Cite as 2017 Ark. App. 230
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-1129
Opinion Delivered: April 12, 2017
DAKOTA CARUTHERS
APPELLANT APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
V. [NO. 28JV-15-94]
ARKANSAS DEPARTMENT OF HUMAN HONORABLE BARBARA HALSEY,
SERVICES AND MINOR CHILD JUDGE
APPELLEES
AFFIRMED
MIKE MURPHY, Judge
Dakota Caruthers appeals the April 4, 2016 order terminating his parental rights to
E.C. He argues the lower court erred in (1) denying his motion to dismiss and (2) finding
termination was in E.C.’s best interest. 1 We affirm.
I. Facts
The Arkansas Department of Human Services (DHS) exercised emergency control
over then three-month-old E.C. on May 18, 2015, upon notice that the child’s parents had
been incarcerated in Missouri on shoplifting charges. A little over a month later, E.C. was
adjudicated dependent-neglected for inadequate supervision, because he lacked an
appropriate caregiver. The case progressed through two review hearings. Caruthers did not
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E.C.’s mother’s parental rights were also terminated as part of the order, but she is
not a party to this appeal.
Cite as 2017 Ark. App. 230
appear for either of the hearings. The court found at both hearings that Caruthers was
partially compliant with the case plan, but he had never completed the drug-and-alcohol
assessment ordered. The court continued both hearings with the goal of reunification.
DHS filed its petition to terminate parental rights on April 4, 2016, alleging the
grounds of failure to remedy, failure to provide material support, subsequent factors, and
aggravated circumstances. The goal of the case was changed to adoption, and the
termination hearing was set for August 4, 2016. Multiple motions to continue ensued, and
each one was accompanied by a written order of the court articulating good cause as to why
the hearing should be moved. The hearing was eventually held on September 9, 2016, 157
days after the filing of the petition.
At the hearing, Holly Johnson, the DHS caseworker, testified that her main concern
with Caruthers was his lack of stable housing. She testified that, while Caruthers did have
housing throughout the case, he had moved all over town during that time, DHS had
sometimes been unable to find him, and DHS had never been able to visit the home, despite
multiple attempts. She also expressed concerns that he had changed jobs multiple times
during the pendency of the case.
Caruthers testified that, if the court allowed, he could take E.C. home with him that
day—he had diapers, wipes, baby food, formula, and a crib—but he also acknowledged that
he did not have stable housing. He explained that he made more money at each subsequent
job he took.
Caruthers admitted that he did not have his own place—he was living with a friend
in an apartment—and that he did “have some trouble just kind of getting through life,
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maintaining a stable place, stable job, and making contact with the probation officers.” He
testified that he had been incarcerated on two more occasions while the case was ongoing.
The court also heard testimony from an adoption specialist.
The court terminated Caruthers’s parental rights, finding that doing so was in E.C.’s
best interest. The court noted that, while incarceration was the initial reason for removal,
after the removal the family was unable to establish stable housing. In its written order, the
court specifically found that
[t]he parents have not demonstrated to the Court that they can provide a safe stable
home for the juvenile. The parents have not maintained consistent contact with
[DHS], maintained stable employment, or demonstrated that they can provide a safe
stable home for the juvenile. The father testified that he had been incarcerated three
times since the juvenile came into Department custody. He further testified that he
now makes $700 a week but that he has not had enough money to establish a safe
stable home for the juvenile.
II. Standard of Review
We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of
Human Servs., 2015 Ark. App. 131, at 4–5, 456 S.W.3d 383, 386. It is DHS’s burden to
prove by clear and convincing evidence that it is in a child’s best interest to terminate
parental rights as well as the existence of at least one statutory ground for termination. Id.
On appeal, the inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly
erroneous when, although there is evidence to support it, the appellate court, on the entire
evidence, is left with a definite and firm conviction that a mistake has been made. Id. We
give a high degree of deference to the circuit court, because it is in a far superior position
to observe the parties before it and judge the credibility of the witnesses. Id.
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III. Motion to Dismiss
Caruthers first argues that the trial court erred in denying his motion to dismiss the
termination-of-parental-rights petition, because it was not heard within ninety days of the
date it was filed. See Ark. Code Ann. § 9-27-341(d) (Repl. 2015) (“The court shall conduct
and complete a termination of parental rights hearing within ninety (90) days from the date
the petition for termination of parental rights is filed unless continued for good cause as
articulated in the written order of the court.”). The trial court denied the motion because
counsel had agreed to the dates of the hearings, good cause was demonstrated for each one,
and there was no objection when the hearings were set. Our standard of review for the
denial of a motion to dismiss is whether the trial court abused its discretion. Newman v. Ark.
Dep’t of Human Servs., 2016 Ark. App. 207, at 8, 489 S.W.3d 186, 192.
