as a result of illegal drug use, Garrett’s Law,
and [her] mother’s pattern of homelessness and overall stability.”1 MC’s mother subsequently
stipulated to a finding of dependency-neglect, and the court set the goal of the case as
reunification with a fit and appropriate parent. As part of the case plan, the court ordered
the Department to provide four hours of supervised visitation each week.
A review hearing was held in January 2022, after which the court entered an order2
finding that, although MC’s mother had less than partially complied with the case plan and
court orders, the goal of the case would continue to be reunification but with a concurrent
goal of adoption. The court noted in the order that the Department had completed an
Interstate Compact on the Placement of Children (ICPC) package on the Parks, who live in
Florida. At the time of the review hearing, MC remained in provisional foster care in
Arkansas, and visitation between the parents and MC was being provided to support
reunification efforts. The Parks’ ICPC home study had been approved prior to the hearing,
but the results were not mailed to the Department until shortly thereafter.
1 At the time of removal, the Department indicated that it would contact MC’s maternal grandmother, who had guardianship over MC’s siblings, and a paternal aunt to see if either would be an appropriate relative placement option. The grandmother indicated that she could not care for an additional child and was therefore not an appropriate placement. The record is silent as to potential placement with the paternal aunt. The Parks had yet to be identified as a possible placement. As a result, MC was placed in provisional foster care. 2 The January 21, 2022 review order filed after the hearing erroneously stated that the review hearing had been held on October 6, 2021. That order was later amended on February 22, 2022, to reflect the correct hearing date.
2 On March 18, 2022, the Department filed a motion for ICPC placement of MC with
the Parks in Florida. In its motion, the Department stated that relatives are given preferential
treatment in the placement of juveniles in dependency-neglect actions and asserted that it
was in MC’s best interest that she be placed with the Parks. The Department noted that the
goal of the case was reunification with a concurrent goal of adoption; that the mother was
less than partially compliant with the case plan; and that the father was only partially
compliant. The attorney ad litem (AAL) concurred with the Department’s request to grant
an ICPC placement with the Parks.
A combined review hearing and a hearing on the motion for ICPC placement was
held on May 16, 2022. Parent counsel objected to MC’s being placed with the Parks in
Florida because, among other things, it would be difficult to provide the parents visitation if
MC were in Florida. After the hearing, the court reiterated that the goal of the case was
reunification with a fit and appropriate parent and denied the ICPC placement with the
Parks. In doing so, the court found that, while MC’s mother was only minimally compliant
with the case plan, she was attending visitation and had completed the parenting assessment.
The court also found that MC’s father was in compliance with the case plan and noted, in
part, that he was working, attending visitation, and had completed the parenting assessment.
A permanency-planning hearing was held on August 3, 2022, after which the court
found that both parents had only minimally complied with the case plan and changed the
goal of the case to guardianship with a fit and willing relative together with a concurrent goal
3 of adoption after termination of parental rights. 3 Despite the goal change, the court
continued the parents’ right to visitation with MC. The court set October 5, 2022, as the
date for the termination hearing.
On August 11, 2022, the foster parents, who had had custody of MC since her
removal, filed a motion seeking leave to intervene in the dependency-neglect case for
purposes of filing a guardianship petition. The attorney ad litem filed a response requesting
that the court deny the motion to intervene as premature given the current stage of the
dependency-neglect proceedings.
A week later, the Department filed a petition for termination of parental rights
followed by adoption and noted that the hearing on the petition was set for October 5, 2022.
The day before the termination hearing, the Parks filed a petition to be appointed the
permanent guardians of MC. They noted that their ICPC home study had been approved,
but placement had not yet been made. That same day, the Department filed a motion for
continuance of the termination hearing to allow it more time to consider MC’s permanency
options and to respond to the Parks’ petition for guardianship.
At the beginning of the termination hearing, the court asked whether the foster
parents’ motion to intervene was being considered. Counsel for the foster parents responded
that they would be seeking to adopt MC and thus needed to amend their pleading requesting
3 The order itself was not filed until the day before the termination hearing (October 4, 2022).
4 intervention. The AAL and the Department requested a hearing on the motion, and the
parties agreed that a hearing date would be set at the conclusion of the termination hearing.
