Rogers v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 469

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-295

Opinion Delivered September 20, 2017

BURT ROGERS APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66FJV-13-582]

HONORABLE LEIGH ZUERKER,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
APPELLEES AFFIRMED

LARRY D. VAUGHT, Judge

Burt Rogers appeals the Sebastian County Circuit Court’s order terminating his parental

rights to his daughter, A.B. (born July 25, 2007). His sole challenge to the termination order is

that there was insufficient evidence of the statutory ground supporting the termination. We

affirm.

A.B.’s case originated with a referral to the child-abuse hotline due to concerns a

hospital had regarding the care A.B.’s mother, Markita Bell, was providing to A.B.’s newborn

sister, L.B. Thereafter, the Arkansas Department of Human Services (DHS) removed L.B.

from the custody of Bell and filed a petition for emergency custody and dependency neglect

on October 7, 2013. DHS filed an amended petition for emergency custody and dependency-

neglect on November 12, 2013, adding A.B. as a dependent juvenile; however, A.B. was not

removed from Bell’s custody. Quincy Johnson was listed as A.B.’s putative father.
Cite as 2017 Ark. App. 469

On December 10, 2013, L.B. was adjudicated dependent-neglected at the adjudication

hearing, and A.B. was deemed dependent-neglected by virtue of L.B.’s adjudication. L.B.

remained in foster care, and A.B. remained in Bell’s custody as of the review hearing on

February 11, 2014, the permanency-planning hearing on August 12, 2014, and the fifteen-

month permanency-planning hearing on November 18, 2014. On January 29, 2015, DHS filed

a petition for the termination of parental rights against Bell as to L.B. only, and Bell’s parental

rights as to L.B. were involuntarily terminated.

On February 12, 2015, DHS received a hotline call alleging that Bell was engaged in

prostitution and using illegal drugs while A.B. was with Bell. DHS exercised a seventy-two-

hour hold on A.B. on February 23, 2015, and on February 26, 2015, DHS filed a petition for

emergency custody and dependency-neglect regarding A.B. An order was entered on April 3,

2015, finding probable cause existed for A.B. to remain in foster care. An adjudication order

finding that A.B. was dependent-neglected was entered on May 14, 2015. Johnson was noted

as A.B.’s putative father in these orders.

Another review-hearing order was entered on December 11, 2015. Johnson was listed

as A.B.’s putative father, and the circuit court noted Rogers’s attendance at hearings on

November 10 and 30, 2015. Rogers submitted to DNA paternity testing on January 27, 2016.

The following day, Rogers was arrested and was subsequently sentenced to three years in the

Arkansas Department of Correction.

A permanency-planning hearing was held on February 16, 2016, at which time the

circuit court set a concurrent goal of adoption. DHS filed a petition on April 26, 2016, seeking

to terminate the parental rights of Bell and Johnson to A.B. Rogers was not mentioned. A

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fifteen-month review order was entered on June 23, 2016, in which the court found that, based

on DNA testing, Rogers was A.B.’s legal father. The court set the matter for a termination

hearing.

On May 24, 2016, DHS filed an amended petition for termination of parental rights

against Rogers, as the legal father of A.B. With respect to Rogers, DHS alleged that (1) A.B.

had lived outside the home of her parents for more than twelve months and that Rogers had

willfully failed to maintain meaningful contact with her; (2) factors had arisen subsequent to

the filing of the original petition for dependency-neglect that demonstrated that placement of

A.B. with Rogers was contrary to her health, safety, or welfare, and despite the offer of

appropriate family services, Rogers had manifested the incapacity or indifference to remedy

the subsequent factors; and (3) Rogers had been sentenced in a criminal proceeding for a

period of time that would constitute a substantial period of A.B.’s life. Rogers, who was

incarcerated at the time, filed a statement indicating that he expected to be released in the

summer of 2016 and that he wanted to be considered as a placement option for A.B. The

court entered an order appointing counsel for Rogers on July 7, 2016.

