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ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-214
CALVIN McHENRY Opinion Delivered September 3, 2014
APPELLANT
APPEAL FROM THE POINSETT
V. COUNTY CIRCUIT COURT
[NO. JV-11-62]
ARKANSAS DEPARTMENT OF HONORABLE RALPH WILSON, JR.,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
DAVID M. GLOVER, Judge
Calvin McHenry appeals from the December 17, 2013 order terminating reunification
services for him in connection with his three minor children: A.M., a female (D.O.B. 7-26-
2004), C.M., a male (D.O.B. 6-29-2005), and B.M., a female (D.O.B. 2-3-2009). The order
did not terminate his parental rights, but, noting that the termination of reunification services
often leads to the termination of parental rights, a Rule 54(b) certification was included in the
order pursuant to Rule 6-9(a)(1)(B) of the Rules of the Arkansas Supreme Court and Court
of Appeals, certifying that the December 17 order constituted “entry of final judgment as to
the finding that the minor children have been subjected to aggravated circumstances in that
there is little likelihood that further services to the family will result in successful reunification
with Calvin McHenry.” Calvin raises two interrelated points of appeal, challenging the
sufficiency of the evidence supporting the trial court’s decision: 1) there was not sufficient
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evidence to prove the statutory ground for termination of services relied on by the trial court,
and 2) the trial court erred when it denied his second oral motion to dismiss because the
Department had not met its burden of proof. We affirm.
Procedural Background
Calvin and Suzann McHenry are the birth parents of the three minor children involved
in this matter. The children were initially removed and placed in the custody of the paternal
grandparents, Albert and Joyce McHenry, because Suzann burned A.M. “with [a] cigarette
or cigarettes over the Memorial Day weekend in May of 2009.” Reunification was the case
goal for the parents, but guardianship of the children continued with the grandparents. The
grandparents were eventually made permanent guardians by order dated January 12, 2010,
Suzann was ordered to have no contact with the children, and the court case was closed.
On July 11, 2011, the Arkansas Department of Human Services, (DHS) filed a new
petition for emergency custody and dependency-neglect. The supporting affidavit basically
reported facts supporting environmental neglect: roaches all over the place; a strong smell of
urine and feces; trash everywhere; a grandparent’s report that one of the children was
responsible for spreading her own feces all over the floor; that one of the three bedrooms was
not being used because the grandmother’s sister and brother-in-law were shooting at them
and the children; and that the other two bedrooms could not be entered because they were
“filled all the way to the door entrance.” The children were taken into emergency custody
and subsequently adjudicated dependent-neglected. The Court ordered reunification with
the grandparents as the case goal, but the children remained in DHS custody. The goal of the
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case was eventually changed to adoption, and DHS was authorized to pursue termination of
parental rights by order dated June 13, 2012, but not filed until November 16, 2012.
Following a December 5, 2012 review hearing, the trial court ordered DHS to refile the
petition for termination of parental rights, and the children remained in DHS custody.
On May 15, 2013, the trial court held a hearing for further disposition and review.
In its June 7, 2013 order, the trial court reported that Suzann McHenry’s parental rights had
been terminated on May 15, 2013, and an appeal had not yet been filed; that the
grandparents’ guardianship of the children had been terminated by order entered on May 15,
2013; that return of custody to the remaining parent, Calvin McHenry, was contrary to the
children’s welfare; and that the goal of the case was to be adoption. The order went on to
provide, however, that DHS was to develop an appropriate case plan for Calvin and to
conduct a staffing for him. Calvin was ordered to attend parenting classes, view the “ticking-
clock” video, remain drug free and undergo random tests, obtain and maintain stable
employment, obtain and maintain stable and safe housing, and obtain a psychological
assessment and follow its recommendations.
On July 22, 2013, another hearing was held for further disposition and review. The
court noted that time for Suzann to appeal the termination of her parental rights had run; that
the grandparents’ appeal was pending; and that DHS had filed in open court on that date a
motion to terminate reunification services and a notice of intent to use child hearsay. The
children remained in DHS custody. The trial court ordered DHS to develop an appropriate
case plan for Calvin and to conduct a staffing for him within thirty days; to obtain a certified
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copy of the full record of Calvin’s criminal conviction and submit it to the court; to refer
Calvin to CSE; and to obtain a criminal background check and a child-maltreatment registry
check on Calvin. The court ordered Calvin to comply with the case plan and to do all of the
previously ordered things if he had not already done so. Calvin’s visitation was suspended,
and a hearing was set for September 25, 2013, on DHS’s motion for no-reunification services.
