Minor Children v. Ark. Dep't of Human Servs.

2019 Ark. App. 588

589 S.W.3d 495

MINOR CHILDREN, Appellants

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and Jacklyn Gabbard, Appellees

No. CV-18-1024

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered: December 11, 2019

Rehearing Denied January 15, 2020

Chrestman Group, PLLC, by: Keith L. Chrestman, for appellants.

Dusti Standridge, for appellee, Jacklyn Gabbard.

ROBERT J. GLADWIN, Judge

MG1, CG, KG, and MG2, minor children,¹ appeal the September 14, 2018 order of the Perry County Circuit Court granting their permanent custody to Lawrence and Melissa Gabbard, paternal uncle and aunt, and closing the dependency-neglect case that appellee Arkansas Department of Human Services (DHS) had brought against the children's parents, Jacklyn and Micah Gabbard.² The children also appeal the October 23, 2018 order denying their motion for relief from judgment. They argue on appeal that the circuit court's order should be reversed because (1) the circuit court failed to make a not-best-interest finding; (2) no written home study was presented to the court; and (3) the circuit court failed to give the statutorily required notice that the case would be closed. DHS did not file a responsive brief, but Jacklyn did. We affirm.

I. Facts

DHS took emergency custody of the children on September 20, 2017, due to Jacklyn's erratic behavior and suspected drug use. An ex parte petition and order for emergency custody and dependency-neglect that placed the children in DHS custody was filed on September 22. The September 25 probable-cause order continued them in DHS's custody but mentioned a provisional placement with a relative.

The children were adjudicated dependent-neglected as a result of parental unfitness and neglect by Jacklyn in an order filed November 8. That order states that Micah contributed to the dependency-neglect by agreeing to leave the children in Jacklyn's care following their divorce, knowing her drug history. In the review order of March 7, 2018, the court indicated that the case goal was reunification with a concurrent goal of relative placement or guardianship. The circuit court found that the children should remain out of Jacklyn's custody and noted that they were in the foster home of their aunt and uncle.

The children filed a motion to suspend visitation and for no contact against Jacklyn on April 6, 2018. The motion was premised on safety concerns due to Jacklyn's "increasingly erratic behavior and desperation." Jacklyn filed a response on April 20, asking the court to deny the motion. The court entered an order on April 23, suspending visitation and ordering no contact between Jacklyn and the children.

The permanency-planning hearing (PPH) took place on August 27. At the hearing, DHS, the attorney ad litem, MG1, Lawrence, and Melissa all advocated for the termination of Jacklyn's and Micah's parental rights over permanent custody. The circuit court took the testimony under advisement. It issued a PPH order and an order of permanent custody on September 14, granting permanent custody to Lawrence and Melissa Gabbard and closing the case.

On the children's behalf, the attorney ad litem filed a motion for relief from judgment, decree, or order pursuant to Rule 60 of the Arkansas Rules of Civil Procedure on September 24. Jacklyn filed a response on October 8, asking the circuit court to dismiss the motion. A notice of appeal was filed on October 12, appealing the circuit court's September 14 order granting permanent custody. The circuit court entered an order on October 23, denying the Rule 60 motion. An amended notice of appeal was filed on November 2, appealing both the September 14 and October 23 orders.

II. Applicable Law and Standard of Review

This court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the circuit court's findings unless they are clearly erroneous.

Whitt v. Ark. Dep't of Human Servs. , 2014 Ark. App. 449, at 4, 441 S.W.3d 33, 35. 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. We give great deference to the circuit court as it is in a far superior position to judge the credibility of the witnesses. Id.

Arkansas Code Annotated section 9-27-338(c)(1)–(7) (Supp. 2017) provides in pertinent part as follows:

(c) At the permanency planning hearing, based upon the facts of the case, the circuit court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest, health, and safety of the juvenile:

(1) Placing custody of the juvenile with a fit parent at the permanency planning hearing;

(2) Returning the juvenile to the guardian or custodian from whom the juvenile was initially removed at the permanency planning hearing;

(3) Authorizing a plan to place custody of the juvenile with a parent, guardian, or custodian[;]

....

