Rhonda Park and James Park v. Arkansas Department of Human Services and Minor Child

Cite as 2023 Ark. App. 546
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-256

Opinion Delivered November 29, 2023

RHONDA PARK AND JAMES PARK
APPEAL FROM THE VAN BUREN
APPELLANTS
COUNTY CIRCUIT COURT
[NO. 71JV-21-22]
V.
HONORABLE SUSAN WEAVER,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILD AFFIRMED
APPELLEES

CINDY GRACE THYER, Judge

This appeal arises from a Van Buren County Circuit Court’s denial of biological

relatives’ petitions for guardianship and for adoption of a minor child (MC) after parental

rights to the child were terminated. MC’s great-aunt and great-uncle, Rhonda and James

Park, challenge the court’s denial of their petitions, the court’s grant of the foster parents’

petition to adopt, and the court’s failure to recuse itself. We affirm.

To fully understand the arguments on appeal, a brief overview of the underlying

dependency-neglect proceedings is necessary.

In August 2021, the Arkansas Department of Human Services (Department) was

notified that MC’s mother had tested positive for amphetamines at MC’s birth. MC’s

mother also admitted she was homeless. As a result, the Department exercised a seventy-two-
hour hold on MC due “to parental unfitness as a result of illegal drug use, Garrett’s Law,

and [her] mother’s pattern of homelessness and overall stability.”1 MC’s mother subsequently

stipulated to a finding of dependency-neglect, and the court set the goal of the case as

reunification with a fit and appropriate parent. As part of the case plan, the court ordered

the Department to provide four hours of supervised visitation each week.

A review hearing was held in January 2022, after which the court entered an order2

finding that, although MC’s mother had less than partially complied with the case plan and

court orders, the goal of the case would continue to be reunification but with a concurrent

goal of adoption. The court noted in the order that the Department had completed an

Interstate Compact on the Placement of Children (ICPC) package on the Parks, who live in

Florida. At the time of the review hearing, MC remained in provisional foster care in

Arkansas, and visitation between the parents and MC was being provided to support

reunification efforts. The Parks’ ICPC home study had been approved prior to the hearing,

but the results were not mailed to the Department until shortly thereafter.

1
At the time of removal, the Department indicated that it would contact MC’s
maternal grandmother, who had guardianship over MC’s siblings, and a paternal aunt to see
if either would be an appropriate relative placement option. The grandmother indicated that
she could not care for an additional child and was therefore not an appropriate placement.
The record is silent as to potential placement with the paternal aunt. The Parks had yet to
be identified as a possible placement. As a result, MC was placed in provisional foster care.
2
The January 21, 2022 review order filed after the hearing erroneously stated that the
review hearing had been held on October 6, 2021. That order was later amended on
February 22, 2022, to reflect the correct hearing date.

2
On March 18, 2022, the Department filed a motion for ICPC placement of MC with

the Parks in Florida. In its motion, the Department stated that relatives are given preferential

treatment in the placement of juveniles in dependency-neglect actions and asserted that it

was in MC’s best interest that she be placed with the Parks. The Department noted that the

goal of the case was reunification with a concurrent goal of adoption; that the mother was

less than partially compliant with the case plan; and that the father was only partially

compliant. The attorney ad litem (AAL) concurred with the Department’s request to grant

an ICPC placement with the Parks.

A combined review hearing and a hearing on the motion for ICPC placement was

held on May 16, 2022. Parent counsel objected to MC’s being placed with the Parks in

Florida because, among other things, it would be difficult to provide the parents visitation if

MC were in Florida. After the hearing, the court reiterated that the goal of the case was

reunification with a fit and appropriate parent and denied the ICPC placement with the

Parks. In doing so, the court found that, while MC’s mother was only minimally compliant

with the case plan, she was attending visitation and had completed the parenting assessment.

The court also found that MC’s father was in compliance with the case plan and noted, in

part, that he was working, attending visitation, and had completed the parenting assessment.

A permanency-planning hearing was held on August 3, 2022, after which the court

found that both parents had only minimally complied with the case plan and changed the

goal of the case to guardianship with a fit and willing relative together with a concurrent goal

3
of adoption after termination of parental rights. 3 Despite the goal change, the court

continued the parents’ right to visitation with MC. The court set October 5, 2022, as the

date for the termination hearing.

