Bell v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 113

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-904

OPINION DELIVERED FEBRUARY 24, 2016
KRISTIN ELIZABETH BELL
APPELLANT APPEAL FROM THE YELL
COUNTY CIRCUIT COURT,
V. SOUTHERN DISTRICT
[NO. JV-2013-12]

ARKANSAS DEPARTMENT OF HONORABLE TERRY SULLIVAN,
HUMAN SERVICES and MINOR JUDGE
CHILD
APPELLEES AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Appellant Kristin Bell’s parental rights to her two-year-old daughter, A.M., were

terminated by the Yell County Circuit Court. Kristin argues that the circuit court’s order

should be reversed because appellee Arkansas Department of Human Services (ADHS) failed

to properly serve the petition for termination of parental rights (TPR) on her as required

by Arkansas Code Annotated section 9-27-341(b)(2)(A) (Repl. 2015). Kristin also argues

for reversal because the evidence was insufficient to prove the statutory grounds pled in

support of TPR or that it was in A.M.’s best interest to terminate her parental rights. We

affirm.

As to her first argument, we hold that Kristin waived any objection to service

through her appearance by her attorney at the termination hearing and she failed to preserve

the issue with the circuit court. See, e.g., Ark. Dep’t of Health & Human Servs. v. Jones, 97

Ark. App. 267, 248 S.W.3d 507 (2007); Myers v. Ark. Dep’t of Human Servs., 91 Ark. App.

53, 208 S.W.3d 241 (2005). Arkansas appellate courts have repeatedly stated that the failure
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to raise an objection to service issues at the trial level precludes review of the issue on appeal.

Blackerby v. Ark. Dep’t of Human Servs., 2009 Ark. App. 858, 373 S.W.3d 375. Kristin

acknowledges that she failed to raise any objection to service of process and participated in

the termination hearing through the full representation of her attorney. Kristin’s admitted

failure to raise this issue below therefore bars any review of this issue on appeal.

An order terminating parental rights must be based on clear and convincing evidence,

Smithee v. Arkansas Department of Human Services, 2015 Ark. App. 506, 471 S.W.3d 227, and

the circuit court’s findings will not be reversed unless they are 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; see also Strickland v.

Ark. Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008). The appellate

courts review TPR orders de novo. Samuels v. Ark. Dep’t of Human Servs., 2014 Ark. App.

527, 443 S.W.3d 599.

Termination of parental rights is an extreme remedy and in derogation of the natural

rights of parents; however, parental rights will not be enforced to the detriment or

destruction of the health and well-being of the child. Smithee, supra. In order to terminate

parental rights, the circuit court must determine by clear and convincing evidence that such

termination is in the child’s best interest, including consideration of the likelihood that the

juvenile will be adopted and the potential harm caused by returning custody of the child to

the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). One of the statutory grounds for

termination, found in Ark. Code Ann. § 9-27-341(b)(3)(B), must also be proved by clear

and convincing evidence.

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In the instant case, the circuit court granted ADHS’s TPR petition based on two

grounds: subsequent factors, codified at section 9-27-341(b)(3)(B)(vii)(a), and aggravated

circumstances, codified at section 9-27-341(b)(3)(B)(ix). Kristin claims that the evidence

supporting these two grounds was insufficient and, thus, it was error for the circuit court to

base its termination order on either of these grounds. The two grounds applicable are listed

in section 9-27-341(b)(3)(B) as follows:

(vii)(a) That other factors or issues arose subsequent to the filing of the original
petition for dependency-neglect that demonstrate that placement of the juvenile in
the custody of the parent is contrary to the juvenile’s health, safety, or welfare and
that, despite the offer of appropriate family services, the parent has manifested the
incapacity or indifference to remedy the subsequent issues or factors or rehabilitate
the parent’s circumstances that prevent the placement of the juvenile in the custody
of the parent.
....

(ix)(a) The parent is found by a court of competent jurisdiction to:
....

(3 )(A) Have subjected any juvenile to aggravated circumstances.

(B) “Aggravated circumstances” means:

(i) . . . a determination has been or is made by a judge that there is little likelihood

that services to the family will result in successful reunification . . . .

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) & (ix).

We need not address all grounds because ADHS only had to prove one statutory

ground to support TPR. The statutory ground on which we affirm the TPR order is the

“subsequent factors” ground, pursuant to section 9–27–341(b)(3)(B)(vii)(a ).

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The subsequent-factor ground for termination consists of multiple elements. First,

this ground requires that subsequent issues arose after the original petition was filed, which

demonstrate that it is contrary to the juvenile’s health, safety, or welfare to place the juvenile

with the parent. Second, appropriate family services must have been offered. Third, there

must be evidence that the parent is indifferent or lacks the capacity to remedy the subsequent

factors or rehabilitate the parent’s circumstances that prevent placement of the juvenile with

that parent. Finally, Kristin argues that it is implicit that the subsequent factors arose at a

time when the juvenile was not in the custody of the parent, as demonstrated by the

language that “placement of the juvenile in the custody of the parent is contrary to the

juvenile’s health, safety, or welfare,” as well as the language at the conclusion of this

subsection that the failure to remedy the subsequent factors “prevents the placement of the

juvenile in the custody of the parent.”

