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

2019 Ark. App. 591

591 S.W.3d 824

Jonathan TERRY, Appellant

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

No. CV-19-463

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 11, 2019

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

Andrew Firth and Callie Corbyn, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

BRANDON J. HARRISON, Judge

This appeal concerns the termination of a parent's rights to his child. We ordered supplemental briefing in this case on 2 October 2019 because significant changes in Arkansas's termination-of-parental-rights law occurred since this appeal has been pending. See Act of Feb. 28, 2019, No. 541, § 1, 2019 Ark. Acts ____. In the opinion that ordered supplemental briefing, we asked the parties to answer the following questions:

1. Does Act 541 apply to this appeal? Why or why not?

2. Does Act 541 resolve any issues raised in the briefs that have already been filed in this case and based on the record now on file with this court's clerk? Why or why not?

Some old caselaw from our supreme court indicates that a case should be decided under the law in effect when the appellate court issues its decision. Green v. Abraham , 43 Ark. 420, 424 (1884) ("If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when their decision is rendered.") (internal quotes and citations omitted). In the area of juvenile law, however, Green no longer applies. Though it misstated the holding in Green , our supreme court in Goldsmith v. Arkansas Department of Human Services , 302 Ark. 98, 787 S.W.2d 675 (1990), declined to apply a change in the law that occurred after a termination order had been entered but before the appeal of the order was decided on appeal. Therefore, we will follow the Goldsmith approach in this case.

Act 541, among other things, provides a new ground for terminating a parent's rights to a child. Going forward, a parent may face a petition to terminate "if a parent has not established paternity or significant contacts with the child" because the General Assembly enacted legislation that places the burden on a putative parent—and no longer on the Arkansas Department of Human Services—to establish paternity of a child in the dependency-neglect context. Act 541, § 6 (amending Ark. Code Ann. § 9-27-341(b)(3)(B)(x) ); Ark. Code Ann. §§ 9-27-316(h)(4)(A), -325(o)(4) (stating obligation of putative parents). In this case, however, we agree with parent counsel's supplemental brief that the changes wrought by Act 541 do not apply to this appeal. That is why we have applied the law as it existed before Act 541 took effect to the final order now on appeal.

I. The Circuit Court Proceedings

In November 2017, two children were removed on an emergency basis given complaints that their mother, Christina Tortorello, had neglected them. Jerry Strode was identified as the putative father of nine-year-old J.S. Jonathan Terry was identified as the putative father of four-year-old A.T. DHS believed that Terry was incarcerated when the children were placed in emergency custody.

The dependency-neglect case eventually moved to the termination phase. During the hearing on DHS's petition to terminate Terry's rights to A.T., which was held on 4 December 2018, prior orders in the dependency-neglect case were admitted as evidence. The orders are important to discuss in some detail because they reveal how the circuit court failed to properly address Terry's parental status.

The November 2017 probable-cause order shows that Terry was not present at the hearing, and the court found that "the whereabouts of all three parents are currently unknown." The court ordered Terry to comply with certain conditions, like weekly random drug screens, and it ordered DHS to serve Terry "with a copy of the summons, petition, and notice of the adjudication hearing as required by law."

The January 2018 adjudication order reflects that Terry was not present at the adjudication hearing and states that the "father of [A.T.], Jonathan Terry, is incarcerated." Yet the order also recites that Terry "was served with a copy of the summons, petition, and notice of hearing by warning order" in December 2017. Among other things, the court ordered that Terry was to have no contact with the children, and he was ordered to complete twelve hours of parenting classes. The children's mother was ordered to pay child support; Terry was not. The record also contains an affidavit and proof of service that a summons, a petition for emergency custody, an ex parte dependency-neglect order for emergency custody, and a probable-cause order were served on Terry at this address: "P.O. Box 180, Brickeys, AR 72320." Terry said he never received these papers. (More on this later.)