On August 11, 2022, the foster parents, who had had custody of MC since her

removal, filed a motion seeking leave to intervene in the dependency-neglect case for

purposes of filing a guardianship petition. The attorney ad litem filed a response requesting

that the court deny the motion to intervene as premature given the current stage of the

dependency-neglect proceedings.

A week later, the Department filed a petition for termination of parental rights

followed by adoption and noted that the hearing on the petition was set for October 5, 2022.

The day before the termination hearing, the Parks filed a petition to be appointed the

permanent guardians of MC. They noted that their ICPC home study had been approved,

but placement had not yet been made. That same day, the Department filed a motion for

continuance of the termination hearing to allow it more time to consider MC’s permanency

options and to respond to the Parks’ petition for guardianship.

At the beginning of the termination hearing, the court asked whether the foster

parents’ motion to intervene was being considered. Counsel for the foster parents responded

that they would be seeking to adopt MC and thus needed to amend their pleading requesting

3
The order itself was not filed until the day before the termination hearing (October
4, 2022).

4
intervention. The AAL and the Department requested a hearing on the motion, and the

parties agreed that a hearing date would be set at the conclusion of the termination hearing.

The Department then requested that, prior to the commencement of the termination

hearing, it be allowed to dismiss its termination petition so that it could consider the

competing guardianship petitions. The court denied the Department’s motion to dismiss,

finding it untimely.

The case then went forward on the petition to terminate. After the hearing, the court

filed an order terminating parental rights and changing the permanency plan for MC to

adoption. The termination order set the hearing on the foster parents’ motion to intervene

and petition for adoption for November 17, 2022.

On October 12, 2022, the Parks filed a petition to adopt MC, claiming that it was in

MC’s best interest to be placed with biological relatives and that Arkansas law required that

relative placement be considered at all stages of the case. Two days later, the foster parents

filed an amended motion for leave to intervene to file an adoption petition, which the court

granted. Their adoption petition was filed of record on October 19, 2022, and their adoptive

home study was approved on November 7, 2022.

The Parks, on the other hand, did not file their motion to intervene until October

19, the same day the foster parents filed their adoption petition. The Parks sought leave to

intervene for purposes of establishing a permanent guardianship as to MC or, in the

alternative, to adopt her.

5
On November 14—three days before the scheduled hearing on the motions to

intervene and related petitions—the Parks moved to continue, citing their counsel’s conflict

with the November 17 court date. They claimed they had only recently discovered the

hearing date, that they needed to travel out of state, and that they would have to make last-

minute adjustments to their schedule to attend a hearing where their counsel would not be

available.

The court denied the continuance motion. In doing so, it noted that the Parks had

been present at the termination hearing on the day the hearing was set, as was their counsel.

The court stated that counsel was aware that a date for the intervenor-adoption hearing

would be set upon the conclusion of the termination-of-parental-rights hearing but opted to

leave before the hearing date was set. In any event, the Parks were present when the

November 17, 2022 hearing was set and thus had actual notice of the hearing date.

Moreover, the court found the Parks lacked standing to request a continuance because their

motion to intervene had not yet been granted.

On the morning of the termination hearing, the Parks moved to disqualify the circuit

judge, claiming that she had consistently disregarded Arkansas law with respect to the

relative-placement preference and that she had improperly denied the Department’s request

to dismiss the termination petition so that it could consider relative placement and

proceeded with termination. The Parks asserted the court had indicated a bias and or

prejudice against them through its various statements and comments and further pointed to

the dismissal of their continuance motion as evidence that the circuit judge should recuse

6
herself. The Parks maintained that, as a result of the foregoing, the court’s impartiality had

been called into question, thereby requiring her recusal.

The motion to disqualify was considered at the November 17 hearing. Despite having

previously claimed a conflict with the hearing date, the Parks’ counsel was present at the

hearing. After the hearing, the court granted the Parks’ motion to intervene but denied their

motion to disqualify.

The hearing on the competing petitions for adoption was held on January 18, 2023.