On October 9 and November 20, 2013, a hearing on the DHS motion to terminate
reunification services was held. On December 17, 2013, the trial court entered its order
terminating reunification services. It is from this order that Calvin brings this appeal. The
order granted only in part DHS’s motion to terminate services, but it found that doing so was
in the children’s best interest and explained the rationale. The order provides in pertinent
part:
a. The Court finds by clear and convincing evidence that the children have been
subjected to aggravated circumstances in that there is little likelihood that
services to the family will result in successful reunification. Ark. Code Ann. §
9-27-365(c)(2)(iv). The Court adopts in full Paragraph 3(c) of the
Department’s Motion to Terminate Reunification Services, with the exception
of the last sentence. Specifically, the juveniles have been out of the custody of
the father, Calvin McHenry, since approximately 2009, when the juveniles
were removed from the household of Calvin and Suzann McHenry due to the
physical abuse of the mother, Suzann McHenry and adjudicated
Dependent/Neglected. As part of that case the juveniles were placed in the
custody of the grandparents Albert and Joyce McHenry. The Juveniles were
removed from the custody of Albert and Joyce McHenry on July 7, 2011, after
allegations of environmental neglect, and were again adjudicated
dependent/neglected. Although he was not explicitly included in the case plan,
during the 21 month duration of that case, Calvin McHenry consistently
attended hearings but did not request custody or make any significant attempts
to regain custody of the juveniles up to the point where the Court terminated
the rights of the custodians, Albert and Joyce McHenry, and the mother Suzann
McHenry.
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The trial court granted Calvin’s motion to dismiss as to the allegations contained in
Paragraph 3(b)(i) and 3(b)(ii) of DHS’s motion to terminate services, which pertained,
respectively, to sexual abuse and the fact that Calvin was a registered sex offender, and denied
DHS’s motion to terminate services on those grounds. The trial court ordered the immediate
cessation of all reunification services and found that the children were in need of DHS
services, that return of custody to Calvin was contrary to their welfare, and that continuation
of custody in DHS was in the children’s best interest and necessary to the protection of their
health and safety. The goal of the case remained adoption.
Summary of Testimony from Hearing on Termination of Services
Tosha Dixon, a family-service worker, testified at the hearing. She explained that
“until approximately this summer,” Calvin had never specifically contacted DHS to request
services; she did not believe he was sent notices for staffings before she was the case worker;
she did send him staffing notices; and if he was present at the court hearings, he had the
opportunity to hear how the case was going. She testified about the services offered and
completed by Calvin, and also his compliance with things he was ordered to do.
She testified the children were doing well in their placements and the foster parents had
expressed an intent to adopt. She explained the circumstances under which the children were
removed from Suzann’s and Calvin’s custody in 2009, which involved Suzann’s physical abuse
of A.M., and stated the children had been out of Calvin’s custody since July 7, 2009—almost
four years—and during that time, Calvin had not made any significant attempts to request
custody of his children. She expressed her opinion it was not likely further reunification
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services would succeed in returning custody to Calvin, and she based that belief in part on the
fact that he relied on his parents to basically do what was best for his children; did not voice
to DHS that he wanted to get his children back or ask what he needed to do to get them
back; and she believed he simply turned over legal guardianship to his parents. She
recommended the children remain in DHS custody and adoption be pursued.
On cross-examination, she acknowledged that previous case plans had not addressed
Calvin as the father until she became the case worker; he was not provided any services other
than visitation; but “he had ample opportunity to stand up in Court while he was here.” She
acknowledged that “once I put him in the case plans and started providing the services to the
Court order, he became very compliant. He’s done everything I’ve asked him to do.” She
also acknowledged the psychological evaluation recommended that DCFS continue to work
with Calvin. She acknowledged the investigations regarding Calvin for sexual abuse of A.M.
had been concluded, and the allegations were unsubstantiated. She acknowledged Calvin had
attended all of the hearings in the case.
Gracie Gonner, licensed psychological examiner, testified about her treatment of A.M.
Her testimony was merely proffered, was never heard by the trial court, and the trial court
basically ruled in favor of Calvin on the sexual-abuse/inappropriate-comments grounds for
termination of services. Consequently, it is not necessary for purposes of this appeal to set out
her proffered testimony.
Calvin testified he had attended the hearings; he realized his parents were not
complying with the case plan and that the course of the hearings was taking a turn; but he was
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not allowed an equal opportunity to express his own opinions at the hearings because the cases
did not pertain to him. He explained his status as a registered sex offender, but because the
trial court did not base its decision on that status, it is unnecessary to recount that testimony
here.
Calvin’s attorney moved to dismiss. The trial court deferred ruling on the motion and
continued the hearing until issues regarding the proffered testimony about the alleged sexual
abuse could be addressed and decided.
