Park v. Ark. Dep't of Hum. Serv.

680 S.W.3d 456

2023 Ark. App. 546

Rhonda PARK and James Park, Appellants

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

No. CV-23-256

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered November 29, 2023

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT [NO. 71JV-21-22], HONORABLE SUSAN WEAVER, JUDGE

Eden Law Firm, by: Kimberly Eden, for appellants.

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

Dana McClain, attorney ad litem for minor child.

CINDY GRACE THYER, Judge

₁This appeal arises from a Van Buren County Circuit Court’s denial of biological relatives’ petitions for guardianship and for adoption of a minor child (MC) after parental rights to the child were terminated. MC’s great-aunt and great-uncle, Rhonda and James Park, challenge the court’s denial of their petitions, the court’s grant of the foster parents’ petition to adopt, and the court’s failure to recuse itself. We affirm.

To fully understand the arguments on appeal, a brief overview of the underlying dependency-neglect proceedings is necessary.

In August 2021, the Arkansas Department of Human Services (Department) was notified that MC’s mother had tested positive for amphetamines at MC’s birth. MC’s mother also admitted she was homeless. As a result, the Department exercised a seventy-two-hour₂ hold on MC due "to parental unfitness as a result of illegal drug use, Garrett’s Law, and [her] mother’s pattern of homelessness and overall stability."¹ MC’s mother subsequently stip- ulated to a finding of dependency-neglect, and the court set the goal of the case as reunification with a fit and appropriate parent. As part of the case plan, the court ordered the Department to provide four hours of supervised visitation each week.

A review hearing was held in January 2022, after which the court entered an order² finding that, although MC’s mother had less than partially complied with the case plan and court orders, the goal of the case would continue to be reunification but with a concurrent goal of adoption. The court noted in the order that the Department had completed an Interstate Compact on the Placement of Children (ICPC) package on the Parks, who live in Florida. At the time of the review hearing, MC remained in provisional foster care in Arkansas, and visitation between the parents and MC was being provided to support reunification efforts. The Parks’ ICPC home study had been approved prior to the hearing, but the results were not mailed to the Department until shortly thereafter.

₃On March 18, 2022, the Department filed a motion for ICPC placement of MC with the Parks in Florida. In its motion, the Department stated that relatives are given preferential treatment in the placement of juveniles in dependency-neglect actions and asserted that it was in MC’s best interest that she be placed with the Parks. The Department noted that the goal of the case was reunification with a concurrent goal of adoption; that the mother was less than partially compliant with the case plan; and that the father was only partially compliant. The attorney ad litem (AAL) concurred with the Department’s request to grant an ICPC placement with the Parks.

A combined review hearing and a hearing on the motion for ICPC placement was held on May 16, 2022. Parent counsel objected to MC’s being placed with the Parks in Florida because, among other things, it would be difficult to provide the parents visitation if MC were in Florida. After the hearing, the court reiterated that the goal of the case was reunification with a fit and appropriate parent and denied the ICPC placement with the Parks. In doing so, the court found that, while MC’s mother was only minimally compliant with the case plan, she was attending visitation and had completed the parenting assessment. The court also found that MC’s father was in compliance with the case plan and noted, in part, that he was working, attending visitation, and had completed the parenting assessment.

A permanency-planning hearing was held on August 3, 2022, after which the court found that both parents had only minimally complied with the case plan and changed the goal of the case to guardianship with a fit and willing relative together with a concurrent goal ₄of adoption after termination of parental rights.³ Despite the goal change, the court continued the parents’ right to visitation with MC. The court set October 5, 2022, as the date for the termination hearing.

On August 11, 2022, the foster parents, who had had custody of MC since her removal, filed a motion seeking leave to intervene in the dependency-neglect case for purposes of filing a guardianship petition. The attorney ad litem filed a response requesting that the court deny the motion to intervene as premature given the current stage of the dependency-neglect proceedings.