After the hearing, the court entered an order granting the foster family’s adoption petition

and denying the Parks’ competing petition. In doing so, the court recognized that the Parks’

ICPC had been approved and that they had reached out to the Department multiple times

during the dependency-neglect proceedings in an attempt to establish a relationship with

MC and to be involved in the case. The court noted that it had considered ICPC placement

on two separate occasions but had denied the requests after MC’s biological parents and

their attorneys had been adamant that MC not be sent to Florida to live with the Parks

because doing so would impede their reunification efforts. The court stated that both sets of

petitioners are wonderful and outstanding people but that MC’s tremendous bond with the

foster family and her lack of familial relationship or attachment with the Parks—the child

had spent only a few hours with the Parks—were the most relevant factors in its decision to

grant the foster family’s adoption petition. The court also considered the age of the parties;

the distance between the Parks’ home in Florida and the remaining biological family in

Arkansas; the foster family’s expressed interest in encouraging a relationship between MC

7
and her biological family, including visitation with her siblings and the Parks; and, although

relative placement was no longer a preference, the biological connection between the Parks

and MC. For these reasons, the court found that it was in MC’s best interest that the

adoption petition of the foster family be granted.

The Parks have appealed, challenging the court’s denial of their guardianship and

adoption petitions and the court’s failure to recuse itself.

I. Denial of Motion to Recuse

For their first point of appeal, the Parks argue that the circuit court erred in denying

their motion to disqualify or recuse. A circuit court’s order denying a motion to recuse is

reviewed under an abuse-of-discretion standard. See Shaffer v. State, 2018 Ark. App. 581, at

4, 566 S.W.3d 522, 524. “A trial judge is presumed to be impartial, and a party seeking

disqualification bears a substantial burden to prove otherwise.” Ahmad v. Horizon Pain, Inc.,

2014 Ark. App. 531, at 5, 444 S.W.3d 412, 416. “The party seeking recusal must

demonstrate bias,” which must be shown objectively or by a “communication of bias.”

Parkerson v. Brown, 2013 Ark. App. 718, at 8, 430 S.W.3d 864, 871. There is an affirmative

duty not to recuse where no conflict exists. See Worth v. Benton Cnty. Cir. Ct., 351 Ark. 149,

156, 89 S.W.3d 891, 896 (2002).

The Parks moved to disqualify the circuit judge below because she refused to place

the child in their care despite an approved ICPC home study and despite statutory authority

as to the preferential status of relative placement. They then outlined several instances in

which they believed the circuit judge revealed her bias: (1) the interaction between the court

8
and counsel for the foster parents at the termination hearing; (2) the court’s subsequent

failure to acknowledge their counsel’s presence on the record at that hearing; (3) the court’s

“redress and frustration” at the Department’s apparent desire to dismiss the termination

petition so it could pursue a potential guardianship with the Parks; (4) the court’s denial of

the motion to continue so that the Department could pursue the guardianship option; and

(5) the court’s use of the words “pissing match” to describe an exchange it had with the

Department and the AAL during the proceedings.4 They comment that this latter incident

was on the record, in open court, in a hearing in which nonparties were not excluded, and

it belied the appearance of fairness. They further note that the court even referenced the

director of the Judicial Discipline and Disability Commission (JDDC) and apologized to him

and not the participants in the room. They additionally argue that the court’s

characterization of counsel’s arguments in support of their motion for continuance as

“disingenuous” and a “misrepresentation” and its suggestion that it might hold the hearing

in their absence called into question the court’s impartiality and appearance of fairness.

As stated above, we first start with the principle that judicial impartiality is presumed,

and adverse rulings are not enough to demonstrate bias. Clowers v. Edwards, 2020 Ark. 367;

4
During cross-examination of the social worker, the AAL began to question the social
worker regarding the Department’s duty to locate relatives for placement during the
dependency-neglect proceedings. Parent counsel objected on relevance grounds and therein
began a back and forth between the court and the AAL regarding the relevance of the relative-
placement statute at a termination hearing. The court then stated, “Because I feel like, and
this is probably going to be lack of a better – probably going to get in trouble for saying this,
but I feel like what we’ve got going on in here is a pissing match.”

9
Taffner v. Ark. Dep’t of Hum. Servs., 2016 Ark. 231, at 14, 493 S.W.3d 319, 329. A party

seeking disqualification bears a substantial burden to overcome that presumption. Ark. Jud.

Discipline & Disability Comm’n v. Proctor, 2010 Ark. 38, 60 S.W.3d 61; Owens v. State, 354

Ark. 644, 128 S.W.3d 445 (2003). To decide whether there has been an abuse of discretion,

the appellate courts will review the record to determine if prejudice or bias was exhibited.