The hearing reconvened on November 20, 2013. At the outset, the trial court
reviewed the circumstances under which the earlier hearing had been continued and the
decisions that had been made in the interim. Briefly, the court explained it had sustained
Calvin’s objection to Gonner’s testimony about what A.M. had told her because there was
no hearsay exception that covered it, but the court had given DHS a window either to have
A.M. testify live or to have DHS try to establish that A.M. was unavailable under Rule
804(b)(6) due to infirmity or incompetence or some other reason. DHS opted to have A.M.
testify and requested a more informal setting, which the trial court accommodated. A.M.
testified, but because her testimony played no role in the ultimate decision, we do not include
it here.
Calvin’s attorney then renewed his motion to dismiss DHS’s motion to terminate
reunification services, contending DHS had not met its burden because “the only testimony
they have is that of the child, A.M., and that . . . testimony [was] not credible.” The trial
court heard arguments from all parties on the motion to dismiss. The trial court’s ultimate
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decision has previously been set out in detail.
Points of Appeal
I.
Both of Calvin’s points of appeal challenge the sufficiency of the evidence. For his first
point, he contends that the trial court erred in finding there was sufficient evidence to
terminate reunification services to him on the basis there was little likelihood further services
would result in successful reunification. We disagree.
Arkansas Code Annotated section 9-27-365(c) (Supp. 2013) provides:
(c) An order terminating reunification services on a party and ending the
Department of Human Services’ duty to provide services to a party shall be based on
a finding of clear and convincing evidence that:
(1) The termination of reunification services is in the child’s best interest; and
(2) One (1) or more of the following grounds exist:
(A) A circuit court has determined that the parent has subjected the child to
aggravated circumstances that include:
....
(iv) A determination by a circuit judge that there is little likelihood that services
to the family will result in successful reunification[.]
Calvin challenges only the trial court’s aggravated-circumstances finding, not the best-interest
finding. Specifically, the trial court found:
[T]he juveniles have been out of the custody of the father, Calvin McHenry, since
approximately 2009, when the juveniles were removed from the household of Calvin
and Suzann McHenry due to the physical abuse of the mother, Suzann McHenry and
adjudicated Dependent/Neglected. As part of that case the juveniles were placed in
the custody of the grandparents Albert and Joyce McHenry. The Juveniles were
removed from the custody of Albert and Joyce McHenry on July 7, 2011 after
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allegations of environmental neglect, and were again adjudicated dependent/neglected.
Although he was not explicitly included in the case plan, during the 21 month
duration of that case, Calvin McHenry consistently attended hearings but did not
request custody or make any significant attempts to regain custody of the juveniles up
to the point where the Court terminated the rights of the custodians, Albert and Joyce
McHenry, and the mother Suzann McHenry.
An action to terminate reunification services must be based on a finding of aggravated
circumstances by clear and convincing evidence. Ark. Code Ann. § 9-27-325(h)(2)(C) (Supp.
2013). In reviewing the trial court’s evaluation of the evidence, we will not reverse unless
the court’s finding of clear and convincing evidence is clearly erroneous. Chase v. Arkansas
Dep’t of Human Servs., 86 Ark. App. 237, 184 S.W.3d 453 (2004). In resolving the clearly
erroneous question, we must give due regard to the opportunity of the trial court to judge the
credibility of witnesses, and in matters involving the welfare of young children, we give great
weight to the trial judge’s personal observations. Id.
Calvin acknowledges that the children were placed with his parents in 2009 due to
their mother’s physical abuse, and then removed from the grandparents’ custody in 2011
(because of environmental neglect in the grandparents’ home), with the goal being changed
to adoption at the permanency-planning hearing on June 13, 2012. He argues, however, that
DHS was never ordered to develop an appropriate case plan for him or to conduct a case-plan
staffing for him or to provide reunification services for him until June 7, 2013. He also notes
that although he attended every hearing, he was not appointed counsel and he did not have
any professional assistance to represent his interests until July 22, 2013.
He further argues that just four months after being ordered to do certain things, the
case worker testified he had completed all of the things he had been ordered to do and had
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complied with everything DHS had asked of him. Even so, he notes his visitation was
suspended pending an investigation on an allegation that was subsequently found to be
unsubstantiated. He refutes the assertion he never requested custody of the children and never
took the opportunity to stand up in court by arguing he was never allowed an equal
opportunity to express his own opinions and was not advised of any services DHS could offer
him at that time. He claims he did attempt to speak up in court and ask for custody but was
denied the chance to speak because the case did not pertain to him, only his parents, who
were the legal guardians at the time.
He argues that he is a truck driver by trade and that he could not be expected to know
how to pursue or express his rights, but that he appeared at every hearing and attended
visitation with his children. He states that his lack of “standing up in court” or requesting
custody of his children was misconstrued and cited as a deficiency of such significance that it
was the primary reason cited for terminating reunification services. He contends that it was
his cooperation with DHS and the case plan and his deference to their authority and the
court’s authority that resulted in his lack of aggressive action.