The Department then requested that, prior to the commencement of the termination
hearing, it be allowed to dismiss its termination petition so that it could consider the
competing guardianship petitions. The court denied the Department’s motion to dismiss,
finding it untimely.
The case then went forward on the petition to terminate. After the hearing, the court
filed an order terminating parental rights and changing the permanency plan for MC to
adoption. The termination order set the hearing on the foster parents’ motion to intervene
and petition for adoption for November 17, 2022.
On October 12, 2022, the Parks filed a petition to adopt MC, claiming that it was in
MC’s best interest to be placed with biological relatives and that Arkansas law required that
relative placement be considered at all stages of the case. Two days later, the foster parents
filed an amended motion for leave to intervene to file an adoption petition, which the court
granted. Their adoption petition was filed of record on October 19, 2022, and their adoptive
home study was approved on November 7, 2022.
The Parks, on the other hand, did not file their motion to intervene until October
19, the same day the foster parents filed their adoption petition. The Parks sought leave to
intervene for purposes of establishing a permanent guardianship as to MC or, in the
alternative, to adopt her.
5 On November 14—three days before the scheduled hearing on the motions to
intervene and related petitions—the Parks moved to continue, citing their counsel’s conflict
with the November 17 court date. They claimed they had only recently discovered the
hearing date, that they needed to travel out of state, and that they would have to make last-
minute adjustments to their schedule to attend a hearing where their counsel would not be
available.
The court denied the continuance motion. In doing so, it noted that the Parks had
been present at the termination hearing on the day the hearing was set, as was their counsel.
The court stated that counsel was aware that a date for the intervenor-adoption hearing
would be set upon the conclusion of the termination-of-parental-rights hearing but opted to
leave before the hearing date was set. In any event, the Parks were present when the
November 17, 2022 hearing was set and thus had actual notice of the hearing date.
Moreover, the court found the Parks lacked standing to request a continuance because their
motion to intervene had not yet been granted.
On the morning of the termination hearing, the Parks moved to disqualify the circuit
judge, claiming that she had consistently disregarded Arkansas law with respect to the
relative-placement preference and that she had improperly denied the Department’s request
to dismiss the termination petition so that it could consider relative placement and
proceeded with termination. The Parks asserted the court had indicated a bias and or
prejudice against them through its various statements and comments and further pointed to
the dismissal of their continuance motion as evidence that the circuit judge should recuse
6 herself. The Parks maintained that, as a result of the foregoing, the court’s impartiality had
been called into question, thereby requiring her recusal.
The motion to disqualify was considered at the November 17 hearing. Despite having
previously claimed a conflict with the hearing date, the Parks’ counsel was present at the
hearing. After the hearing, the court granted the Parks’ motion to intervene but denied their
motion to disqualify.
The hearing on the competing petitions for adoption was held on January 18, 2023.
After the hearing, the court entered an order granting the foster family’s adoption petition
and denying the Parks’ competing petition. In doing so, the court recognized that the Parks’
ICPC had been approved and that they had reached out to the Department multiple times
during the dependency-neglect proceedings in an attempt to establish a relationship with
MC and to be involved in the case. The court noted that it had considered ICPC placement
on two separate occasions but had denied the requests after MC’s biological parents and
their attorneys had been adamant that MC not be sent to Florida to live with the Parks
because doing so would impede their reunification efforts. The court stated that both sets of
petitioners are wonderful and outstanding people but that MC’s tremendous bond with the
foster family and her lack of familial relationship or attachment with the Parks—the child
had spent only a few hours with the Parks—were the most relevant factors in its decision to
grant the foster family’s adoption petition. The court also considered the age of the parties;
the distance between the Parks’ home in Florida and the remaining biological family in
Arkansas; the foster family’s expressed interest in encouraging a relationship between MC
7 and her biological family, including visitation with her siblings and the Parks; and, although
relative placement was no longer a preference, the biological connection between the Parks
and MC. For these reasons, the court found that it was in MC’s best interest that the
adoption petition of the foster family be granted.
