Dreher v. Ark. Dep't of Human Servs. & Minor Child

2022 Ark. App. 64

639 S.W.3d 899

Friedrich DREHER, Appellant

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees

No. CV-21-405

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 9, 2022

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

Andrew Firth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, Little Rock, attorney ad litem for minor child.

RITA W. GRUBER, Judge

Appellant Friedrich Dreher appeals from an order of the Saline County Circuit Court terminating his parental rights to his child, FD. On appeal, he argues that the Arkansas Department of Human Services (DHS) failed to prove any of the grounds relied on by the circuit court in the termination order because he was never found to be FD's parent. Both DHS and the attorney ad litem concede error in this case. We reverse and remand.

On October 9, 2019, DHS filed a petition for dependency-neglect alleging that it had exercised a seventy-two-hour hold on FD (03/24/2010), LD (06/25/2013), and MB (08/27/2017). The children were removed from the custody of their mother, Chelsea Bedoy.¹ Appellant was identified as FD's putative father, who has had significant contact with FD and whose name is on the birth certificate. The affidavit of the Arkansas State Police investigator states that the Crimes Against Children Division received a report involving the children. The allegations in the referral included exposure to a live sex act, sexual contact, and threat of harm. As a result of the investigation, the children were placed in DHS custody. The affidavit of the family service worker (FSW) lists appellant as father of FD but also provided: "Legal: Putative, Friedrich and Chelsea were not married when [FD] was born, however, Friedrich, Sr. is on the birth certificate." The ex parte order for emergency custody was entered on October 10, 2019, listing appellant as "parent" in the caption. The probable-cause order entered October 15, 2019, indicates that appellant was present at the hearing and provides that appellant shall participate in DNA testing to establish paternity.

On January 3, 2020, the Saline County Circuit Court entered an adjudication order finding the children dependent-neglected and that the children were at a substantial risk of harm as a result of abuse, neglect, and parental unfitness. The order provides that appellant was served with a copy of the petition on October 13, 2019, and states that he is a defendant because he is a putative parent under the Arkansas Juvenile Code as he had significant contact with FD, and his rights as a putative parent had attached. He was not listed as being present at the December 2, 2019 adjudication hearing, but the order requires that appellant participate in DNA testing to establish paternity.

The order set the goal of reunification, and the parents were ordered to submit to random drug screens on request; participate and attend all visitation; schedule and keep all appointments; obtain and maintain a safe, suitable, and appropriate home for themselves and the juveniles; maintain an environment free from illegal substances or other health and safety hazards; obtain and maintain adequate income to support themselves and the juveniles; request assistance for transportation forty-eight hours in advance; cooperate with DHS and CASA; permit DHS and CASA to inspect their home; participate in any service requested by DHS; maintain consistent contact with the juveniles and DHS; demonstrate stability and the ability to provide for the health, safety, and welfare of the juveniles; and keep DHS informed of their current addresses.

On June 15, after a May 15 review hearing, the circuit court ordered that the children remain in DHS custody and continued the goal of reunification with the concurrent goal of fictive-kin placement. The court found that appellant had not complied with the case plan and the court's orders and was not making progress toward alleviating or mitigating the cause of the out-of-home placement. Appellant was ordered to follow all court orders and the case plan. The circuit court found that DHS had complied with the case plan and had provided services to achieve the goal of reunification. A review hearing was scheduled for August 3.

Following the August 3 hearing, the court entered a review order on August 21. Appellant was not listed as being present at the hearing.² The court ordered that the children remain in DHS custody and continued the goal of reunification with the concurrent goal of fictive-kin placement. The court found that appellant had not complied with the case plan and court orders and had not had contact with DHS since June 2020. Appellant was ordered to follow the case plan and follow all orders. The circuit court again found that DHS had complied with the case plan and provided services to achieve the goal of reunification. The order stated that a permanency-planning hearing was set for September 28.

The circuit court entered a permanency-planning order on October 27, changing the goal of the case to adoption with DHS filing a termination petition. The court again found that appellant had not complied with the case plan and orders of the court and had not had contact with DHS since June 2020. It also noted that he was reportedly homeless and unemployed.

DHS filed its petition for termination of parental rights on December 16, seeking termination of Bedoy's rights to all three juveniles and appellant's rights as to FD. The petition noted that DNA testing of the putative parent named in the petition for LD was determined not to be the parent and that the putative parent of MB had not provided evidence to the court to establish paternity and no rights as a putative parent had attached. The grounds for termination included (1) failure to remedy; (2) failure to provide support and maintain meaningful contact; (3) subsequent factors; and (4) aggravated circumstances, specifically little likelihood that services to the family would result in reunification.

Appellant requested and was appointed counsel to represent him at the termination hearing. After several continuances, the termination hearing was held May 20, and the court entered a June 10 order terminating his parental rights based on three of the grounds alleged by DHS—failure to remedy, failure to provide meaningful support, and subsequent factors. Appellant filed a timely notice of appeal on June 16, 2021.

Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2021), an order forever terminating parental rights shall be based on clear and convincing evidence of one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B). Proof of only one statutory ground is sufficient to terminate parental rights. Bridges v. Ark. Dep't of Hum. Servs. , 2019 Ark. App. 50, 571 S.W.3d 506. The circuit court must also find by clear and convincing evidence that termination is in the best interest of the child, including consideration of the likelihood that the child will be adopted if the termination petition is granted and 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).

Termination-of-parental-rights cases are reviewed de novo. Wright v. Ark. Dep't of Hum. Servs. , 2019 Ark. App. 263, at 9, 576 S.W.3d 537, 543. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. 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. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. As with all issues when addressing child placement, the appellate court affords heightened deference to the circuit court's superior position to observe the parties personally and to weigh credibility. Dinkins v. Ark. Dep't of Hum. Servs. , 344 Ark. 207, 215, 40 S.W.3d 286, 292–93 (2001).

Appellant argues that the termination decision must be reversed because DHS failed to prove he is FD's parent and thus failed to prove an essential element as to each ground on which the termination was granted. "Parent" means a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has signed an acknowledgment of paternity pursuant to section 9-10-120 or who has been found by a court of competent jurisdiction to be the biological father of the juvenile. Ark. Code Ann. § 9-27-303(41) (Repl. 2020).³

Although DHS pled four grounds in its petition to terminate parental rights, the circuit court found that DHS had established three of the grounds. These included Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) ("That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent"); Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a) ("The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material...