Ross v. Arkansas Dep't of Human Services

378 S.W.3d 253, 2010 Ark. App. 660, 2010 Ark. App. LEXIS 707
CourtCourt of Appeals of Arkansas
DecidedOctober 6, 2010
DocketNo. CA 10-605
StatusPublished
Cited by5 cases

This text of 378 S.W.3d 253 (Ross v. Arkansas Dep't 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
Ross v. Arkansas Dep't of Human Services, 378 S.W.3d 253, 2010 Ark. App. 660, 2010 Ark. App. LEXIS 707 (Ark. Ct. App. 2010).

Opinion

ROBERT J. GLADWIN, Judge.

| ¶Appellant James Ross appeals the order of the Clark County Circuit Court terminating his parental rights with respect to his minor children, J.R.(l), S.R., and J.R.(2). He argues that the termination of his parental rights was not authorized by Arkansas Code Annotated section 9-27-341(a)(3) (Supp.2009) and was not in the children’s best interest. We affirm.

According to an affidavit filed with the petition for emergency custody, on August 27, 2008, the Arkansas Department of Human Services (DHS) opened a protective-services case on the Ross family after receiving a report that appellant had abused Mrs. Ross’s son, D.S., who was not appellant’s legal child. On September 24, 2008, after developing a safety plan, DHS took D.S. and the Rosses’ two children, J.R.(1) and S.R., into custody after Mrs. Ross failed a drug screen.

| «At the adjudication hearing held on November 12, 2008, the circuit court found the children to be dependent-neglected and set a concurrent goal of reunification or relative placement with the maternal grandparents, who were caring for the children while they were in DHS custody. The circuit court ordered various services for appellant and his wife, including individual and family therapy, drug and alcohol assessment, random drug screens, parenting classes, and for appellant, anger-management classes.

At some point during the case, Mrs. Ross was sentenced to the Arkansas Department of Correction (DOC); the record does not reveal precisely when this occurred, but the circuit court appointed DOC parent counsel to represent her at the February 9, 2009 review hearing. While Mrs. Ross was in prison, she gave birth to the Rosses’ third child, J.R.(2), on April 13, 2009, and DHS took J.R.(2) into custody as well. The circuit court adjudicated J.R.(2) dependent-neglected on May 11, 2009, and likewise set the goal for her as reunification or relative placement.

On October 13, 2009, appellant was committed to the DOC on the revocation of his probation for domestic battery and possession of an instrument of a crime. The revocation was based on violations of the commission of residential burglary and aggravated assault that arose pursuant to an incident on July 11, 2009, as well as his failure to report to his probation officer. He has remained incarcerated since that time.

|aDHS filed a petition to terminate appellant’s parental rights on September 28, 2009, and after a hearing held on December 14, 2009, the court granted the petition in an order filed on March 15, 2010. Appellant filed a timely notice of appeal on April 5, 2010.

An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest. ArkCode Ann. § 9-27-341(b)(3)(A) (Supp.2009). Additionally, DHS must prove at least one statutory ground for termination by clear and convincing evidence. ArkCode Ann. § 9-27-341(b)(3)(B) (Supp.2009). Our statute provides, as a ground for termination, that the child has been adjudicated dependent-neglected and has continued out of the custody of the parent for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. ArkCode Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp.2009).

We review cases involving the termination of parental rights de novo. Griffin v. Ark. Dep’t of Health & Human Servs., 95 Ark. App. 322, 236 S.W.3d 570 (2006). However, although we review the factual basis for terminating parental rights under a clearly erroneous standard, no deference is given to the circuit court’s decision with regard to errors of law. Id.

Appellant does not specifically challenge the circuit court’s determination that statutory grounds existed under Arkansas Code Annotated section 9-27-341(b)(3)(B) for the termination of his parental rights, arguing instead that the decision was not in the children’s best interests. Ark.Code Ann. § 9-27-341(a)(3)(A) (Supp.2009). He challenges whether the | ¿relevant statutes permit a circuit court to terminate the rights of one of the children’s parents, but not the other, when the parents are still married to one another and the plan is for the children to potentially return to the remaining parent. In the instant case, he claims that there are no compelling reasons to terminate his parental rights and that it is contrary to the children’s best interests to do so.

Appellant notes that the public interest behind the termination process is to protect children who have been abused or neglected, removed from their parents’ custody and placed in foster care, because their impermanent status works against their welfare and best interests. Hathcock v. Ark. Dep’t of Human Servs., 347 Ark. 819, 69 S.W.3d 6 (2002); see also Ark.Code Ann. § 9-27-341(a)(2)-(3) (Supp.2009). In this case, appellant argues that his children’s fate was not indeterminate, as DHS’s plan was to return them to their mother’s custody in the near future, or failing that, to grant permanent custody to their maternal grandparents.

Citing Caldwell v. Arkansas Department of Human Services, 2010 Ark. App. 102, 2010 WL 374432, appellant notes that this court addressed a similar situation and found that the termination of parental rights was clearly erroneous because the plan for the child in question was to remain in her mother’s custody. Observing that, in considering the child’s best interest, the circuit court is to consider, inter alia, the likelihood that the children will be adopted if the petition is granted, the court held that because the child was not going to be placed for adoption but would be returned to her mother, termination of the appellant’s parental rights would not serve to achieve permanency for the child. Id. Under these circumstances, appellant contends Isthat the relevant statutes do not authorize termination of appellant’s parental rights, and the trial court erred in granting DHS’s petition.

We disagree. Termination of parental rights must be in the child’s best interest and be based on at least one of the nine statutory grounds provided under Arkansas Code Annotated section 9-27-341(b)(3). The circuit court found that both elements were met in the instant case. We note that the overall evidence— not proof of each factor — must demonstrate that termination of parental rights is in the child’s best interest. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). The potential-harm evidence moreover must be viewed in a forward-looking manner and considered in broad terms. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722; Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285 S.W.3d 277 (2008).

The record contains the following evidence related to the potential-harm issue. On August 27, 2008, DHS received a report which stated that appellant had struck D.S.

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Bluebook (online)
378 S.W.3d 253, 2010 Ark. App. 660, 2010 Ark. App. LEXIS 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-arkansas-dept-of-human-services-arkctapp-2010.