In seeking to terminate Kristin’s parental rights, ADHS alleged the following

subsequent factors: (1) Kristin’s mental instability; (2) the volatile relationship between

Kristin and Billy Minnie, who is A.M.’s father, 1 their relatives, and law enforcement; (3)

Kristin’s positive drug tests; (4) Kristin’s leaving the state; (5) Kristin’s subsequent

incarceration in Kansas; and (6) delays in A.M.’s development. Of these factors, Kristin

argues that the only two that can be considered “subsequent factors” are her incarceration

and delays in A.M.’s development. She notes that the other issues alleged by ADHS occurred

during the time that Kristin successfully maintained custody of A.M. Although Kristin

1 Billy Minnie is not a party to this appeal.

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acknowledges that evidence was presented to confirm the existence throughout the case of

her mental-health issues, her on-again, off-again relationship with Billy, and legal troubles

that caused Kristin to be placed on probation, she notes that none of those issues ever caused

the circuit court enough concern that it felt A.M.’s health, safety, or welfare was in jeopardy,

as evidenced by the circuit court maintaining A.M.’s custody with Kristin. It was not until

Kristin left the state that the circuit court felt compelled to change custody.

As for the two issues that Kristin claims can be considered actual subsequent factors,

(1) her incarceration in Kansas, and (2) A.M.’s developmental delays, she claims that ADHS

failed to offer any proof that Kristin was unwilling or unable to remedy those circumstances

that prevented the return of A.M. to her custody. Kristin acknowledges that ADHS has

been involved with the family since May 27, 2013, and has offered services to the family,

but she claims that the record demonstrates that Kristin benefited from those services and

was able to successfully maintain custody of A.M. for over a year.

Kristin argues that, following her incarceration, both ADHS and the circuit court

were unwilling to work with, or provide any further services to, Kristin to help remedy the

cause of removal, as evidenced by the circuit court’s orders entered following the review

and permanency-planning hearings held, respectively, on January 16, 2015, and March 20,

2015. She points out that drug issues did not cause the subsequent removal of A.M. from

her custody—as shown by both orders simply instructing the parents to refrain from

possessing or using controlled substances, to submit to random drug screens, to complete a

drug-and-alcohol assessment, and to complete a drug-treatment program—there was no

order for services or instructions to Kristin related to the subsequent removal of A.M.

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Additionally, Kristin argues that, in the absence of an order terminating services, her

incarceration did not negate the circuit court’s duty to order, and ADHS’s duty to provide,

appropriate services pursuant to section 9-27-341(B)(3)(B)(vii)(a). Where no such services

were offered, Kristin urges that there can be no evidence to sufficiently demonstrate that

she manifested an indifference or incapacity to remedy the subsequent factors that prevented

the placement of A.M. with her.

Kristin does not appear to challenge the existence of sufficient evidence supporting

the circuit court’s findings; rather, she argues that the circuit court erred in considering

certain evidence and claims that the remaining evidence was insufficient to support TPR.

Kristin specifically admits that her mental-health issues, family turmoil, and criminal issues

represented a reasonable summary of the issues facing her, and fails to challenge the existence

of any facts related to those issues. ADHS argues that Kristin’s failure (1) to challenge the

existence of the facts described in the evidence presented to the circuit court, or (2) to assert

that the evidence did not satisfy the elements of the statutory grounds abandons any

challenge to those facts on appeal. Contreras v. Ark. Dep’t of Human Servs., 2015 Ark. App.

604, 474 S.W.3d 510; Benedict v. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305

(2006).

Kristin’s argument is that the circuit court erred in considering evidence about issues

and facts that arose or occurred while A.M. was in Kristin’s custody from September 2013

to December 2014. Kristin argues that “implicit” in the subsequent-factors ground is that

the subsequent factors arose at a time when A.M. was not in her custody. We hold that her

argument is inconsistent with Arkansas law. First, there is no limitation in the subsequent-

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factors ground that a subsequent factor cannot be factor that arose while a parent had custody

of the juvenile during the dependency-neglect case. Ark. Code Ann. § 9-27-

341(b)(3)(B)(vii). The only temporal limitation provided is that the factor must arise

“subsequent to the filing of the original petition for dependency-neglect,” which all of the

subsequent factors relied on by the circuit court satisfied because they occurred after ADHS’s

initial petition was filed on May 31, 2013. Kristin improperly attempts to add a new

requirement into an unambiguous law that would preclude consideration of any subsequent

changes in custody or the reasons for those changes in TPR hearings. Further, we note that

Kristin’s list of requirements that the subsequent factors must demonstrate that placement

with her is contrary to A.M.’s health, safety, or welfare, and that her failure to remedy the

subsequent factor(s) must prevent placement of A.M. with her, are elements that

contemplate that A.M. has been removed prior to termination. That said, there is no

limitation on the circuit court’s consideration of factors that caused a removal after the

initiation of the proceeding. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii).

Kristin’s argument must also fail to the extent that Kristin’s assertion challenges

ADHS’s efforts to provide reunification services because Kristin failed to challenge any of

the circuit court’s reasonable efforts findings in this case, including the January 16, 2015

review hearing and the March 20, 2015 permanency planning hearing—each of which

occurred after A.M.’s second removal from Kristin’s custody in October 2014. Anderson v.

Ark. Dep’t of Human Servs., 2011 Ark. App. 522, 385 S.W.3d 367.

Affirmed.

VIRDEN and GRUBER, JJ., agree.

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Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.
Jerald A. Sharum, County Legal Operations, for appellee.

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

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