Shawkey v. Arkansas Department of Human Services

2017 Ark. App. 2, 510 S.W.3d 803, 2017 Ark. App. LEXIS 17
CourtCourt of Appeals of Arkansas
DecidedJanuary 18, 2017
DocketCV-16-761
StatusPublished
Cited by16 cases

This text of 2017 Ark. App. 2 (Shawkey v. Arkansas Department 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
Shawkey v. Arkansas Department of Human Services, 2017 Ark. App. 2, 510 S.W.3d 803, 2017 Ark. App. LEXIS 17 (Ark. Ct. App. 2017).

Opinion

RITA W. GRUBER, Chief Judge

|,Appellant, Richard Shawkey, appeals from an order of the Sebastian County Circuit Court terminating his parental rights to his son, D.S., born January 23, 2015. 1 He contends on appeal that the evidence was insufficient (1) to support the grounds for termination and (2) to support the court’s finding that it was in D.S.’s best interest to terminate his parental rights. We find no error and affirm the circuit court’s order.

The events that led to the termination began on January 25, 2015, when the Arkansas Department of Human Services (DHS) exercised an emergency hold on D.S., alleging that he was at a substantial risk of serious harm due to his mother’s failure to remedy conditions that caused the removal of her older son, D.S.’s half brother, in April 2014. Appellant was identified as the putative father in the petition for emergency custody. Appellant appeared at the probable-cause hearing on February 2, 2015, and was ordered by the court to undergo | ¿paternity testing, which he did on March 11, 2015. He attended the adjudication hearing on March 16, 2015. In its adjudication order entered on July 6, 2015, the circuit court ordered him to do the following things: establish paternity; obtain and maintain stable and appropriate housing, income, and transportation; complete parenting classes and visit D.S. regularly; submit to a drug-and-alcohol assessment and complete any recommended treatment; submit to random drug screens and hair-follicle testing at the request of DHS and achieve and maintain total sobriety; submit to a psychological evaluation and comply with the recommendations thereof; and resolve his pending criminal charges and comply with the terms and conditions of any criminal sentences. After a review and paternity hearing on July 6, 2015, which appellant attended, the court entered an order on July 10, 2015, finding that appellant was the legal father of D.S. and finding that DHS had made reasonable efforts to provide family services.

Appellant did not appear at the permanency-planning hearing on January 4, 2016. The court’s permanency-planning order, entered on March 9, 2016, found that appellant had not complied with the .case plan, had not completed any services on his case plan, had not visited D.S. regularly, had relocated to Conway, and had not provided proof of his housing, employment, or transportation. Because both parents had failed to exercise visitation on a regular basis, the court stated that DHS had discretion to arrange appropriate visitation at the parents’ request. The court determined that the goal of the case was adoption and authorized DHS to file a petition for termination of parental rights.

A termination hearing was held on April 4, 2016. Again, appellant did not attend. The only testimony was from the caseworker assigned to D.S.’s case, Rebecca Newton. She testified that drugs had been “an issue” for appellant. The record contains 19 positive drug] a screens from January 26, 2015, through October 27, 2015, and no negative drug screens. The results included positive tests for THC, PCP, amphetamines, and methamphetamine. Ms. Newton testified that appellant had provided no documentation that he had completed any drug treatment. Ms. Newton also testified that appellant had initially visited with D.S. 13 times, but he had not visited since October 6, 2015. She stated that appellant had contacted her in January after the permanency-planning hearing to ask whether DHS could provide D.S. with transportation to Conway for a visit. She told appellant that she would need to check with the foster parents, and they discussed a visit in Russellville or Clarks-ville. She said that appellant never called her back and that she did not call him back, either. She did not recall why she had failed to follow through with setting up. visitation. She also testified that appellant had not completed parenting .classes. She said that appellant had been offered services for more than a year, that he had relocated to Conway and failed to maintain contact with her or D.S., and that DHS recommended adoption because it was not in D.S.’s best interest to be returned to his parents. She said that D.S. was adoptable and had no developmental or medical issues.

The court entered an order on May 27, 2016, terminating appellant’s parental rights. The court found that DHS had proved four grounds for termination by clear and convincing evidence: (1) the child had been adjudicated dependent-neglected and had continued out of the home of the noncustodial parent for twelve months and despite a meaningful effort by DHS to rehabilitate the parent and the conditions .that prevented the child from safely being placed in the parent’s home, the parent had failed to remedy the conditions; (2) the child had lived outside the home of the parent for a period of twelve months and .the parent had willfully failed to maintain meaningful contact with the child; (3) other factors arose ^subsequent to the filing of the original petition that demonstrated placement of the child with the parent was contrary to the child’s health, safety, or welfare and, despite the offer of appropriate family services,' the parent manifested incapacity or indifference to remedying the subsequent issues; and, (4) aggravated circumstances: there was little likelihood that services to the family would result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(6), (ii)(a), (viQ(a), (ix)(a )(3) (Repl. 2015). The court specifically found that appellant had moved to Conway after his paternity had been established and had failed to maintain contact with DHS. The court found that he had not visited D.S. in eight months, had visited .only sporadically before ceasing visits altogether, and had never completed substance-abuse treatment or successfully addressed his drug use. The court also found that the circumstances regarding appellant’s housing, employment, and transportation were unknown and noted that appellant had not “even” appeared at the termination hearing. The court also found that it was in D.S.’s best interest to terminate appellant’s parental rights, specifically considering adoptability and potential harm.

We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341. In making a “best interest” determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor that the trial court must consider. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. Likewise, |fithe potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine, 2010 Ark. App.

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Bluebook (online)
2017 Ark. App. 2, 510 S.W.3d 803, 2017 Ark. App. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shawkey-v-arkansas-department-of-human-services-arkctapp-2017.