(4) Authorizing a plan for adoption with the department's filing a petition for termination of parental rights unless:

(A) The juvenile is being cared for by a relative and the court finds that:

(i) Either:

(a) The relative has made a long-term commitment to the child and the relative is willing to pursue guardianship or permanent custody; or

(b) The juvenile is being cared for by his or her minor parent who is in foster care; and

(ii) Termination of parental rights is not in the best interest of the juvenile[.]

....

(B) The department has documented in the case plan a compelling reason why filing such a petition is not in the best interest of the juvenile and the court approves the compelling reason as documented in the case plan; or

(C)(i) The department has not provided to the family of the juvenile, consistent with the time period in the case plan, such services as the department deemed necessary for the safe return of the juvenile to the juvenile's home if reunification services were required to be made to the family.

....

(5) Authorizing a plan to obtain a guardian for the juvenile;

(6) Authorizing a plan to obtain a permanent custodian, including permanent custody with a fit and willing relative; or

(7)(A) Authorizing a plan for another planned permanent living arrangement that includes a permanent planned living arrangement and addresses the quality of services, including, but not limited to, independent living services, if age appropriate, and a plan for the supervision and nurturing the juvenile will receive.

III. Argument

A. Not-Best-Interest Finding

Appellants argue that Arkansas Code Annotated section 9-27-338 provides detailed instructions to circuit courts. They contend that the court is to enter one of the seven goals listed in order of preference "in accordance with the best interest, health, and safety of the juvenile." Each goal has qualifications. Appellants argue that if the first permanency goal's requirements are not met, the court must consider the second in continuing order. Appellants contend that the first three preferences were not options because of the father's incarceration and the mother's homelessness, unemployment, lack of transportation, and being out of compliance with the case plan. Further, there was a ten-year no-contact order to keep Jacklyn from her children.

Accordingly, appellants argue that the fourth preference—adoption—authorizing DHS to file a petition for termination of parental rights, was preferred. Appellants maintain that the circuit court must authorize this plan unless the children are being cared for by a relative and the circuit court finds that termination is not in the children's best interest. Ark. Code Ann. § 9-27-338(c)(4)(A)(i)–(ii). Appellants contend that the circuit court did not make a not-in-the-best-interest finding. They argue that the circuit court's best-interest finding—that the children should remain with the aunt and uncle—is not the same as a finding that termination was not in their best interest.

Appellants argue that DHS, the attorney ad litem, and the CASA report recommended termination of parental rights due to Jacklyn's unstable life and Micah's incarceration—making reunification impossible. They contend that the aunt and uncle are stellar, and the children are thriving in their care. They assert that the circuit court agreed and that the aunt and uncle wanted to adopt. Appellants argue that adoption would have given them permanency. They rely on the oldest child's testimony that they all want their aunt and uncle to be their mom and dad. Appellants claim that these facts do not support a finding that it was not in their best interest to terminate parental rights. Appellants ask that this case be reversed and remanded with instructions that the circuit court either select the adoption permanency plan or explain why termination is not in the children's best interest.

Appellants point out that DHS did not document a compelling reason why termination was not in their best interest. See Ark. Code Ann. § 9-27-338(c)(4)(B). Appellants claim that DHS determined that it was. Also, appellants argue that DHS did provide sufficient reunification services; thus, the circuit court's failure to order adoption was erroneous. See Ark. Code Ann. § 9-27-338(c)(4)(C).

Appellants assert that the circuit court's rationale—that any error was harmless—does not make sense. The circuit court reasoned that no matter the permanency goal, DHS, the attorney ad litem, or both could still file a termination petition. However, appellants contend that this is not true because the case was closed; thus, there is no case in which to file the petition. The circuit court also reasoned that because the Juvenile Code includes a provision to reinstate terminated parental rights, adoption is no longer permanent. Appellants argue that Arkansas Code Annotated section 9-27-370 (Supp. 2017), which provides for reinstatement of parental rights, is reserved for limited circumstances, including when children are not yet...