dissenting.
The circuit 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....” Ark.Code Ann. § |g79 — 27— 841(d) (Repl.2008). On review of a denial of a continuance, we consider whether the circuit court abused its discretion. Rhine v. Ark. Dep’t of Human Servs., 101 Ark. App. 870, 278 S.W.3d 118 (2008). Here, Eurana Jones-Lee established good cause to briefly hold the record open for critical evidence regarding whether her children could be returned to her. The circuit court simply placed more emphasis on quickly completing the termination of Jones-Lee’s parental rights than on hearing relevant testimony, and it did so despite Jones-Lee’s diligent efforts to secure the critical evidence. Thus, the circuit court abused its discretion by denying the request, and I respectfully dissent from the majority’s affirmance.
On appeal, Jones-Lee argues that she showed good cause for a continuance. On April 28, 2008, she filed a motion for a continuance, stating that her psychiatrist, Dr. Shamshad Haroon, would be out of state on the date of the hearing and unable to attend the termination hearing. The court denied the motion on May 5, 2008. During opening statements at the May 7, 2008 termination hearing, Jones-Lee’s counsel noted that Dr. Haroon had been subpoenaed for the hearing but was out of state. Counsel requested that the court leave the record open pending Dr. Ha-roon’s testimony regarding Jones-Lee’s mental state. The court made no ruling at that time.
During the hearing, DHS presented the testimony of Fritzie Hemphill, Jones-Lee’s outpatient therapist, who testified that while Jones-Lee had made some progress, she was not yet ready to care for her children and would require approximately six months in therapy to be in a position to care for her children. DHS also presented the testimony of Dr. Paul |28DeYoub, a forensic psychologist who evaluated Jones-Lee one time, one year earlier, on May 7, 2007. At the time of the evaluation, Dr. DeYoub felt that Jones-Lee was “too disturbed” for reunification. Dr. DeYoub described Jones-Lee’s condition on the date that he examined her as “terrible shape, very deteriorated.” Dr. DeYoub testified, however, that without seeing her again, he could not opine whether her mental status was any better now than when he saw her one year earlier.
Following their testimony, the court granted a continuance to the father of one of the children. The court also noted that “we’ve still got it on the table possibly as having Dr. Haroon come back.” The court, however, noted that if “I put it off for Dr. Haroon to come testify, we’re beyond the ninety days, because the ninety days runs this month.” Counsel for DHS noted that it had subpoenaed Dr. Haroon and was prepared to complete the hearing without Dr. Haroon being present. The court concluded that “we’re going to proceed and not waste any more time arguing the same thing.”
Dr. Haroon was not present and did not testify. Her supervisor, Michael Upson, the Chief Operation Officer of Arkansas Behavioral Healthcare, brought Jones-Lee’s medical records. Upson had difficulty reading Dr. Haroon’s notes, but he did testify that Dr. Haroon noted on April 24, 2008, that “I do believe that, if trained, [sic] will be a safe mother.” At the conclusion of the hearing, the court stated,
I said there was a possibility of Dr. Haroon — I certainly have made that decision, but didn’t want to make it ahead of time and certainly, since that was a request of [Jones-Lee]. But I denied the motion, because time is of the essence and we need to | Mdo it. And we’ve got time on the docket and don’t want to continue just because one witness can’t come.
The court terminated Jones-Lee’s parental rights. In an order filed May 22, 2008, the court found that the children had been adjudicated dependent-neglected and had continued out of the custody of Jones-Lee for twelve months and that despite a meaningful effort by DHS to rehabilitate her and correct the conditions that caused the removal, the conditions had not been remedied by her. See Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a). In so finding, the court stated that Jones-Lee had “made no progress in mitigating or eliminating the causes of removal by addressing her considerable mental health issues.”
Jones-Lee thereafter filed a motion for reconsideration, asserting that the court should reopen the record to receive Dr. Haroon’s testimony on her stability and compliance with medical and mental-health treatment. Jones-Lee attached to her motion an affidavit in which Dr. Haroon stated that she had been subpoenaed to attend the hearing; that she informed DHS’s attorney that she would be out of state on that date; that she told DHS’s attorney she wanted to testify and asked if she could appear by telephone; that DHS’s attorney told her she did not need to appear because the hearing would be continued; that she told DHS’s attorney that Jones-Lee could “easily have her kids back, if given the proper support”; and that she was assured that the date for the hearing would be rescheduled. The circuit court denied her motion for reconsideration.
On appeal, Jones-Lee argues that the court denied her request to hold the rec-ordJj¡open to hear Dr. Haroon’s testimony regarding her mental stability, even though the court’s decision to terminate her parental rights focused on her mental-health stability. In sum, Jones-Lee requested that the record be held open to hear Dr. Haroon’s testimony on her mental state, and the circuit court essentially concluded that good cause was not shown for the extension of the hearing beyond the ninety-day period. But despite this ruling, the court’s decision to terminate Jones-Lee’s parental rights was based on its conclusion that she had not addressed her mental-health issues.
