Cite as 2013 Ark. App. 711
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-644
ALBERT LEE McHENRY and JOYCE Opinion Delivered December 4, 2013
C. McHENRY
APPELLANTS APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT
V. [NO. JV-11-62]
HONORABLE RALPH WILSON, JR.,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILDREN AFFIRMED
APPELLEES
DAVID M. GLOVER, Judge
Appellants Albert and Joyce McHenry are the paternal grandparents of A.M. (born 7-
26-04), C.M. (born 6-29-05), and B.M. (born 2-3-09). The children were removed from
the custody of their parents, Calvin and Suzann McHenry, in 2009 and placed with the
paternal grandparents. This appeal involves the subsequent termination of appellants’
custodianship of their grandchildren. Their arguments are not preserved for appeal.
The Process
On July 11, 2011, the Department of Human Services (DHS) filed a petition for
emergency custody and dependency-neglect, alleging that DHS’s removal of the children
from appellants was necessary to protect the children’s health, safety, and well-being from
immediate danger. Specifically, DHS alleged extreme environmental neglect—roaches falling
from the ceiling of appellants’ house, trash scattered over the floors, the floors matted with
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dirt, a strong smell of urine and feces throughout the house, and an inability to enter rooms
due to items being strewn from wall to wall. An ex parte order granting DHS emergency
custody was entered the same day, and a probable-cause order continuing custody of the
children with DHS was filed on July 25, 2011. By order filed on September 29, 2011, the
children were adjudicated dependent-neglected due to environmental neglect. Review orders
were filed on February 22, 2012, and May 10, 2012, each finding that return of the children
to appellants’ custody was contrary to the children’s best interests and each continuing custody
with DHS. A permanency-planning hearing was held on June 13, 2012. By order filed
November 16, 2012, the trial court found that it was in the children’s best interest to remain
in DHS custody and that the appropriate permanency plan for the children was to authorize
a plan for adoption and to file a petition for termination of parental rights.
DHS filed a petition to terminate Calvin and Suzann’s parental rights on July 17, 2012;
the petition also included appellants as defendants for termination of parental rights in their
capacity as legal custodians. A hearing on this petition was held on March 27, 2013. When
DHS rested, appellants’ attorney stated that he was not making a motion for a directed verdict
because it was his understanding the termination statute only applied to the termination of
parental rights and did not, in and of itself, create a cause of action to terminate grandparental
rights. DHS’s response was that it desired to dismiss appellants from the case because the
children had been removed from appellants’ home more than twelve months ago, the
conditions that caused removal from appellants’ home had not been remedied, and there was
not any proof that conditions could improve if appellants were given more time. DHS
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asserted that the trial court should find it was not in the children’s best interest to be returned
to appellants and that appellants should be dismissed from the case. The trial court questioned
if DHS was trying to dismiss appellants’ custodial rights, and DHS stated that it was,
prompting the trial court to then request DHS to brief the issue of whether the court could
dismiss appellants’ custodial rights.
On April 15, 2013, DHS filed a motion to terminate appellants’ custodianship and to
dismiss them as parties to the case or, alternatively, to terminate reunification services to
appellants. A hearing on this motion was held on April 29, 2013; when DHS rested,
appellants’ counsel moved for a directed verdict, arguing that there was not sufficient
evidence to terminate appellants’ custodianship, that it was not in the children’s best interest
to do so, and that there had not been a material change in circumstance proven. This motion
was denied; when it was renewed at the close of appellants’ case, it was again denied. The
trial court then granted DHS’s motion to terminate appellants’ custodianship. An order to
this effect was filed on May 15, 2013, and appellants filed their notice of appeal the same day.1
The Appeal
On appeal, appellants abandon any sufficiency argument as to the trial court’s best-
interest or material-change findings. Instead, they argue that the trial court terminated a
custodianship, but continued to interchange guardianship and custodianship when those two
things are different creatures. They also argue that documentation was never presented to the
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Suzann’s parental rights were also terminated at this hearing, but DHS withdrew its
petition to terminate Calvin’s parental rights. The trial court attached a Rule 54(b) certificate
to the order due to the fact that the case is ongoing with respect to Calvin’s parental rights.
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court to prove appellants had legal custody or legal guardianship of the children. Neither of
these arguments were made below; therefore, they are not preserved for appeal. Bank of the
Ozarks v. Jim Wood Co., 2010 Ark. App. 693, 379 S.W.3d 548.
Even if appellants’ arguments had been preserved, they would still fail. They argue that
when none of the parties to the case are clear as to the status of appellants, there is no accurate
way to apply the law. Here, though the parties and their counsel used
guardianship/custodianship interchangeably, the trial court did not. The order appealed from
is styled “Order Terminating the Custodianship of Albert and Joyce McHenry,” and within
that order, the trial court found that because appellants are not the parents, they had no
parental rights to be terminated, and “their status in this matter is that of legal custodians of
the juveniles.” The trial court further found by clear and convincing evidence that the
children’s removal from appellants’ home and the children’s adjudication as dependent-
neglected “constitute[d] a material change in circumstances, and that it [was] not in the best
interests of the children that Albert and Joyce McHenry continue as custodians.” The trial
court further found that reunification services, including visitation, were not in the children’s
best interest and should be terminated; it also found appellants’ testimony not credible. The
trial court never treated appellants’ status as that of guardianship—it clearly was always
considered to be a custodianship.
Affirmed.
HIXSON and WOOD, JJ., agree.
Janet Lawrence, for appellants.
Tabitha Baertels McNulty, Office of Policy and Legal Servs., and Chrestman Group,
PLLC, by: Keith Chrestman, for appellees.
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