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

2023 Ark. App. 392

674 S.W.3d 765

Randy HUTCHINS, Appellant

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

No. CV-23-86

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered September 20, 2023

DeeAnna Weimar, for appellant.

Ellen K. Howard, Jonesboro, 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

Randy Hutchins appeals the November 18, 2022 order of the Franklin County Circuit Court terminating his parental rights to a minor child (MC) born September 2020. Randy raises two points on appeal: (1) the Arkansas Department of Human Services (DHS) did not prove statutory grounds by clear and convincing evidence; and (2) termination of his parental rights was not in MC's best interest. We affirm.

I. Factual and Procedural Background

On September 17, 2020, DHS filed a petition for emergency custody and dependency-neglect, having taken custody of MC pursuant to a seventy-two-hour hold on September 14. The petition identified Heather Hudson¹ as MC's mother and Randy as the

putative father. The petition was supported by an affidavit by family service worker (FSW) Patricia Mitchell, which set out that MC was taken into DHS custody when MC and Hudson both tested positive for opioids at MC's birth. Mitchell went to Hudson's home address looking for Hudson, where she encountered a woman who identified herself as Terry Hutchins. Terry explained that she and Randy were married and owned the property; Hudson lived in the house behind theirs; and she and Randy had been trying to help Hudson get clean and on the right track for several years. Terry said it was rumored that Randy was MC's biological father, which was not true, but they were going to speak to an attorney about seeking guardianship over MC. Mitchell was concerned that the Hutchinses’ home was not suitable for a child to reside in because of the presence of a strong ammonia odor and puppy pads covered in urine and feces inside the home.² Randy informed Mitchell that he could be MC's father. Mitchell also spoke to Hudson, who identified Randy as MC's father.

The September 17 ex parte order found that there was probable cause that MC was dependent-neglected, placed her in DHS custody, and set a probable-cause hearing. The October 12 probable-cause order continued MC in DHS custody, ordered Randy to submit to a paternity test, and ordered DHS to conduct a study on the Hutchinses’ home. Randy retained counsel and on October 14 filed a motion asserting that MC carries his surname; he believes he is MC's biological father and that he and Hudson had executed and filed an acknowledgment of paternity (AOP) with the Arkansas Department of Health, Bureau of

Vital Records; and the AOP was sufficient to establish that he is MC's biological father. He contended that he was willing and able to take care of MC and requested that DHS "recognize his claim and either place temporary custody with him or to begin visitation between himself and his daughter, working towards permanent custody."

In the October 15 adjudication order, the circuit court adjudicated MC dependent-neglected based on parental unfitness due to Hudson's drug use and again ordered Randy to submit to a paternity test. On October 28, 2020, Randy took a paternity test, the results of which reflected a 0.00 percent probability that Randy is MC's biological father. Those results were entered into evidence at the December 2020 review hearing. Orders entered December 11, 2020, March 12, 2021, and July 9, 2021, reflected that review hearings were held via Zoom, none of which Randy attended. On August 30, 2021, the AOP and MC's birth certificate were filed in the circuit court.

The November 2, 2021 permanency-planning order provided that genetic testing had shown that Randy is not MC's biological father; he had objected to those results and requested a second test; and a second test would be facilitated. However, the order further stated that "until such time as there is proof that Randy Hutchins is the biological father of the juvenile, he is not a parent or a putative parent pursuant to the Juvenile Code, and he shall not be made a party to this case." The order also reflected that Hudson was still residing on the Hutchinses’ property, and there was a history of conflict between Terry and Hudson that had become physical at least once in August 2021, two days into MC's trial home placement with Hudson, which ultimately lasted less than a week.

