concurring. I agree that the trial court’s decision should be affirmed. However, I cannot agree with the majority’s statement that the termination of parental rights must be affirmed because the trial court “erroneously [terminated] Kight’s rights in the first place” and therefore caused irremediable delay. It is true that matters decided on our prior appeal are the law of the case and govern our actions on the present appeal to the extent that we would be bound by them even if we were now inclined to say that we were wrong in those decisions. Lunsford v. Rich Mountain Electric Coop, 38 Ark. App. 188, 832 S.W.2d 291 (1992). However, if blame is to be placed on a court for the delay caused in this case, we should place a good deal of it on ourselves. Our prior opinion in this case was largely based on Trout v. Arkansas Department of Human Services, 84 Ark. App. 446, 146 S.W.3d 895 (2004), where we held that the trial court erred by disregarding appellant’s eleventh-hour progress made toward reunification. That case, however, was reversed by the Arkansas Supreme Court in an opinion that expressly held that the trial court was not bound to attach significant weight to such tardy improvements, and which restated the fundamental principle that we give great deference to the superior position of the trial court, through observation and extended experience with the parties, to determine whether last-minute efforts are sincere, or instead merely a ruse to prevent imminent termination of parental rights. Trout v. Arkansas Department of Human Services, 359 Ark. 283, 197 S.W.3d 486 (2004).
In our prior opinion in this case, we erred by giving more weight to our hopes regarding appellant’s sincerity than we did to the trial judge’s experience and ability to see, hear, and judge first-hand whether or not her efforts to maintain sobriety were made in good faith. Insofar as we ourselves erred in our prior opinion by eschewing the principles enunciated by the supreme court in Trout, I believe that we bear a measure of responsibility for the resulting delay.
Nor do I agree with the majority’s statement that the conduct of the Arkansas Department of Human Services in this case following remand was “outrageous and contemptuous.” It is true that the ADHS attorneys had no reasonable basis for arguing that our mandate did not require ADHS to provide additional reunification services. Nevertheless, the fact remains that ADHS agents in the field did attempt to provide reunification services by re-instituting drug testing of appellant as a prerequisite to visitation. Insofar as the removal in this case was occasioned by appellant’s inability to provide proper parenting because of her illegal drug use, the resumption of drug tests was the essential first step on the road to reunification. Appellant, by her refusal to submit to these tests, precluded any meaningful attempts at reunification. I submit that appellant, too, has responsibilities as well as rights, and that her outright refusal to cooperate with the additional reunification efforts ordered by this court in our prior opinion was far and away the most “outrageous and contemptuous” behavior exhibited by any of the parties to this case.
I concur in the result reached by the majority.
SUPPLEMENTAL CONCURRING OPINION ON DENIAL OF REHEARING AUGUST 30, 2006