At the November 17, 2016 termination hearing, DHS family-service worker, Lisa

Walton, testified that she first met Rogers on August 31, 2015. She advised him that DNA

testing was required and had been requested. She further advised Rogers that he needed to

obtain appropriate housing, income, and transportation. She told Rogers he needed to attend

parenting classes, which she offered. Rogers reported to Walton that he had a home and

received SSI benefits for mental-health issues but that he did not have a vehicle. He said that

he is a convicted felon, is on parole for two years, and was looking for a job. Rogers told

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Walton that he already had a mental-health therapist, and Walton recommended that he return

to his therapist and get back on his medications. Walton also recommended that he resolve

his legal issues.

Walton testified that she met with Rogers a second time on October 25, 2016. He had

just been released from prison the week prior. Rogers advised that he was living with his

mother, had SSI, and was looking for a job and an apartment. He also stated that he had

completed parenting, anger-management, and communication classes while incarcerated.

Walton opined that A.B. would be subjected to potential harm if placed in Rogers’s

custody because they did not have a bond. Walton testified that A.B. is adoptable despite her

special needs 1 and that her foster family was interested in adopting her.

Rogers testified that when he first met with Walton in August 2015, she said DNA

testing was required, to which he submitted. She also told him that he needed to attend

parenting classes. Rogers said that he had the opportunity to take parenting classes before he

was incarcerated but did not. When questioned why, he said:

Well, uh, I was working and, you know. Really, I mean – I’m not sure, ma’am. I felt –
I felt like, uh – I felt like it needed to be done. I didn’t get it done, uh – I don’t know,
hesitation, ma’am.

Rogers also testified that he had been diagnosed with bipolar disorder and schizophrenia but

did not take medication. He stated that Walton recommended that he return to his counselor

for his mental-health issues and medication, but he said he did not do so because he did not

feel like he needed it.

1Walton testified that A.B. has developmental delays.
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Rogers said that he had been arrested on January 28, 2016, for maintaining a drug

premises, being a felon in possession of a firearm, and possession of a controlled substance

with the purpose to deliver. He was sentenced to three years’ imprisonment. He conceded that

his housing at the time of his arrest was not a safe environment for a child. At the time of the

termination hearing, he stated that he was living with his mother but was trying to get his own

apartment. Rogers testified he is still on parole. He said that he had not seen A.B. since she

was four years old (she was nine at the time of the hearing) but that he loved her and wanted

to spend time with her.

At the conclusion of the hearing, the circuit court orally granted DHS’s petition

terminating Rogers’s parental rights to A.B. The court found that DHS proved the

subsequent-factors ground based on Rogers’s delay in complying with services coupled with

his incarceration during the case. The court further found that termination is in A.B.’s best

interest. Specifically, the court found that A.B. is adoptable and that returning her to Rogers

created a substantial risk of harm in that he had just been released from prison the month

before the hearing, he lacked housing, and he had not seen A.B. in five years. The court stated

to Rogers, “Your child at this point does not know you.”

The court entered an order terminating Rogers’s parental rights to A.B. on January 19,

2017. 2 The court stated:

Before DNA evidence confirmed that [Rogers] was the father, he attended court
hearings and had contact with the Department to figure out what he needed to do to
obtain custody of his child, should DNA confirm he was the father. Mr. Rogers was
given some instructions on what he could work on in August 2015. He attended Court
on at least November 10 and November 30, 2015. Mr. Rogers was arrested in January

2The parental rights of Bell, A.B.’s mother, were also terminated in this order. Bell is
not a party to this appeal.
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2016 and released last month. He testified that he did not know why he did not start
working the case plan sooner. . . . He is currently on parole. He chose to get involved
in illegal activity during the course of this case which resulted in a conviction for which
he served some jail time. He is not currently in a position to take a child. . . . Mr. Rogers
has not seen [A.B.], who is now nine years old, since she was four. She does not have
a bond with him. He testified that he does not have stable housing for the child if she
were to be placed in his custody.

This appeal followed.