A week later, the Department filed a petition for termination of parental rights followed by adoption and noted that the hearing on the petition was set for October 5, 2022.

The day before the termination hearing, the Parks filed a petition to be appointed the permanent guardians of MC. They noted that their ICPC home study had been approved, but placement had not yet been made. That same day, the Department filed a motion for continuance of the termination hearing to allow it more time to consider MC’s permanency options and to respond to the Parks’ petition for guardianship.

At the beginning of the termination hearing, the court asked whether the foster parents’ motion to intervene was being considered. Counsel for the foster parents responded that they would be seeking to adopt MC and thus needed to amend their pleading requesting ₅ntervention. The AAL and the Department requested a hearing on the motion, and the parties agreed that a hearing date would be set at the conclusion of the termination hearing.

The Department then requested that, prior to the commencement of the termination hearing, it be allowed to dismiss its termination petition so that it could consider the competing guardianship petitions. The court denied the Department’s motion to dismiss, finding it untimely.

The case then went forward on the petition to terminate. After the hearing, the court filed an order terminating parental rights and changing the permanency plan for MC to adoption. The termination order set the hearing on the foster parents’ motion to intervene and petition for adoption for November 17, 2022.

On October 12, 2022, the Parks filed a petition to adopt MC, claiming that it was in MC’s best interest to be placed with biological relatives and that Arkansas law required that relative placement be considered at all stages of the case. Two days later, the foster parents filed an amended motion for leave to intervene to file an adoption petition, which the court granted. Their adoption petition was filed of record on October 19, 2022, and their adoptive home study was approved on November 7, 2022.

The Parks, on the other hand, did not file their motion to intervene until October 19, the same day the foster parents filed their adoption petition. The Parks sought leave to intervene for purposes of establishing a permanent guardianship as to MC or, in the alternative, to adopt her.

₆On November 14—three days before the scheduled hearing on the motions to intervene and related petitions—the Parks moved to continue, citing their counsel’s conflict with the November 17 court date; They claimed they had only recently discovered the hearing date, that they needed to travel out of state, and that they would have to make last-minute adjustments to their schedule to attend a hearing where their counsel would not be available.

The court denied the continuance motion. In doing so, it noted that the Parks had been present at the termination hearing on the day the hearing was set, as was their counsel. The court stated that counsel was aware that a date for the intervenor-adoption hearing would be set upon the conclusion of the termination-of-parental-rights hearing but opted to leave before the hearing date was set. In any event, the Parks were present when the November 17, 2022 hearing was set and thus had actual notice of the hearing date. Moreover, the court found the Parks lacked standing to request a continuance because their motion to intervene had not yet been granted.

On the morning of the termination hearing, the Parks moved to disqualify the circuit judge, claiming that she had consistently disregarded Arkansas law with respect to the relative-placement preference and that she had improperly denied the Department’s request to dismiss the termination petition so that it could consider relative placement and proceeded with termination. The Parks asserted the court had indicated a bias and or prejudice against them through its various statements and comments and further pointed to the dismissal of their continuance motion as evidence that the circuit judge should recuse ₇herself. The Parks maintained that, as a result of the foregoing, the court’s impartiality had been called into question, thereby requiring her recusal.

The motion to disqualify was considered at the November 17 hearing. Despite having previously claimed a conflict with the hearing date, the Parks’ counsel was present at the hearing. After the hearing, the court granted the Parks’ motion to intervene but denied their motion to disqualify.

The hearing on the competing petitions for adoption was held on January 18, 2023. After the hearing, the court entered an order granting the foster family’s adoption petition and denying the Parks’ competing petition. In doing so, the court recognized that the Parks’ ICPC had been approved and that they had reached out to the Department multiple times during the dependency-neglect proceedings in an attempt to establish a relationship with MC and to be involved in the case. The court noted that it had considered ICPC placement on two separate occasions but had...