The record shows that Jones-Lee was seen by Dr. Haroon, a psychiatrist, on April 24, 2008, just days before the termination hearing. Upson testified that Dr. Haroon wrote that, with training, Jones-Lee would be a safe mother. Dr. Haroon’s post-hearing affidavit also noted that she could easily have her kids back if given the proper support. In contrast, DHS presented the testimony of Dr. DeYoub, who, having seen Jones-Lee one year earlier, was unáble to opine as to her current mental state, and Hemphill, a therapist, who opined that Jones-Lee would be capable of caring for her children in approximately six months. The court precluded Jones-Lee from producing testimony that would have most directly addressed the question of her mental health — the testimony of Jones-Lee’s psychiatrist — and yet made its decision to terminate her parental rights based on mental-health issues. Also, despite the court’s desire to conclude the case before the ninety-day period was up, it nevertheless continued the hearing for the father of one of the children. Given this, one must conclude that the court abused its discretion by denying the request to hold the record hi open for Dr. Haroon’s testimony. See Rhine, supra (holding that the circuit court abused its discretion in refusing to grant a continuance beyond the ninety-day limit).
It is apparent that the circuit court placed more emphasis on terminating Jones-Lee’s parental rights prior to the expiration of the ninety-day limit than on hearing relevant evidence. One panel of this court recently wrestled with the balance between speedy resolution of termination hearings and the necessity of hearing critical evidence. See Prows v. Ark. Dep’t of Health and Human Servs., 102 Ark.App. 205, 283 S.W.3d 637 (2008). In Proivs, the mother suffered from mental instability, but even though she was not yet ready to have sole custody of the child, it was established that her mental state had recently improved. The circuit court terminated the mother’s parental rights because of her mental instability and her failure to remedy that condition. The circuit court further stated that it had to terminate the mother’s parental rights if the child was not immediately able to go home with the mother. The Prows court reversed, holding that the circuit court should have considered and weighed evidence about the mother’s recent improvements. In analyzing whether the error was harmless, the court noted that there was no statutory requirement that the child must be immediately able to return to the mother. It cited the statutory provision that the intent of the termination statute is to “provide permanency in a juvenile’s life in all instances in which the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the |a2juvenile’s perspective.” Ark.Code Ann. § 9-27-341(a)(3). It concluded that this statutory provision “seeks stability for the child, while allowing a parent a reasonable time (all material things considered) to correct problems.” 102 Ark.App. at 209, 283 S.W.3d at 640. The Prows court concluded that, given the instability in the child’s life in foster care and the circuit court’s incorrect statement of the law, the mother’s recent mental stability could well affect the court’s ultimate decision.
Similarly, the circuit court in the case at bar, rather than emphasizing the ninety-day limit, should have likewise considered relevant positive evidence on Jones-Lee’s mental stability and determined whether her children could be returned to her within a reasonable period of time. Instead, the circuit court not only did not consider and weigh the evidence, it placed great weight on the ninety-day limit and precluded Jones-Lee from even presenting the evidence, despite terminating her parental rights based on mental-health issues. Moreover, it cannot be said that her children’s lives are currently stable (the children are not together, and two of the children were in four different foster homes in less than one year). Thus, Prows supports the conclusion that the circuit court abused its discretion in not holding the record open for the taking of Dr. Haroon’s testimony on this critical issue.
The majority concludes that Jones-Lee was not diligent because she did not subpoena Dr. Haroon or depose her. This is not the standard for diligence, and the majority cites no authority for such a proposed standard. This was no last-minute effort by Jones-Lee to secure Dr. Ha-roon’s testimony at the hearing. DHS had in fact subpoenaed Dr. Haroon, and after laslearning that Dr. Haroon would be out of state, Jones-Lee sought a continuance nine days prior to the hearing for that reason. Moreover, Jones-Lee also asked for a continuance at the beginning of trial, during trial, and after trial, and the court was fully apprised of the need to hear Dr. Haroon’s testimony on her mental-health issues. Surely, this denotes diligence. The majority also notes that denial was proper because appellant failed to file an affidavit to support her motion. The Arkansas Supreme Court, however, stated in Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005), that to raise this argument, the State, who was the appellee, must object before the circuit court that an appellant failed to file the affidavit. DHS, who was the appellee, also did not do so.
Further, the majority suggests that the error was harmless because Hemphill testified that Jones-Lee would require additional therapy. This ignores the fact that Dr. Haroon is the only psychiatrist who treated Jones-Lee, and that the psychologist, Dr. DeYoub, knew nothing about her current mental state. The majority also suggests that it was harmless because we have Dr. Haroon’s notes, and those notes suggest that she is not currently a safe mother. This assertion, however, obfuscates the fact that Dr. Haroon’s conclusion was that Jones-Lee could be a safe mother. The circuit court should have heard the testimony to determine whether that would occur within a reasonable time.
This case should be remanded so that the circuit court may hear Dr. Haroon’s testimony and then determine whether termination of parental rights is warranted.
GLADWIN, ROBBINS, and BAKER, JJ., join.