The Parks have appealed, challenging the court’s denial of their guardianship and
adoption petitions and the court’s failure to recuse itself.
I. Denial of Motion to Recuse
For their first point of appeal, the Parks argue that the circuit court erred in denying
their motion to disqualify or recuse. A circuit court’s order denying a motion to recuse is
reviewed under an abuse-of-discretion standard. See Shaffer v. State, 2018 Ark. App. 581, at
4, 566 S.W.3d 522, 524. “A trial judge is presumed to be impartial, and a party seeking
disqualification bears a substantial burden to prove otherwise.” Ahmad v. Horizon Pain, Inc.,
2014 Ark. App. 531, at 5, 444 S.W.3d 412, 416. “The party seeking recusal must
demonstrate bias,” which must be shown objectively or by a “communication of bias.”
Parkerson v. Brown, 2013 Ark. App. 718, at 8, 430 S.W.3d 864, 871. There is an affirmative
duty not to recuse where no conflict exists. See Worth v. Benton Cnty. Cir. Ct., 351 Ark. 149,
156, 89 S.W.3d 891, 896 (2002).
The Parks moved to disqualify the circuit judge below because she refused to place
the child in their care despite an approved ICPC home study and despite statutory authority
as to the preferential status of relative placement. They then outlined several instances in
which they believed the circuit judge revealed her bias: (1) the interaction between the court
8 and counsel for the foster parents at the termination hearing; (2) the court’s subsequent
failure to acknowledge their counsel’s presence on the record at that hearing; (3) the court’s
“redress and frustration” at the Department’s apparent desire to dismiss the termination
petition so it could pursue a potential guardianship with the Parks; (4) the court’s denial of
the motion to continue so that the Department could pursue the guardianship option; and
(5) the court’s use of the words “pissing match” to describe an exchange it had with the
Department and the AAL during the proceedings.4 They comment that this latter incident
was on the record, in open court, in a hearing in which nonparties were not excluded, and
it belied the appearance of fairness. They further note that the court even referenced the
director of the Judicial Discipline and Disability Commission (JDDC) and apologized to him
and not the participants in the room. They additionally argue that the court’s
characterization of counsel’s arguments in support of their motion for continuance as
“disingenuous” and a “misrepresentation” and its suggestion that it might hold the hearing
in their absence called into question the court’s impartiality and appearance of fairness.
As stated above, we first start with the principle that judicial impartiality is presumed,
and adverse rulings are not enough to demonstrate bias. Clowers v. Edwards, 2020 Ark. 367;
4 During cross-examination of the social worker, the AAL began to question the social worker regarding the Department’s duty to locate relatives for placement during the dependency-neglect proceedings. Parent counsel objected on relevance grounds and therein began a back and forth between the court and the AAL regarding the relevance of the relative- placement statute at a termination hearing. The court then stated, “Because I feel like, and this is probably going to be lack of a better – probably going to get in trouble for saying this, but I feel like what we’ve got going on in here is a pissing match.”
9 Taffner v. Ark. Dep’t of Hum. Servs., 2016 Ark. 231, at 14, 493 S.W.3d 319, 329. A party
seeking disqualification bears a substantial burden to overcome that presumption. Ark. Jud.
Discipline & Disability Comm’n v. Proctor, 2010 Ark. 38, 60 S.W.3d 61; Owens v. State, 354
Ark. 644, 128 S.W.3d 445 (2003). To decide whether there has been an abuse of discretion,
the appellate courts will review the record to determine if prejudice or bias was exhibited.
Owens, 354 Ark. 644, 128 S.W.3d 445.
Upon review of the record in this case, we find that the Parks have failed to overcome
that presumption. There is nothing in our record to indicate that the circuit court’s failure
to consider guardianship or its denial of the Department’s motion to continue were the
result of any bias or prejudice against the Parks; these were simply adverse decisions based
on the record before the court at the time the decisions were made. Moreover, at the time
of these decisions, the Parks were not even parties in the dependency-neglect proceedings.
