dissenting. I agree with the majority’s conclusion that the trial court did not clearly err in finding that termination of appellant’s rights was in B.L.’s best interest. However, I would hold that the trial court clearly erred in finding clear and convincing evidence of one of the additional statutory grounds necessary to support a termination order. Therefore, I respectfully dissent from the majority opinion that affirms the termination of Mr. Latham’s parental rights.
The trial court terminated appellant’s parental rights on the following three grounds1 set out in Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2005):
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to 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 juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification[.]
The majority appears to acknowledge that the trial court erred to the extent that it terminated Mr. Latham’s parental rights on the ground set forth in subsection (i) inasmuch as B.L. had only been out of Mr. Latham’s custody for just over ten months rather than twelve months as required under this subsection. The trial court’s finding that B.L. had “continued out of the custody of father for twelve (12) months” is clearly erroneous. The majority relies on the two remaining subsections to affirm, which in my view are inapplicable to the circumstances of this case.
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to the custody of the parent.
As to the trial court’s reliance on (vii)(a), the only finding of fact made by the court as pertains to Mr. Latham is “Father went to prison.” Actually, Mr. Latham had already been taken into custody when the original petition for dependency-neglect was filed on June 13, 2006. Consequently, Mr. Latham’s incarceration was not a factor that arose subsequent to the filing of the original petition. Furthermore, even if his incarceration had occurred subsequent to the date of the petition, the requisite additional finding under this ground that “the parent has manifested the incapacity or indifference to remedy the subsequent” factor is clearly erroneous because Mr. Latham had indeed been released from prison prior to the termination hearing. For these reasons subsection (vii)(a) could not support a termination of Mr. Latham’s parental rights.
(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 juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunficationf.]
The trial court’s order did not specify the aggravated circumstances to which Mr. Latham had subjected B.L.; however, it incorporated by reference the aggravated circumstances that it had set forth in its earlier Order For No Reunification Services dated January 19, 2006. That order made numerous findings regarding Mrs. Latham, but only found the following regarding Mr. Latham:
As to Father, the Court has had several cases on the family over past six years. Father is currendy incarcerated by ADOC. When father is out of prison and sets the rules, children do okay, but it is the relationship between Mother and Father gets chaotic & volatile (as it always does) the children suffer — they don’t get proper supervision & needs met (D.L. pregnant at age 15, O.L. committing crimes and going to DYS, B.L. not going to school, etc.) When Father hopefully gets out of prison end of Jan. 2006, and will be on parole until 2008. Father will either be successful upon release from prison or not.
These observations fall far short of finding that B.L. had been “abandoned, chronically abused, subjected to extreme or repeated cruelty, [or] sexually abused” by Mr. Latham. Neither does it support a conclusion that “there is little likelihood that services to the family will result in successful reunification.”
Mr. Latham did not demonstrate indifference to remedying the problems that resulted in the removal of his children from the home. To the contrary, he wrote frequent letters to all three children during his incarceration in prison, and also completed courses in anger management and substance abuse treatment. Upon his release from prison, Mr. Latham secured gainful employment earning $9.95 per hour working sixty to eighty hours per week. While Mr. Latham was living at a friend’s house at the time of the termination hearing, he had only been out of prison for three months and explained that he had the means to rent a larger home appropriate for his children, but had yet to do so due to the uncertainty of this case. Mr. Latham had filed for divorce and had no plans to reunite with the children’s mother, who had clearly been a negative factor in the children’s lives. Mr. Latham stated, “I’ve been taking care of them all their lives,” and wanted to continue to be a parent to his children.
Nor was there any proof that Mr. Latham was incapable of being a fit parent to any of his children, including B.L. The trial court chose not to terminate Mr. Latham’s parental rights to his two older children, and DHHS worker Teresa Jones testified that Mr. Latham’s older son O.L. expressed a strong desire to live with him. Ms. Jones stated that Mr. Latham is not an unfit parent, and she recommended that O.L. be returned to Mr. Latham “if Daniel is able to stay clean and gets a place to live.” Ms. Jones testified that Mr. Latham cooperated with her in every way, indicating that Mr. Latham was motivated to pursue reunification with all of his children.
While there are legitimate concerns about Mr. Latham’s prior criminal history, it is evident that since his children were removed from his custody he has made legitimate progress toward reunification. Mr. Latham has done nothing since that time to demonstrate that the return of B.L. to his custody would put B.L. at risk. And under the circumstances of this case, I believe that continued services would have resulted in a legitimate likelihood of reunification. For these reasons, I would reverse the order terminating Mr. Latham’s parental rights.
Hart, Gladwin, and Vaught, JJ., join in this dissent.A fourth ground was discussed in the trial court’s order of termination, i.e., § 9-27-341 (b) (3) (B) (ii) (a); however, the court’s findings on this ground specifically pertained only to B.L.’s mother.