Vogel v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 671

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-607

Opinion Delivered November 18, 2015
AUTUMN VOGEL
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
[No. 63JV-13-392]
V.
HONORABLE GARY ARNOLD,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
APPELLEES AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Autumn Vogel appeals the termination of her parental rights to her son

B.H. (born December 9, 2013). On appeal, Autumn argues that (1) her due-process rights

were violated when the circuit court held the termination hearing in her absence and without

her participation by phone or other remote means, (2) her appointed attorney’s failure to

insist on her presence at the hearing or require proof of personal service upon Autumn

amounted to ineffective assistance of counsel, and (3) the termination decision was clearly

erroneous. We affirm.

Autumn was incarcerated when she gave birth to B.H. in December 2013. There was

no suitable legal caregiver available for B.H., so the Department of Human Services

(“DHS”) petitioned for and obtained emergency custody of him. In the ex parte prder for

emergency custody, filed December 13, 2013, Autumn was appointed an attorney. On

January 6, 2014, a probable-cause hearing was held. The probable-cause order stated that
Cite as 2015 Ark. App. 671

Autumn had been served “by substituted service upon the Warden at Wrightsville Women’s

Unit, on December 17th, 2013.” Autumn and her attorney were present at the hearing. The

court found probable cause for the removal of B.H. and his continued care by DHS.

Autumn was still incarcerated at the time of the March 5, 2014 adjudication hearing

but attended the hearing with her attorney. B.H. was adjudicated dependent-neglected, and

the order stated that Autumn had been personally served on February 10, 2014. The order

stated that Autumn was ordered to follow the case plan, cooperate with DHS, remain in

regular contact with DHS, submit to a drug-and-alcohol assessment, submit to random drug

screens and test clean on all screens, attend individual counseling, complete a psychological

evaluation, complete parenting classes, obtain and maintain a safe and clean home, obtain

and maintain stable employment, and follow all recommendations that result from DHS

services.

On July 7, 2014, Autumn attended a review hearing with her attorney. In its review

order, the court found that DHS was making reasonable efforts to provide family services to

achieve the goal of reunification. The court also provided a concurrent case goal of

adoption.

Autumn was released from prison on parole in August 2014. She initially resided at

Recovery Centers of Arkansas. On or around October 31, 2014, she began renting a home

on Sardis Road in Mabelvale, Arkansas. The home belonged to an acquaintance who had

recently been incarcerated on drug charges. The home is listed on the National Clandestine

Laboratory Register for Arkansas on the Drug Enforcement Agency’s website as having

been the site of a methamphetamine lab. When DHS discovered the home’s history as a

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Cite as 2015 Ark. App. 671

meth lab and determined that it was contaminated with meth, a caseworker informed

Autumn that the home was not safe and appropriate for a child. Autumn was told that she

would have to find another, more suitable, home before being allowed to care for B.H.

Autumn attended the permanency-planning hearing on November 17, 2014, with her

attorney. At the hearing, Autumn was again ordered to comply with the case plan, including

an order to obtain safe and appropriate housing and test clean on random drug screens. The

next hearing, a fifteen-month review hearing, was set for February 2, 2015. In the

permanency-planning order, the court found that the case was not moving toward an

appropriate permanency plan for the child and authorized DHS to file a petition for the

termination of Autumn’s parental rights.

Between the hearing on November 17, 2014, and the hearing on February 2, 2015,

Autumn refused to move out of the methamphetamine-contaminated home until,

approximately a week before the February hearing, her parole officer ordered her to find

alternative housing or risk parole revocation. Between the two hearings, Autumn tested

positive for methamphetamine once and alcohol twice. By this point, Autumn had also

missed numerous visitations with her child. The day before the February 2 hearing, Autumn

was arrested in Rockwall, Texas, on charges of identity theft, possession of a controlled

substance, and possession of drug paraphernalia.

On February 2, 2015, the court held the fifteen-month review hearing. Autumn’s

attorney attended, but Autumn did not attend due to her incarceration in Texas. The court

found that returning B.H. to Autumn’s custody was contrary to his best interest and set

adoption as the case goal. On the day of the review hearing, DHS filed a petition for

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termination. In the review order, the court stated that a hearing on the petition to terminate

Autumn’s parental rights was scheduled for April 20, 2015, at 9:00 a.m.