Owens, 354 Ark. 644, 128 S.W.3d 445.

Upon review of the record in this case, we find that the Parks have failed to overcome

that presumption. There is nothing in our record to indicate that the circuit court’s failure

to consider guardianship or its denial of the Department’s motion to continue were the

result of any bias or prejudice against the Parks; these were simply adverse decisions based

on the record before the court at the time the decisions were made. Moreover, at the time

of these decisions, the Parks were not even parties in the dependency-neglect proceedings.

Nor do the remaining allegations rise to the level of bias so as to require recusal. The

fact that the circuit judge and counsel for the foster parents engaged in a polite and friendly

exchange prior to a hearing in which the Parks’ counsel was present but not addressed by

the court does not overcome a presumption of impartiality. The hearing at issue was, in part,

a hearing on the foster parents’ motion to intervene prior to termination. Thus, collegial

interaction between the court and counsel is nothing extraordinary. And, while the Parks

had filed their petition for guardianship the day before, they had not yet filed a motion to

intervene and were not recognized parties to the action at that point. Thus, the court’s failure

to formally acknowledge the Parks’ counsel is not any clear indication of bias.

10
As for the alleged “pissing match” comments and the apology to the “JDDC,” these

also fail to demonstrate any bias. The “pissing match” reference involved a disagreement

between the court, parent counsel, and the AAL over the relevance of relative placement in

a termination hearing. After much back and forth, the court stated that the parties needed

to move on as this was just a “pissing match.” The circuit judge then jokingly apologized to

the head of the JDDC for her somewhat inappropriate language. When viewed in this

context, there does not appear to be any indication of bias, especially given the fact that the

Parks were not parties at the termination hearing.

As for the Parks’ claims that the circuit court further revealed its bias when it (1)

denied their motion to continue the November 17 hearing date, referring to their arguments

as “disingenuous” and a “misrepresentation,” and (2) indicated its intent to proceed with the

hearing on the competing adoption petitions without them, their claims are again not well-

taken. Counsel, in her motion to continue, claimed that she had no notice of the proposed

hearing and that she had previously advised the court’s clerk of her apparent conflict with

the November 17 hearing date. The court in its order denying the motion to continue simply

clarified that counsel was aware that the hearing date would be set after the termination

hearing; that, while counsel opted to leave the hearing prior to the scheduling, her clients

were present when the hearing was scheduled for November 17; and that counsel had

objected to the November 17 date on October 5, thereby contradicting her claim that she

was not put on notice of the date the hearing was set. As a result, the court concluded that

counsel’s claim that she had no notice of the hearing was “disingenuous” and a

11
“misrepresentation” of the circumstances surrounding the trial setting. Such a conclusion

was not clearly erroneous under the circumstances and does not reflect bias on the part of

the circuit court.

Finally, it is apparent on our record that the circuit court’s ultimate decisions

regarding guardianship and adoption were not based on any prejudice or animus against the

Parks or the Department, nor did the court exhibit any sort of bias in favor of the foster

family. The court allowed both parties to proceed with their respective adoption petitions

and appeared to have decided the issues solely on the basis of what it determined was in the

best interest of the child. Thus, the court did not abuse its discretion in denying the motion

to recuse.

II. Dismissal of Petition for Guardianship

The Parks next argue that the circuit court erred in denying the guardianship petition

they filed prior to the termination hearing. They note that, at the permanency-planning

hearing, the circuit court changed the primary goal of the case to guardianship; that they had

previously received ICPC approval; and that the Department and the AAL had previously

requested they be considered as a potential placement. They claim that, as a result,

termination of parental rights was not necessary and that their guardianship petition should

have been considered. However, we note that the Parks were not parties to the dependency-

neglect proceedings at the time of the termination hearing, and they did not seek

12
intervention until after termination was granted. 5 Thus, they lacked standing to challenge

the circuit court’s termination decision, and they have not explained on what basis standing

exists for such a challenge under these circumstances. Moreover, from our record, it does

not appear that the parents, who clearly had standing to appeal the termination decision,

ever appealed the termination decision or timely challenged the Department’s failure to

place MC with a relative prior to termination.6 Thus, the circuit court’s determination that

termination was in the best interest of the child stands, and the court’s dismissal of the Parks’

petition for guardianship is affirmed.