An April 2018 review order shows that Terry was not at the review hearing either. And a May 2018 review order states that DHS

has had no contact from Jonathan Terry and he is not participating in the case. Jonathan Terry is currently incarcerated at the East Arkansas Region Unit of the Arkansas Department of Corrections [sic]. He does not appear today. He has made no progress towards alleviating or mitigating the causes of the juveniles' removal from the home or completing the court orders and requirements of the case plan.

The order also states that DHS has made reasonable efforts to provide family services to achieve the goal of reunification. But no specific services that were supposedly given to Terry as a parent are listed in the order.

The November 2018 permanency-planning order states that Jonathan Terry was not present at the permanency hearing. In its planning order, the circuit court found that DHS caseworker Eugenia Marks testified that she "has had absolutely no contact" with Jonathan Terry "throughout the length of this case." But "[t]he Court [found] that DHS has made meaningful and reasonable efforts to provide services to the Mother and the fathers to work towards reunification. The Court finds that all three parents in this case are in total noncompliance and all three have failed miserably." The order also states that DHS "has had no contact with Jonathan Terry" and that he was "reportedly" incarcerated.

Turning back to the hearing on DHS's petition to terminate Terry's parental rights, the record contains some evidence that Terry was personally served the December 2018 termination petition at the Arkansas Department of Correction, 10 Prison Circle, Calico Rock, Arkansas. The circuit court did appoint a lawyer for Terry, who appeared for the first time in the case when he attended the termination hearing. At that time, Terry testified during the hearing that he believes he is A.T.'s father. Terry was asked, "Did you sign the paperwork at the hospital when [A.T.] was born?" He replied, "Yes I did.... I believe it was the birth certificate or filing for the birth[.]" Terry also stated that he had never been ordered to pay child support and had never married A.T.'s mother, Christina Tortorello. When the DHS attorney asked, "[H]as any other court ever found you to be the father to [A.T.]?" Terry said, "No."

According to Terry, A.T. had lived with him full time and for her entire life until June 2017 when he was arrested. (A.T. was four years old when Terry was arrested.) He said that he had completed parenting classes and substance-abuse classes while incarcerated to better himself. He also said that DHS never mailed him any copies of any court orders; nor had he received a copy of the petition for dependency-neglect after the children had been brought into DHS custody. After he had been served with the termination petition, he wrote to the court and asked for an attorney. Terry also said that he had remained in contact with DHS, did not know that a no-contact order had issued as to A.T. and J.S., and wrote letters to both children several times. When asked, "Did you know what you were supposed to be doing [in relation to the court orders]?" Terry replied, "I had no idea." He confirmed during his testimony that he had never seen any court order entered in this case.

DHS caseworker Eugenia Marks admitted that she did not try to find out where Terry was incarcerated during the case. And she lacked any record or information showing that DHS had ever sent Terry a copy of any court order or a copy of the case plan. In direct contravention to the court's permanency-planning order that found DHS had provided services to Terry, Marks said that she had no record that any services were ever offered to Terry.

The circuit court terminated Terry's parental rights after finding DHS had sufficiently proved the failure-to-remedy ground and the subsequent-factors ground. See Ark. Code Ann. §§ 9-27-341(b)(3)(B)(i)(a) – (b) , 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017). The court also determined that terminating Terry's rights was in A.T.'s best interest.

Terry appealed.

II. The Circuit Court Erred in Terminating Terry's Rights Because DHS Failed to Prove that He is a Parent, Which the Law Requires

Terminating a parent's rights is an extreme remedy and in derogation of the natural rights of the parents. Earls v. Ark. Dep't of Human Servs. , 2017 Ark. 171, 518 S.W.3d 81. We review these cases de novo. Harjo v. Ark. Dep't of Human Servs. , 2018 Ark. App. 268, 548 S.W.3d 865. To terminate parental rights, the circuit court must find that at least one statutory ground was proved by clear and convincing evidence and that it is in the child's best interest to terminate parental rights. Ark. Code Ann. § 9-27-341(b)(3). A circuit court's findings in these cases are fact intensive, and we will not reverse them unless they are clearly erroneous. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. A finding is clearly erroneous when we are left with a definite and firm conviction that a mistake has been...