The termination hearing was held on April 20, 2015. Autumn was not present

because she was still incarcerated in Texas. Autumn’s attorney attended the hearing. At the

outset of the hearing, B.H.’s father’s appointed attorney moved for a continuance, stating

that he had not been able to locate his client and did not know if his client had been served

with the petition or notice of the hearing. The court denied the continuance, stating that the

father was aware of the case and of the appointment of counsel and that it was the father’s

responsibility to contact the attorney.

The court then asked if Autumn was present. Her attorney responded,

No, Your Honor. My client is still incarcerated in Rockwall, Texas. I do not know
whether or not she’s been served. I know that I received a copy of the [termination of
parental rights] petition, but I don’t know if she’s been served.

The attorney for DHS stated that Autumn had been served in Texas on February 6, 2015,

but no evidence of service was introduced. The court then proceeded with the termination

hearing.

At the hearing, DHS caseworker Erin Descoteaux testified that Autumn had

completed some requirements of the case plan, such as parenting courses, but that she had

not completed other requirements, such as obtaining stable housing, remaining drug free,

and completing counseling. The caseworker testified that Autumn had previously had her

parental rights terminated as to three of B.H.’s siblings. The caseworker also stated that

Autumn missed several visitations with B.H.

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Although Autumn was not present, her attorney made numerous evidentiary

objections and cross-examined the caseworker to reveal that (1) Autumn had complied with

numerous case requirements while in prison and while on parole; (2) Autumn was on a

limited budget, making it difficult for her to find alternative housing; (3) Autumn submitted

a letter to DHS from an unspecified government agency stating that the house was not on

the DEA’s clandestine-labs register; (4) Autumn had attempted to clean the house herself to

make it suitable; (5) Autumn had said she was sick when she missed visitations and that the

meth residue from the house could have made her sick; (6) the meth residue in the house

could have possibly caused Autumn’s positive drug screen; and (7) Autumn had submitted

information to DHS about a prescription medication she was taking that could have caused

the positive drug screen. Autumn’s attorney also helped clarify that Autumn was not

associated with the home’s owner, who had gone to prison on drug charges. Autumn’s

attorney argued that, at the last hearing, the court had ordered DHS to progress toward

unsupervised visitation, which it had not done. The caseworker stated that the unsuitable

home and the positive drug screen prevented DHS from moving toward unsupervised

visitation.

Rebecca Kincannon, a DHS adoption specialist, testified that B.H. was adoptable and

that there was an appropriate foster family interested in adopting him. Autumn’s attorney

cross-examined Kincannon to question her statement that she “knew the family,” revealing

that she actually had very little knowledge of the family, having only interacted with them for

the past year at a few foster-parent meetings.

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Autumn’s attorney did not call any witnesses or introduce exhibits on Autumn’s

behalf. However, she made a closing argument, stating that Autumn had complied with all

DHS requirements prior to being arrested in Texas and arguing that DHS had failed to

adequately prove that Autumn’s rights had previously been terminated as to B.H.’s siblings.

The court granted the petition to terminate parental rights as to both parents. The

court’s termination order, entered on April 27, 2015, found that Autumn had manifested the

incapacity or indifference to remedy factors or issues that had arisen subsequent to the filing

of the original petition for dependency-neglect, demonstrating that placement of the child

with Autumn would be contrary to his health and safety. Specifically, the court found that

the child was removed from Autumn’s custody at birth because she was incarcerated and

could not care for him; Autumn was properly served at the outset of the case; Autumn had

been ordered to obtain and maintain stable housing and employment and to comply with the

case plan; she paroled out of prison on August 14, 2014, and moved into a home that had

previously been operated as a meth lab and was owned by a man recently incarcerated on

drug charges; DHS had advised her that the home was inappropriate and that she would

need to relocate; on February 1, 2015, Autumn was arrested in Rockwall, Texas, and was

currently incarcerated there; she had tested positive for meth and alcohol; she had missed

several visitations with B.H.; she was likely to be incarcerated for a significant period of time;

she had failed to comply with the case plan; she had previously had her parental rights

terminated as to three of B.H.’s siblings; there was little likelihood that additional services

would result in reunification; B.H. had remained out of Autumn’s custody for over a year;

reunification could not be achieved within a time frame consistent with B.H.’s needs; and

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the DHS caseworker’s testimony was credible. The court also found that termination was in

B.H.’s best interest given the likelihood that he would be adopted and the potential harm to

his health and safety should he be returned to Autumn’s custody. Autumn filed a timely

appeal.