5
We also note that the court granted the Parks’ request to intervene only for the
purpose of filing their adoption petition, not for the purpose of filing the guardianship
petition. However, the court in its final order acknowledged that both parties had filed
guardianship petitions, but because the petitions were not considered by the court, they were
therefore dismissed.
6
Case law from this court holds that a circuit court is permitted to set termination as
a goal even when a relative is available and requests custody. This is because the Juvenile
Code lists permanency goals in order of preference, prioritizing a plan for termination and
adoption unless the juvenile is already being cared for by a relative, the relative has made a
long-term commitment to the child, and termination of parental rights is not in the child’s
best interest. Dominguez v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 2, 592 S.W.3d 723; Otis
v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 28, 538 S.W.3d 870.

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III. Denial of Adoption Petition

For their final point on appeal, the Parks, relying on Ellis v. Arkansas Department of

Human Services, 2016 Ark. 441, 505 S.W.3d 678, maintain that the circuit court erred in

granting the foster family’s adoption petition because the court failed to properly consider

relative placement at every stage of the dependency-neglect proceedings. They claim that the

circuit court was compelled by statute to place MC with approved relatives, yet it failed to do

so. They further assert that this failure resulted in MC’s having a stronger attachment to the

foster family and that such bond was then relied on by the court to grant the adoption

petition. Therefore, the adoption decree should be reversed, and the case remanded for the

court to reconsider in light of the statutory preference for relative placement. We disagree.

A circuit court may grant a petition for adoption if it determines at the conclusion of

a hearing that the required consents have been obtained or excused and that the adoption

is in the best interest of the child. Canerday-Banks v. Barton, 2018 Ark. App. 523; Cowan v.

Ark. Dep’t of Hum. Servs., 2012 Ark. App. 576, 424 S.W.3d 318. The Parks do not challenge

either of these requirements on appeal. Instead, their focus is on the circuit court’s failure

to consider relative placement prior to termination. However, unlike the relatives in Ellis,

the Parks did not seek to intervene in the dependency-neglect proceedings where the relative-

placement determinations were made until after termination. Following a termination of

parental rights, relatives are no longer given preference over foster parents. Suster v. Ark. Dep’t

of Hum. Servs., 314 Ark. 92, 858 S.W.2d 122 (1993); Clark v. Ark. Dep’t of Hum. Servs., 2019

Ark. App. 223, 575 S.W.3d 578; Davis-Lewallen v. Clegg, 2010 Ark. App. 627, 378 S.W.3d

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185; see also Canerday-Banks, 2018 Ark. App. 523, at 10 n.7 (“[O]ur supreme court has made

clear that a biological grandparent’s status as a ‘relative’ terminates when his or her child’s

parental rights are terminated.”). Thus, their claims that they were entitled to relative

preference during the adoption proceedings are incorrect. Moreover, as the appellees note

in their brief, the current appeal is only from the circuit court’s determination with regard

to the adoption petitions, not from the termination petition. Thus, their arguments in this

respect are not properly before us. See Cowan v. Ark. Dep’t of Hum. Servs., 2012 Ark. App.

576, 424 S.W.3d 318 (finding that arguments related to the circuit court’s decision to deny

appellants’ motion to intervene and from the court’s permanency-planning order were not

properly before this court in an appeal from the denial of the appellants’ adoption petition).

Finally, the court in its order granting the foster family’s adoption petition and

denying the Parks’ competing petition specifically stated that it had considered the fact that

the Parks are still MC’s biological relatives despite the termination of parental rights.

Unfortunately for the Parks, it determined that relative placement could not take precedence

over the best interest of the juvenile. The circuit court determined that it was in MC’s best

interest to be adopted by her foster family with whom she had lived for almost the entirety

of her young life and with whom she had developed a tremendous bond. We give great

deference to the circuit court’s personal observations when the welfare of a young child is

involved because there is no other case in which the superior position, ability, and

opportunity of the circuit court to observe the parties carry as great a weight as one involving

minor children. Tom v. Cox, 101 Ark. App. 388, 278 S.W.3d 110 (2008). Having given the

15
record our de novo review, we cannot say that the circuit court’s finding in this regard was

clearly erroneous.

Affirmed.

ABRAMSON and KLAPPENBACH, JJ., agree.

Eden Law Firm, by: Kimberly Eden, for appellants.

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.

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