Nor do the remaining allegations rise to the level of bias so as to require recusal. The
fact that the circuit judge and counsel for the foster parents engaged in a polite and friendly
exchange prior to a hearing in which the Parks’ counsel was present but not addressed by
the court does not overcome a presumption of impartiality. The hearing at issue was, in part,
a hearing on the foster parents’ motion to intervene prior to termination. Thus, collegial
interaction between the court and counsel is nothing extraordinary. And, while the Parks
had filed their petition for guardianship the day before, they had not yet filed a motion to
intervene and were not recognized parties to the action at that point. Thus, the court’s failure
to formally acknowledge the Parks’ counsel is not any clear indication of bias.
10 As for the alleged “pissing match” comments and the apology to the “JDDC,” these
also fail to demonstrate any bias. The “pissing match” reference involved a disagreement
between the court, parent counsel, and the AAL over the relevance of relative placement in
a termination hearing. After much back and forth, the court stated that the parties needed
to move on as this was just a “pissing match.” The circuit judge then jokingly apologized to
the head of the JDDC for her somewhat inappropriate language. When viewed in this
context, there does not appear to be any indication of bias, especially given the fact that the
Parks were not parties at the termination hearing.
As for the Parks’ claims that the circuit court further revealed its bias when it (1)
denied their motion to continue the November 17 hearing date, referring to their arguments
as “disingenuous” and a “misrepresentation,” and (2) indicated its intent to proceed with the
hearing on the competing adoption petitions without them, their claims are again not well-
taken. Counsel, in her motion to continue, claimed that she had no notice of the proposed
hearing and that she had previously advised the court’s clerk of her apparent conflict with
the November 17 hearing date. The court in its order denying the motion to continue simply
clarified that counsel was aware that the hearing date would be set after the termination
hearing; that, while counsel opted to leave the hearing prior to the scheduling, her clients
were present when the hearing was scheduled for November 17; and that counsel had
objected to the November 17 date on October 5, thereby contradicting her claim that she
was not put on notice of the date the hearing was set. As a result, the court concluded that
counsel’s claim that she had no notice of the hearing was “disingenuous” and a
11 “misrepresentation” of the circumstances surrounding the trial setting. Such a conclusion
was not clearly erroneous under the circumstances and does not reflect bias on the part of
the circuit court.
Finally, it is apparent on our record that the circuit court’s ultimate decisions
regarding guardianship and adoption were not based on any prejudice or animus against the
Parks or the Department, nor did the court exhibit any sort of bias in favor of the foster
family. The court allowed both parties to proceed with their respective adoption petitions
and appeared to have decided the issues solely on the basis of what it determined was in the
best interest of the child. Thus, the court did not abuse its discretion in denying the motion
to recuse.
II. Dismissal of Petition for Guardianship
The Parks next argue that the circuit court erred in denying the guardianship petition
they filed prior to the termination hearing. They note that, at the permanency-planning
hearing, the circuit court changed the primary goal of the case to guardianship; that they had
previously received ICPC approval; and that the Department and the AAL had previously
requested they be considered as a potential placement. They claim that, as a result,
termination of parental rights was not necessary and that their guardianship petition should
have been considered. However, we note that the Parks were not parties to the dependency-
neglect proceedings at the time of the termination hearing, and they did not seek
12 intervention until after termination was granted. 5 Thus, they lacked standing to challenge
the circuit court’s termination decision, and they have not explained on what basis standing
exists for such a challenge under these circumstances. Moreover, from our record, it does
not appear that the parents, who clearly had standing to appeal the termination decision,
ever appealed the termination decision or timely challenged the Department’s failure to
place MC with a relative prior to termination.6 Thus, the circuit court’s determination that
termination was in the best interest of the child stands, and the court’s dismissal of the Parks’
petition for guardianship is affirmed.