He finally contends case law does not provide an example where custodians were
offered services for almost two years while a parent was excluded, and then that parent is
joined into the case plan just days before the goal of the case is changed to adoption. He
urges that by terminating reunification services just four months into the parent’s inclusion
in those services is the same as fast-tracking termination of his parental rights.
While some of Calvin’s concerns are well-taken, we are simply not convinced the trial
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court clearly erred in concluding further reunification services would not result in a successful
reunification. The children had been out of his care and custody for more than four years,
and, with respect to each of the three children, that period of time was substantial. Moreover,
while DHS was not without fault in its handling of Calvin’s role in this case, we cannot
absolve him of responsibility. There was a period of time after the first case had been closed
and before the children were taken from his parents when Calvin could have pursued avenues
to regain custody of his children, but he did not—content for his parents to care for them.
Once the case resulting in this appeal began, Calvin was not new to the system. He
acknowledged not only attending the hearings but also being aware his parents were not
following the case plan and the status of things was changing. Even if we were to accept his
position that he tried to speak up in court and express his views, that does not explain why
he did not pursue possible avenues for the return of his children with DHS personnel outside
of court. Thus, while we agree he cannot be held accountable for knowing all of the “ins and
outs” of DHS proceedings, it is clear he could have demonstrated a stronger interest in
shifting custody to himself and finding out what he needed to do to make that happen. His
attempts to engage in that effort came too late.
II.
For his remaining point of appeal, Calvin contends the trial court erred in denying his
motion to dismiss DHS’s motion to terminate reunification services. He contends the trial
court erred when it did not act on his oral motion to dismiss after A.M.’s testimony; that
Gonner’s proffered testimony concerning what she had been told by A.M. had been ruled
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hearsay and the hearing reconvened to hear testimony from the child; and that the trial court
subsequently ruled the child’s testimony was not credible. Calvin’s argument might have
merit if the trial court had granted DHS’s motion to terminate services based on the motion’s
assertions of aggravated circumstances in the form of alleged sexual abuse by Calvin and/or
his status as a registered sex offender, but the trial court did not. Rather, it specifically granted
Calvin’s motion for a directed verdict with respect to those allegations, explaining:
All right, based on the evidence heard and considered back on October 9, 2013,
and based on the evidence heard and considered today, judging the credibility of
witnesses, reasonable inferences and other factors the Court’s required to consider in
exercising the Court’s discretion, the Court partially grants Mr. Dunigan’s motion for a
directed verdict as to Paragraphs (3)(b)(1) and (3)(b)(2)(1). [Paragraph 3(b) of DHS’s motion
to terminate reunification services alleged aggravated circumstances based on Calvin’s
alleged sexual abuse and Calvin’s status as a registered sex offender.]
The Court really can’t reconcile the testimony of this eight-year-old regarding
the time frames and what happened, you know, it very well could have happened but
I just can’t find it even by a preponderance of the evidence and the Department’s
required to prove no reunification services by clear and convincing evidence.
Likewise, even if Mr. McHenry is a registered sex offender he explained the
circumstances in that case, with that explanation in place the Court doesn’t find that,
just being a registered sex offender under Arkansas law, in this particular circumstance,
precludes Mr. McHenry from not having reunification services to his children, on that
specific ground.
(Emphasis added.) The trial court then went on to deny Calvin’s motion for directed verdict
regarding the little-likelihood-of-success ground asserted in Paragraph 3(c) of DHS’s motion
to terminate services. Even so, the trial court specifically rejected the last sentence of
Paragraph 3, subsection (c), explaining, “I’m looking at your Subsection C, aggravated
circumstances, little likelihood, and the last sentence says, ‘Moreover, since Calvin McHenry
has been included in the case plan he has not been compliant with that case plan.’ Well, Ms.
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Tosha Dixon’s testimony directly controverted that, I mean, according to Ms. Dixon’s
testimony he’s complied with about everything it sounds like.” The trial court then
specifically eliminated the allegation that Calvin was not compliant with the case plan. The
trial court’s decision to grant DHS’s motion to terminate services was thus based solely on its
finding that there was little likelihood that further services would result in a successful
reunification, and, even with respect to that ground for termination of services, the trial court
rejected the allegation that Calvin had not been compliant with the case plan. Accordingly,
the trial court ruled in Calvin’s favor on the challenged items concerning allegations of sexual
abuse, his status as a registered sex offender, and his compliance with the case plan. So, as a
separate challenge to the sufficiency of the evidence, we find no merit in this point of appeal.
Affirmed.
WALMSLEY and VAUGHT, JJ., agree.
Elizabeth J. Finocchi, Arkansas Public Defender Commission, for appellant.
Tabitha B. McNulty, County Legal Operations; and Chrestman Group, PLLC, by: Keith
L. Chrestman, for appellees.
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