Autumn argues that her constitutional right to due process was violated because she

was not provided adequate notice of the termination hearing and an opportunity to

participate in the hearing. She admits that these arguments were never raised below. She

argues that, despite her admitted failure to preserve her due-process arguments, we should

allow her to present them for the first time on appeal because her attorney’s failure to raise

these issues to the trial court was ineffective assistance of counsel so flagrant and egregious

that it falls within the third exception to the preservation rule outlined in Wicks v. State, 270

Ark. 781, 606 S.W.2d 366 (1980). We disagree.

In Wicks, the Arkansas Supreme Court reaffirmed the importance of the

contemporaneous-objection rule while outlining a few finite exceptions to the rule. The third

exception “relates to the trial court’s duty to intervene, without an objection, and correct a

serious error either by an admonition to the jury or by ordering a mistrial.” Wicks, 270 Ark.

at 786, 606 S.W.2d at 369. In Wicks, the court stated that a reversal on such grounds would

be “an extremely rare exception” to the rule. Id., 606 S.W.2d at 369. We have interpreted the

third Wicks exception to mean that “no objection is required to preserve an issue for appeal

where the error is so flagrant and egregious that the trial court should, on its own motion,

have taken steps to remedy it.” Baker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 400, at 3.

Therefore, in this case, we must determine whether Autumn’s attorney’s failure to require

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proof of personal service on Autumn and failure to insist upon Autumn’s presence or

participation at the hearing were flagrant and egregious errors requiring the trial court to

intervene.

Autumn argues that she was not properly served with the termination petition. 1

Arkansas Code Annotated section 9-27-341(b)(2)(A) states that service of a termination

petition will be upon the parent’s attorney pursuant to Rule 5, unless (among other things)

the parent was not served under Rule 4 “at the initiation of the proceedings.” Here, the court

found, and Autumn has not disputed, that her attorney was served with the termination

petition under Rule 5. Autumn argues for the first time on appeal that she did not receive

proper Rule 4 service at the outset of the case, thereby necessitating Rule 4 service of the

termination petition. She claims that, because the probable-cause order only states that she

was served with notice of the probable-cause hearing by substitute service at the Wrightsville

Unit and does not specify that a copy of the notice was also mailed to her first class, marked

“legal mail,” her initial service under Rule 4 was defective. She acknowledges that she

participated in the case after the allegedly defective service, thereby waiving any objection

she may have had as to the adequacy of her original service at the outset of the case.

However, she now argues that, regardless of her waiver, improper Rule 4 service at the

outset of the case meant that DHS had to serve the termination petition on her personally

under Rule 4 rather than upon her attorney under Rule 5.

1 Autumn’s brief specifically challenges service of the petition, not notice of the
hearing. However, we note that the petition contained notice as to the date, time, and
location of the termination hearing; therefore, the issues are one and the same.
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At the termination hearing, everyone involved in the case was operating under the

understanding that Autumn was initially served under Rule 4, allowing subsequent service

under Rule 5. The court had previously found that Autumn had been properly served at the

outset of the case and again made such a finding in the termination order, and Autumn

never challenged either finding until this appeal. At the termination hearing, her attorney

stated that she (the attorney) had been served, as is allowed under Rule 5. Under those

circumstances, we cannot say that Autumn’s attorney’s lack of knowledge about whether

Autumn had also been personally served with the termination petition and notice of the

termination hearing and counsel’s failure to require proof of Rule 4 service of same were

flagrant and egregious errors that required the court to step in on its own. 2 Prior to appeal,

there was never any claim that the initial Rule 4 service was improper, so there was no basis

for requiring anything more than Rule 5 service of the termination petition on Autumn’s

attorney. We therefore disagree that Autumn’s attorney’s failure to require proof that the

termination petition was personally served on Autumn in prison presented the type of

flagrant and egregious error sufficient to invoke the third Wicks exception.

Next, Autumn argues that her absence from the hearing violated her due-process

rights, and her attorney’s failure to take any steps seeking her presence or participation at the

hearing was an error flagrant and egregious enough to fall within the third Wicks exception.