5 We also note that the court granted the Parks’ request to intervene only for the purpose of filing their adoption petition, not for the purpose of filing the guardianship petition. However, the court in its final order acknowledged that both parties had filed guardianship petitions, but because the petitions were not considered by the court, they were therefore dismissed. 6 Case law from this court holds that a circuit court is permitted to set termination as a goal even when a relative is available and requests custody. This is because the Juvenile Code lists permanency goals in order of preference, prioritizing a plan for termination and adoption unless the juvenile is already being cared for by a relative, the relative has made a long-term commitment to the child, and termination of parental rights is not in the child’s best interest. Dominguez v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 2, 592 S.W.3d 723; Otis v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 28, 538 S.W.3d 870.
13 III. Denial of Adoption Petition
For their final point on appeal, the Parks, relying on Ellis v. Arkansas Department of
Human Services, 2016 Ark. 441, 505 S.W.3d 678, maintain that the circuit court erred in
granting the foster family’s adoption petition because the court failed to properly consider
relative placement at every stage of the dependency-neglect proceedings. They claim that the
circuit court was compelled by statute to place MC with approved relatives, yet it failed to do
so. They further assert that this failure resulted in MC’s having a stronger attachment to the
foster family and that such bond was then relied on by the court to grant the adoption
petition. Therefore, the adoption decree should be reversed, and the case remanded for the
court to reconsider in light of the statutory preference for relative placement. We disagree.
A circuit court may grant a petition for adoption if it determines at the conclusion of
a hearing that the required consents have been obtained or excused and that the adoption
is in the best interest of the child. Canerday-Banks v. Barton, 2018 Ark. App. 523; Cowan v.
Ark. Dep’t of Hum. Servs., 2012 Ark. App. 576, 424 S.W.3d 318. The Parks do not challenge
either of these requirements on appeal. Instead, their focus is on the circuit court’s failure
to consider relative placement prior to termination. However, unlike the relatives in Ellis,
the Parks did not seek to intervene in the dependency-neglect proceedings where the relative-
placement determinations were made until after termination. Following a termination of
parental rights, relatives are no longer given preference over foster parents. Suster v. Ark. Dep’t
of Hum. Servs., 314 Ark. 92, 858 S.W.2d 122 (1993); Clark v. Ark. Dep’t of Hum. Servs., 2019
Ark. App. 223, 575 S.W.3d 578; Davis-Lewallen v. Clegg, 2010 Ark. App. 627, 378 S.W.3d
14 185; see also Canerday-Banks, 2018 Ark. App. 523, at 10 n.7 (“[O]ur supreme court has made
clear that a biological grandparent’s status as a ‘relative’ terminates when his or her child’s
parental rights are terminated.”). Thus, their claims that they were entitled to relative
preference during the adoption proceedings are incorrect. Moreover, as the appellees note
in their brief, the current appeal is only from the circuit court’s determination with regard
to the adoption petitions, not from the termination petition. Thus, their arguments in this
respect are not properly before us. See Cowan v. Ark. Dep’t of Hum. Servs., 2012 Ark. App.
576, 424 S.W.3d 318 (finding that arguments related to the circuit court’s decision to deny
appellants’ motion to intervene and from the court’s permanency-planning order were not
properly before this court in an appeal from the denial of the appellants’ adoption petition).
Finally, the court in its order granting the foster family’s adoption petition and
denying the Parks’ competing petition specifically stated that it had considered the fact that
the Parks are still MC’s biological relatives despite the termination of parental rights.
Unfortunately for the Parks, it determined that relative placement could not take precedence
over the best interest of the juvenile. The circuit court determined that it was in MC’s best
interest to be adopted by her foster family with whom she had lived for almost the entirety
of her young life and with whom she had developed a tremendous bond. We give great
deference to the circuit court’s personal observations when the welfare of a young child is
involved because there is no other case in which the superior position, ability, and
opportunity of the circuit court to observe the parties carry as great a weight as one involving
minor children. Tom v. Cox, 101 Ark. App. 388, 278 S.W.3d 110 (2008). Having given the
15 record our de novo review, we cannot say that the circuit court’s finding in this regard was
clearly erroneous.
Affirmed.
ABRAMSON and KLAPPENBACH, JJ., agree.
Eden Law Firm, by: Kimberly Eden, for appellants.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor child.