Termination-of-parental-rights cases are reviewed de novo. Jackson v. Ark. Dep’t of

Human Servs., 2013 Ark. App. 411, at 4, 429 S.W.3d 276, 279. Grounds for termination of

parental rights must be proved by clear and convincing evidence, which is that degree of proof

that will produce in the finder of fact a firm conviction of the allegation sought to be

established. Id., 429 S.W.3d at 279. The appellate inquiry is whether the circuit court’s finding

that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id.,

429 S.W.3d at 279. A finding is 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., 429 S.W.3d at 279. In resolving the clearly erroneous question, we

give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id.,

429 S.W.3d at 279. Termination of parental rights is an extreme remedy and in derogation of

a parent’s natural rights; however, parental rights will not be enforced to the detriment or

destruction of the health and well-being of the child. Id., 429 S.W.3d at 279. In order to

terminate parental rights, the circuit court must find by clear and convincing evidence that one

or more statutory grounds for termination exists. Jackson, 2013 Ark. App. 411, at 5, 429 S.W.3d

at 279 (citing Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2011)). Proof of only one statutory

ground is sufficient to terminate parental rights. Id. at 5, 429 S.W.3d at 279.

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The circuit court found that only one ground supported termination of Rogers’s

parental rights—the subsequent-factors ground—which provides:

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.

Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl. 2015). Rogers argues that there was

insufficient evidence submitted to support this ground because DHS “failed to prove that it

offered any appropriate family services to [him] and there was no evidence that [he] failed to

remedy any supposed subsequent factor.” 3 For support, he cites Jackson, wherein the father

made the same argument and our court reversed the circuit court’s termination decision.

In Jackson, the father made his first appearance in the dependency-neglect proceeding

at the termination hearing. The court continued the hearing as to him and appointed him

counsel. Jackson, 2013 Ark. App. 411, at 3, 429 S.W.3d at 278. The father’s parental rights were

later terminated based on three grounds, one of which was the subsequent-factors ground. On

appeal, he contended that DHS failed to offer any appropriate family services to him and that

there was no evidence that he failed to remedy the subsequent factor. Id. at 8, 429 S.W.3d at

281. We agreed with the father and reversed because the evidence demonstrated that the

caseworker did not speak with the father at the termination hearing, she did not provide him

her contact information, she never attempted to contact him after the hearing to determine

3Rogers does not challenge the circuit court’s best-interest finding.

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whether he was a suitable caregiver, and she did not attempt to identify any services that might

permit reunification. Id. at 8–9, 429 S.W.3d at 281.

The facts in the instant case are distinguishable from those in Jackson. First, Rogers

participated in this case and had communications with DHS. He attended two review hearings.

He met with his caseworker, Walton, twice—before and after his incarceration. Second,

Walton offered services to Rogers. She referred him for DNA testing and parenting classes.

She recommended that he return to his mental-health counselor for treatment and medication.

She advised that he needed to obtain stable housing, income, and transportation. She further

advised that he needed to resolve his legal issues. Third, the evidence demonstrated that

Rogers did not comply with Walton’s referrals or recommendations. He admitted that he had

the opportunity to attend parenting classes before his incarceration but that he did not do so

and he offered no reason for not doing it. He candidly testified, “I didn’t get it done.” He did

not return to his mental-health counselor because he did not think he needed to. After he met

with Walton and was to be working on his case plan, he committed three crimes and was

sentenced to a three-year term of imprisonment. Notably, his crimes were committed in his

home during the time in which he was supposedly trying to obtain stable housing. Rogers

admitted that the home was not a safe environment for a child. At the time of the termination

hearing, Rogers still did not have stable housing or a job. His legal issues had not been resolved;

he had been released from prison one month and was still on parole.

This evidence of Rogers’s failure to engage in services recommended by DHS and his

incarceration during the pendency of the case is clear and convincing evidence that supports

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the circuit court’s subsequent-factors ground for termination. Accordingly, we affirm the order

terminating Rogers’s parental rights to A.B.

Affirmed.

ABRAMSON and HIXSON, JJ., agree.

Jonathan R. Streit, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.