Again, we disagree. Federal courts have found that prison inmates do not have a due-process

2 As has been discussed, Rule 4 service of the termination petition on Autumn was
not required under the statute where the court had previously found that Autumn had been
properly served under Rule 4 at the outset of the case. However, although it was not
required, the DHS attorney indicated that Autumn had been served in Rockwall, Texas, with
the termination petition on February 6, 2015, in addition to Rule 5 service upon her attorney.
The court’s docket also reflects service on Autumn on February 6, 2015.
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right to be present at civil hearings. See Fruit v. Norris, 905 F.2d 1147, 1150 n.6 (8th Cir.

1990). This includes termination proceedings, as long as the inmate-parent is represented by

counsel at the hearing, the counsel participates by making evidentiary objections and cross-

examining witnesses, and the inmate has the opportunity to present testimony by deposition

or other recorded format if that testimony could influence the outcome of the proceedings.

See Cook v. Boyd, 881 F. Supp. 171, 175 (E.D. Pa. 1995); In re Interest of J.S., 470 N.W.2d 48, 52

(Iowa Ct. App. 1991).

In this case, Autumn was represented by counsel who participated at the hearing by

making evidentiary objections, cross-examining witnesses, and making a closing argument on

her behalf. Because Autumn failed to raise her due-process argument below, there has been

no development of the relevant facts, and we do not know whether she had an opportunity

to present testimony by deposition or other recorded means or if such testimony would have

influenced the outcome of the case. As a result, the only way we can address Autumn’s

underlying due-process argument is if we find that her attorney’s failure to insist upon her

presence at, or remote participation in, the termination hearing amounted to flagrant and

egregious error requiring the court to step in on its own accord. We cannot say that there

was any error that rose to that level. The trial court was presented with a situation that

appeared to comport with the well-established due-process requirements for conducting a

termination hearing in the parent’s absence. In this case, Autumn’s attorney presented her

case effectively, and it is very likely that Autumn’s deposition or recorded testimony would

not have influenced the outcome, given that it was undisputed that she had previously had

her parental rights terminated as to three of B.H.’s siblings, had ongoing drug problems, and

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was currently incarcerated and unable to care for the child. Under these circumstances, the

trial court could have reasonably assumed that all due-process safeguards had been met to

allow the termination hearing to proceed without Autumn. We cannot say that, given the

facts before it, the trial court should have stepped in and raised Autumn’s due-process

argument on its own. 3 Therefore, we hold that this issue does not fall within the third Wicks

exception, and we cannot address it due to lack of preservation.

Moreover, we note that Autumn’s ineffective-assistance-of-counsel arguments fail for

another reason: she has not demonstrated a reasonable probability that the court’s decision

to terminate her parental rights would have been different absent her attorney’s alleged

errors. See Abernathy v. State, 2012 Ark. 59, at 4, 386 S.W.3d 477, 481. Despite Autumn’s

allegations related to notice of the hearing and opportunity to participate, it is apparent that

her counsel presented Autumn’s case as well as possible, given the facts. Autumn and her

attorney had worked together on the case for several months, and her attorney demonstrated

a fairly thorough understanding of the case. We therefore disagree with Autumn’s statement

on appeal that “it appears that Autumn’s lawyer never spoke with Autumn about the

petition.” We cannot make such an inference based on the record before us. Her attorney

cross-examined each witness effectively, demonstrated that Autumn had met most of the

case-plan requirements, and provided alternative explanations for negative testimony. 4 Also,

3This is not to say that we are not troubled by the possibility that Autumn may not
have been given a full opportunity to participate in the termination hearing, only that we
cannot reach this issue due to her failure to raise it below.

4 For example, she elicited testimony that the residue from the meth house could
have caused Autumn’s positive drug screen and that the house could have made Autumn
sick, which could have explained her missed visitations.
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Autumn had previously had her parental rights terminated as to several other children, she

was incarcerated at the outset of this case and then again on new charges by the time the

court heard the termination hearing, she had no way to currently care for B.H. or do so in

the near future, she had tested positive for meth and alcohol, she had failed to obtain a safe

and appropriate home, she had missed numerous visitation opportunities with B.H., and she

provided no support for the child while he was in DHS care. Simply put, the facts

overwhelmingly favored termination of Autumn’s parental rights, and Autumn has not

demonstrated that her attorney’s alleged errors would have affected that outcome.

Finally, for the reasons just stated, we disagree with Autumn’s argument that the trial

court’s findings as to statutory grounds and best interest were clearly erroneous. The record

and the testimony provided ample support for the trial court’s findings, and we affirm.

Affirmed.

KINARD and GRUBER, JJ., agree.

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

Mischa K. Martin, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

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