On appeal, Caruthers argues that “the trial court originally scheduled the
termination hearing for August 4, 2016, which was beyond the ninety-day time limit,” and
that “[t]here was no ‘good cause’ set forth explaining why the originally scheduled hearing
was set for four months from the date the Department filed its petition.” A careful review
of the record, however, demonstrates that is not the case.
The petition to terminate originally stated a termination hearing was to be held on
May 31, 2016. An “Order of Continuance” was entered on April 14, 2016 “by agreement
of the parties” and “due to a lack of time to hear the docket” resetting a “permanency
planning and termination hearing” for May 26, 2016. On May 26, 2016, another “Order
of Continuance” was entered “by agreement of the parties” resetting the case for August 4,
2016. In that written order, the court found that good cause was shown because Caruthers’s
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attorney was new to the case and needed adequate time to prepare. The hearing was
continued twice more from that August 4, 2016 date, and only one of those was reduced
to a written order, but Caruthers’s initial point that the original hearing was set outside the
90-day limit without good cause is not well taken.
Even if the court did not articulate good cause, Caruthers’s argument fails because,
while the applicable statute does provide that a hearing “shall” be held within ninety days,
a trial court does not lose jurisdiction in this instance. The argument that it does was
expressly addressed and rejected in Hill v. Arkansas Department of Human Services, 2012 Ark.
App. 108, 389 S.W.3d 72. There, we held that, while the applicable statute spoke in
mandatory terms, a loss of jurisdiction did not follow because the General Assembly did not
provide a sanction for an untimely filing and because there was no evidence that such a
result was intended. Id. at 5, 389 S.W.3d at 75.
Furthermore, reversal is not appropriate in the absence of a showing of prejudice
resulting from the delay. Id. Nowhere in Caruthers’s argument does he discuss how he was
harmed in any way by the delay, especially considering one of the continuances was so that
his own attorney could be better prepared for the trial. The trial court did not abuse its
discretion in denying Caruthers’s motion to dismiss.
IV. Best Interest
The termination of parental rights is a two-step process that requires the circuit court
to find that the parent is unfit and that termination is in the best interest of the child. The
first step requires proof of one or more of the statutory grounds for termination. Ark. Code
Ann. § 9-27-341(b)(3)(B). The other step requires consideration of whether the termination
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of parental rights is in the children’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). The
best-interest determination must consider the likelihood that the children will be adopted
and the potential harm caused by returning custody of the children to the parent. Spencer v.
Ark. Dep’t of Human Servs., 2013 Ark. App. 96, at 5–6, 426 S.W.3d 494, 498. The court,
however, does not have to determine that every factor considered be established by clear
and convincing evidence. Id. Instead, after considering all the factors, the evidence must be
clear and convincing that the termination is in the best interest of the child. Id.
Caruthers argues that there was insufficient evidence to demonstrate a risk of
potential harm to E.C. to support the trial court’s best-interest finding. He does not argue
the grounds or the child’s adoptability and therefore waives those issues on appeal.
This court and our supreme court have stated, time and again, that a failure to provide
appropriate housing is contrary to the best interest of children. See, e.g., Selsor v. Ark. Dep’t
of Human Servs., 2017 Ark. App. 182, __S.W.3d__ (collecting cases). A stable home is one
of a child’s most basic needs, and that cannot be ignored. See id.
The determination of potential harm is forward-looking by its very nature. Dowdy v.
Ark. Dep’t of Human Servs., 2009 Ark. App. 180, at 13, 314 S.W.3d 722, 728–29. Caruthers
admitted his housing was “not stable right now” and that “I do think that maybe I have
some trouble just kind of getting through life, maintaining a stable place, stable job, and
making contact with probation officers.” Caruthers was put in jail on three separate
occasions during the pendency of the case. The trial court did not err in looking at
Caruthers’s past instability and concluding that there was nothing to demonstrate that he
would be able to acquire or maintain safe, stable housing in the future.
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Furthermore, the intent of the juvenile code is to provide permanency in a juvenile’s
life, and the evidence must be viewed from the juvenile’s perspective. Ark. Code Ann. § 9-
27-341(a)(3). At the time of the termination hearing, E.C. had been in foster care for
approximately sixteen of his eighteen months of life.
We certainly realize that termination of parental rights is an extreme remedy and is
in derogation of the natural rights of the parents. Linker-Flores v. Ark. Dep’t of Human Servs.,
359 Ark. 131, 137, 194 S.W.3d 739, 744 (2004). However, parental rights should not be
allowed to continue to the detriment of the child’s welfare and best interest. Id. Here, the
evidence demonstrated that returning E.C. to the custody of his father was not in the child’s
best interest.
Affirmed.
GLADWIN and HARRISON, JJ., agree.
Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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