A second permanency-planning hearing was held January 26, 2022, at which FSW Cheryl Warden testified that two DNA tests had shown Randy is not MC's biological father. Further, MC had not had any significant contacts with Randy. Warden testified that she had spoken to Randy while at the Hutchinses’ property looking for Hudson, and he had not seen her since December 23. DHS recommended that the goal be changed to adoption and requested a termination-of-parental-rights (TPR) hearing. The ad litem concurred. The second permanency-planning order was filed March 1, 2022, and changed the goal to adoption. On April 8, DHS filed a petition to terminate Hudson's parental rights, setting out in relevant part that the court had previously found Randy is not MC's biological father and is not a parent because paternity testing has excluded him as a father. The petition also referenced the volatile relationship between Hudson and Terry, stating that, despite DHS's attempts to assist Hudson in finding other housing, she had continued to return to the Hutchinses’ property throughout the case—albeit not recently.

On July 12, 2022, DHS moved to join Randy as a necessary party, asserting that while DNA testing established he is not MC's biological father, he is a "parent" under the Juvenile Code, and complete relief cannot be accorded to the parties in his absence. That same day, DHS filed a TPR petition with respect to Randy's parental rights pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(iii) (Supp. 2023), alleging that Randy is not MC's biological parent, and her welfare could best be served by the termination; and termination is in MC's best interest.

On July 14, the court entered a finding that Randy is a "parent" as defined by the Juvenile Code based on MC's birth certificate and the AOP. The court further found that complete relief in the form of permanency for MC could not be achieved in his absence. On August 18, Randy moved to dismiss the petition and for immediate custody, asserting that he is a legal nonoffending parent of MC, and the continued deprivation of his daughter was a violation of his due-process rights. Randy alleged that he was "only established as a legal parent on July 14, 2022." He further alleged that prior to that date, DHS had thwarted all his attempts to be reunited with MC; no services had been offered to him since he was found to be the legal parent; and DHS sought to terminate his rights on the same day they were established—July 14. The motion requested that the court grant immediate custody to Randy—without the need for a home study—and a dismissal of the petition.

On August 19, DHS filed a new petition requesting an order declaring that Randy is not the biological father of MC, setting aside the previous finding that he is a parent, and ordering that his name be removed from MC's birth certificate. On August 22, DHS responded to Randy's motion to dismiss, denying he was entitled to custody of MC, that he had any constitutional rights with respect to MC, or that he was entitled to any services. DHS reiterated its allegations in support of terminating Randy's rights as set forth in the TPR and affirmatively pled that Randy is considered MC's parent due only to a material mistake of fact and not pursuant to either biology or the establishment of putative rights through significant contact, support, or relationship. On August 23, Randy responded to

DHS's August 19 petition, admitting that he had believed he is MC's biological father but denied it was a material mistake of fact or that DHS had standing to request such relief.³

The termination hearing was held October 26, 2022. The November permanency-planning (PPH) order in which the court found Randy is not the biological parent of MC was entered into evidence, as was her birth certificate, the AOP, and the paternity-test results. FSW Warden testified that she has been the caseworker on the case since it began. MC has been in a traditional foster placement for the last eighteen months, in which she has been doing well. She has medical conditions requiring speech, physical, and occupational therapy, all of which her foster parents are aware of and manage. She is adoptable, and her current placement has expressed interest in adopting her. MC has not had any contact with Randy in over a year and would be at risk if she was placed with him. DHS had looked at placing MC with Randy and his wife, and a home study was done in September 2020. They were asked to improve their home; DHS returned to the home after the improvements were requested, and it still could not safely accommodate a child—it was not clean and appropriate. Thus, MC could not be placed with them, and they did not contact DHS afterward to have DHS look at their home again. MC would be psychologically harmed if placed in Randy's

home because she does not know him, does not ask about him, and it would be a "shock" to her—they were strangers to one another. Warden admitted that DHS oversaw who was permitted to see MC, and during Hudson's short-lived visitation and trial home placement, Randy would spend a few minutes of Hudson's visitation with MC. DHS never received any kind of communication from Randy or his attorney requesting visitation after Hudson's visitation ceased.

Warden testified further that there was a concern that Hudson would continue "coming around." Additionally, Randy and Terry "were on medication" that...