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

1

2023 Ark.App. 173

ALEXIUS HILE AND DUSTIN WOOD APPELLANTS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

No. CV-22-686

Court of Appeals of Arkansas, Division III

March 29, 2023

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-20-355] HONORABLE ANNIE HENDRICKS, JUDGE

Tabitha McNulty, Arkansas Commission for Parent Counsel, for separate appellant Alexius Hile.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant Dustin Wood.

Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.

RITA W. GRUBER, Judge

Alexius Hile and Dustin Wood separately appeal the August 11, 2022 order of the Sebastian County Circuit Court terminating their parental rights to their son (MC). Although phrased slightly differently, each parent contends on appeal that the circuit court erred because it did not consider relative placement as part of its best-interest analysis. Because the specific issue raised by the parents on appeal is not preserved, we affirm.

Neither Hile nor Wood challenge the circuit court's finding of statutory grounds for termination; thus, any such challenge is waived. Scott v. Ark. Dep't of Hum. Servs. 2021 Ark.App. 200, at 3, 624 S.W.3d 697, 699. They also do not attack the circuit court's findings regarding adoptability or future harm within the best-interest analysis. Thus, this court need not address those findings. See, e.g., Gibby v. Ark. Dep't of Hum Servs., 2022 Ark.App. 146, at 25, 643 S.W.3d 794, 809. The parents' arguments focus solely on relative placement as part of the best-interest analysis. Due to the narrow issue before us, only a brief recitation of the facts is warranted.

I. Facts and Procedural History

On October 17, 2020, Hile took four-month-old MC to an emergency room due to a head injury. When MC was examined, it was observed that he had other injuries that were not consistent with the explanation provided by his parents regarding how the injuries occurred. Subsequent testing revealed that MC had eight fractures in at least two different stages of healing in his skull, clavicle, left arm, and shin; and ribs six, seven, nine, and ten. As a result, the Arkansas Department of Human Services (DHS) exercised emergency custody of MC and removed him from the parents' custody. Hile was drug screened and tested positive for THC, while Wood admitted that if he were drug screened, he would test positive for THC.

On October 20, DHS filed a petition for dependency-neglect and emergency custody, alleging that MC was dependent-neglected based on abuse, neglect, and parental unfitness. Within the supporting affidavit, the following individuals were identified as MC's relatives: Veronica Snow, MC's paternal grandmother; Doris Bowen, MC's paternal great grandmother; and Katrina Patterson, MC's paternal great-aunt. It further stated that a protective-services case was already open since MC was born with THC in his system, and both parents had been placed in the foster-care system as juveniles. The circuit court held hearings and entered orders finding probable cause and adjudicating MC dependent- neglected based on physical abuse by an unknown offender along with parental unfitness and failure to protect by both parents.

On April 14, 2021, the court held a review hearing at which the circuit court made various findings-including that DHS had made reasonable efforts-and continued the goal of reunification. On October 20, 2021, the court held a permanency-planning hearing at which it found DHS had made reasonable efforts and changed the goal of the case to concurrent goals of reunification and adoption.

In January 2022, both Hile and Wood were sentenced to time in the Arkansas Department of Corrections pursuant to negotiated pleas within their respective revocation proceedings. In exchange for their respective pleas, the State agreed not to file charges against them related to MC's injuries. On January 19, the court held a fifteen-month review hearing and continued the goals and made various findings, including the finding that DHS had made reasonable efforts.

On February 25, 2022, MC's attorney ad litem filed a petition to terminate Hile's and Wood's parental rights (TPR), asserting three statutory grounds. The court heard testimony and received evidence regarding the TPR on April 27. Robby McKay, a foster care supervisor, testified in relevant part that DHS has had an open case on MC since he was born, and throughout the case, the parents insisted that they had been MC's only caretakers. DHS "looked into" relative placement, but it did not work out "because of prior history with the Department," and "pretty much every relative" DHS looked into "had some issue" that prevented placement of MC with that relative. She further testified that if the court ordered MC to be placed with a relative that day, it would be impossible.

On cross-examination, McKay testified that DHS looked at Snow, Bowen, and Patterson for relative placement. The issue with Snow was that DHS sent an Interstate Compact on the Placement of Children home-study request, but Oklahoma denied placement. McKay further testified that they "probably had problems finding relatives as we had history with both of these parents as juveniles and their family members were on the central registry."

Neither Hile nor Wood testified, nor did they put on any evidence at the hearing. There is no record evidence that Snow, Bowen, or Patterson had ever expressed any interest in MC, attended any of the proceedings regarding him, or had met or visited with him, let alone had any sort of relationship with him.

Closing argument was made on behalf of DHS followed by arguments on behalf of Hile and Wood. Just before the attorney ad litem gave her closing, Hile's attorney interjected and said the following:

I'm sorry, Judge. Just one other thing that I did forget to mention, Your Honor. When we talked about family members and the other-the other side of this would be an adequate family member that would be there to be able to take the child instead of a stranger or a foster parent, the Department went through three. One of them was denied on a denied home study. The other two, the Department could not tell me whether they looked at them, what they had done, or what their reason was. So that's also-I want to put in my closing statement, I think the Department should have made better efforts to find those other family members, especially since they knew in January that the parents were incarcerated. Thank you.

The attorney ad litem then made her closing argument. DHS's attorney then argued, in part, as follows:

I would also say that Ms. McKay did testify that we looked at other families, other relatives, and that there were various reasons-we didn't have like a laundry list of these reasons, but they were not approved by the Department for placement. Thank you.

No relative-placement argument was made by Wood's attorney.

The court orally ruled that it was finding by clear and convincing evidence that it was in MC's best interest that the parents' rights be terminated. The court specifically set out that DHS had met its burden of proof regarding the statutory grounds alleged and that MC is adoptable, and the risk of harm to MC was physical and "far outweighs the adoptability issue." At the conclusion of its ruling, the court addressed the attorneys and asked if there was anything else that needed addressing. In response, Hile's attorney asked that Hile be provided some photographs and then objected to the court's finding of physical abuse and failure to protect because the finding at the adjudication was physical abuse by an unknown offender. The court then corrected that finding, and the hearing concluded. The court's oral ruling did not address relative placement.

The order setting forth these findings and terminating both Hile's and Wood's rights was entered on August 11. The circuit court specifically found that McKay's testimony was credible. The court found that DHS had made reasonable efforts to finalize MC's permanency plan and had made reasonable and meaningful efforts to provide appropriate family services to the family. The order makes no...