Harris v. Ark. Dep't of Human Servs.

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2024 Ark.App. 514

GEORGIA HARRIS AND CHRISTOPHER ELLIOTT APPELLANTS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

No. CV-24-82

Court of Appeals of Arkansas, Division III

October 23, 2024

APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO 42PJV-22-5] HONORABLE TERRY SULLIVAN, JUDGE

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Georgia Harris.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel for separate appellant Christopher Elliott.

Kaylee Wedgeworth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor children.

MIKE MURPHY, JUDGE

Georgia Harris and Christopher Elliott appeal the Logan County Circuit Court's decision to terminate their parental rights. Georgia is the mother of MC1, MC2, and MC3. At the time of removal, MC1 was two years old, and twins MC2 and MC3 were one. Christopher Elliott is the father of MC1.^[1] Elliott makes two arguments on appeal: first, that he was denied due process because the Arkansas Department of Human Services (DHS) failed to secure his participation in the case; second, that grounds did not support termination. Harris argues that termination of her parental rights was unsupported by either grounds or best interest. We affirm.

On March 30, 2022, DHS received a call through the child abuse hotline from an ER doctor at Mercy Hospital in Ozark who reported that two young children (MC1 and MC2) needed to be flown to Children's Hospital due to head and neck injuries they sustained in a car accident. They had not been correctly restrained in car seats. Their mother, appellant Georgia Harris, had been driving. Harris was arrested on multiple charges and taken to jail. A DHS family service worker went to the jail that same night to visit Harris, to find out Harris was being administered Narcan. DHS exercised emergency custody of the two children. The following day, DHS exercised emergency custody of MC3, who had been with a family friend. At the time of the children's removal Elliott was in prison.

On June 28, on the parents' stipulation, the three children were adjudicated dependent-neglected due to parental unfitness and drug use. The order provides that all three parents were properly served, but neither of the fathers was present.

At the September review hearing, the court found that Elliott is MC1's father but remained incarcerated. It further found that Harris had complied with the case plan and orders of the court. Harris was approved for a trial home placement upon the attorney ad litem's agreement. The December review order likewise demonstrated that Harris was in compliance. That order acknowledged that Harris had some unresolved criminal issues and that they would be addressed at the next hearing in March. The December order recited that Elliott was still incarcerated and was not working the case plan, but the court did appoint counsel to represent Elliott going forward.

In the order following that March 2023 hearing, the court found that the goal would continue to be reunification with Harris because she was making significant, measurable progress and diligently working toward reunification: "The Court notes that reunification is expected to occur within a time frame that is consistent with the juveniles' developmental needs." The order recites that Elliott was represented by counsel but otherwise does not mention him. DHS was ordered to "find out the status of the mother's criminal case."

On June 1, the last day of the trial home placement, family service worker Brandy Ezell and her supervisor, Pamela Feemster, went to Harris's house to pick up the children because Harris had court later that day and was under the impression she would be put in jail. Harris used drugs sometime between 8:00 a.m. when Ezell and Feemster picked up the children and 11:00 a.m. when Harris arrived at the courthouse-she was reportedly "under the influence [and] very high." A DHS worker met her at the courthouse and drug tested her, and Harris tested positive for methamphetamine, among other things.

At the review hearing on July 5, Caseworker Ezell testified that she was very surprised because Harris had been clean the entire time the case was open, and the children had been happy and healthy, and their needs had been met during the trial home placement. Ezell said that at the previous hearing, it seemed as though Harris would be put on probation, but since then Harris had acquired an additional charge of failure to appear, had received fifty-four months' incarceration on her criminal charges, and was currently incarcerated.

Regarding Elliott, Ezell testified that he had been incarcerated for the entire case, and no one from DHS had gone to visit him, had a phone call with him, or offered him any services. Further evidence established that Elliott would be released from prison August 10.

The ad litem advised against changing the case's goal at that time to ensure that all procedural processes were correctly followed. The court agreed that "the dads should've been involved," but it still allowed DHS to change the goal. "These children need permanency . . . . I'm not saying I will terminate rights. We'll have a hearing." A termination-of-parental-rights hearing was set for October, but the court was clear that it wanted to hear from the fathers. Elliott was appointed new counsel; the record indicated his former counsel had failed to file a motion to withdraw earlier in the case. DHS subsequently filed a petition to terminate the parental rights of all three parents.

The termination hearing was held on October 4, 2023. Ezell testified first. Regarding Elliott, she said that upon his release from incarceration, he did not ask for any services, just visits; but he had only one visit since August. She said he wanted his daughter, MC1, to be placed with his father, but he could not currently take her. Elliott had been incarcerated throughout most of the case but had completed several services while in prison. Ezell said there were still services DHS could provide to Elliott: parenting classes and visits, individual counseling, and a drug assessment. It was her impression, however, that Elliott did not want to participate in the case plan or receive services. She said he did not want custody; he wanted his daughter to go live with his father.

Regarding Harris, Ezell testified that she had been clean for the entirety of the case but failed her drug test at the courthouse on June 1. Harris loves and is bonded with her children. Harris's home was appropriate. But Harris was incarcerated and would continue to be until at least the following March.

Harris testified that she took the drugs before her court appearance because she was already resigned to losing her kids. She admitted she was so intoxicated that she was not allowed to enter her guilty plea until the following day. She said that she has a job available when she gets out and that she can take parenting classes and counseling sessions while in prison.

Elliott testified that he had served the entirety of his prison sentence, and while he was incarcerated, he had completed classes on parenting, anger management, communication skills, thinking errors, and substance abuse. He was never notified about his case despite writing letters asking for information and visitation, and he was never notified he was appointed an attorney in December 2022. He never saw a case plan or met with a caseworker. He said that he could not take his daughter with him today but that she could go to his father's house.

DHS supervisor Pamela Feemster testified that Elliott's father and stepmother were not currently considered for placement by DHS because of some information that showed up on Elliott's father's background check.

Finally, there was testimony that the children are well adjusted in the foster placements, receiving appropriate therapies, and are adoptable. There are multiple adoptive families interested in the children.

During closing arguments, Elliott's counsel argued that DHS had not provided his client any services, Elliott is no longer incarcerated, and the other placement options had not been adequately explored. Harris's counsel argued that clear and convincing evidence did not support termination, considering her compliance throughout the case and the relatively short amount time she is expected to be incarcerated.

The court found that grounds supported terminating both parents' parental rights and that it was in the children's best interest to do so. It granted DHS's petition, and an order reflecting the ruling was entered on November 14. That order provided that it was terminating Harris's parental rights on the following grounds: Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2023), twelve-month failure to remedy by a custodial parent; Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a), subsequent factors; and Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a), aggravated circumstances. The same order provided that it was terminating Elliott's parental rights pursuant to the following grounds: Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b), twelve-month failure to remedy by a noncustodial parent; Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a), failure to provide support or maintain contact; Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a), subsequent factors; and Ark. Code Ann. § 9 341(b)(3)(B)(ix)(a), aggravated circumstances.

Both parents appeal, but the arguments were presented to this court in separate briefs. We will address each parent's arguments individually.

I. Standard of Review

Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination...