Edwards v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 37

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-650

Opinion Delivered January 20, 2016

MICHAEL EDWARDS APPEAL FROM THE MISSISSIPPI
APPELLANT COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT
V. [NO. JV-14-27]

ARKANSAS DEPARTMENT OF HONORABLE RALPH WILSON, JR.,
HUMAN SERVICES and MINOR JUDGE
CHILD
APPELLEES
AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Michael Edwards appeals the termination of his parental rights to his

daughter A.E. (born July 11, 2012).1 Appellant argues on appeal that (1) Arkansas Department

of Human Services (DHS) and the attorney ad litem failed to demonstrate that termination

was in A.E.’s best interest, (2) the evidence was insufficient to establish at least one available

ground for termination, and (3) appellant’s “due process rights were violated where he was

incarcerated and not given an opportunity to participate in the proceeding concerning his

child.” We affirm.

A call was made to the Arkansas Child Abuse Hotline on February 26, 2014, stating

that A.E. had approximately twenty bruises at different stages of healing. Appellant was

1
A.E.’s mother, Michelle Edwards, consented to the termination of her parental rights
and is not a part of this appeal.
Cite as 2016 Ark. App. 37

incarcerated at this time, and A.E. was in the custody of her mother, Michelle Edwards. A.E.

was taken for a health-and-safety assessment at Le Bonheur in Memphis, Tennessee, where

it was discovered that she had two skull fractures, multiple bruising, and internal injuries.

A.E.’s perpetrator was unknown. A seventy-two hour hold was taken on March 1, 2014, due

to severe maltreatment and substantial risk of serious harm. DHS subsequently petitioned for

emergency custody of A.E., who was approximately nineteen months old at the time. The

court entered an ex parte order for emergency custody on March 11, 2014. The court

entered a probable-cause order on April 23, 2014, finding that the emergency conditions

which necessitated removal still existed and ordering A.E. to remain in the custody of DHS.

On May 5, 2014, Donna Baker, A.E.’s paternal grandmother, filed a petition for

guardianship of A.E. Attached to the petition was a handwritten letter signed by both

appellant and Michelle on December 28, 2012, granting Baker permission to take temporary

custody of A.E. if they were absent and/or unable to care for A.E. DHS and the attorney ad

litem filed a joint petition for termination of parental rights on May 19, 2014. The petition

stated the following in relation to appellant:

d. That the father, Michael Edwards, is currently incarcerated in the Morgan County
Correctional Facility located in Wartburg, TN. That he is not expected to be released
anytime in the near future.

e. That the father has abandoned the child as defined in Arkansas Code Annotated
Section 9-27-303.

A continuance order was entered on May 19, 2014, continuing the case for good cause to

June 23, 2014. Appellant was appointed counsel in an order filed on June 5, 2014. On that

same date, appellant filed an answer to the termination of parental rights petition. In the

2
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answer, he affirmatively pled “lack of service of process and any and all defenses and

affirmative defenses set forth under Arkansas Civil Procedure Rules 8 and 12.” He also filed

a motion for transport order on June 5, 2014, so that he could be present at a hearing set for

June 10, 2014. The court denied the motion on June 10, 2014, and the order was filed on

June 23, 2014. The adjudication hearing took place on July 2, 2014. A.E. was adjudicated

dependent-neglected based on “inadequate supervision and failure to protect due to the

extent, nature, seriousness and the location of the injuries on the minor child and extreme

physical abuse by Herbert McCaig.”2 The goal of the case was adoption and termination of

parental rights. The adjudication order noted the appellant had been served by green card on

May 27, 2014.

In the review order filed on October 14, 2014, the court noted that an approved ICPC

Placement letter on Baker was entered into evidence. The court granted Baker unsupervised

alternating weekend visitation. On December 19, 2014, Paul and Tiffany Strong, A.E.’s foster

parents, filed a motion to intervene. They also filed petitions for adoption and guardianship.

Baker objected to the motion to intervene on January 12, 2015. DHS sought to have the

Strongs’ motion and petitions dismissed in responses filed on January 15, 2015. The Strongs

filed an amended petition for adoption on March 17, 2015. Baker sought to have the petition

dismissed in a response filed on March 24, 2015.

Appellant filed a motion for continuance on March 31, 2015. The motion stated that

appellant would be paroled on November 24, 2015, and that there were “no allegations

2
McCaig was Michelle’s boyfriend.

3
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against the defendant Michael Edwards except for that he is incarcerated.” Attached to the

motion was an offender sentence letter, which reflected that appellant began an eight-year

sentence on July 7, 2013, and that his release eligibility date was November 24, 2015. The

letter also showed that the full expiration date of appellant’s sentence was June 29, 2021.

Appellant filed a pro se letter with the court on March 31, 2015. He attached a certificate of

completion for a Pro-Social Life Skills Program.

The court entered an order granting the Strongs’ motion to intervene on April 20,

2015. The order from a placement hearing held on January 30, 2015, was filed on May 18,

2015. In that order, the court acknowledged that Donna and Shad Baker had an approved

ICPC home study through the state of Tennessee. The court found that it was in A.E.’s best

interest to remain in the home with the Strongs, stating that “there is more stability and

continity of care and more structure and routine with Paul and Tiffany Strong. The Strong’s

[sic] are a more traditional family . . . and they have had physical custody of [A.E.] in excess

of nine months.” The order further stated:

7. There is pending termination of parental rights petitions. The grandparents’ rights
are derivative of the parents’ constitutional and legal rights. If the parents’ rights are
severed or terminated, then the rights of the grandparents are also severed by law. The
court finds it is awkward and not in the child’s best interest to be placed with the
grandparents prior to the court addressing the termination of parental rights petitions.

8. [A.E.] should remain with Paul and Tiffany Strong. The placement request of Mr.
and Mrs. Baker is hereby denied.

9. With regard to the visitation previously awarded to Mr. and Mrs. Baker, same is
modified herein. Over the objection of the attorney ad litem, the Bakers shall
continue to have alternate Saturday visitations. The visitations shall be from 10 a.m.
to 4 p.m. pending further orders of the court.

4
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10. Based upon the agreed stipulation of the [Bakers], through counsel, [and] the
Court that the Baker’s [sic] will submit to a hair follicle test.

The termination hearing took place on April 15, 2015. Appellant was not present for

the hearing, although his attorney was present. The court addressed appellant’s motion for

continuance at the beginning of the hearing. Appellant’s attorney asked the court to continue

the case “to allow [appellant] to be released and have an opportunity to work the plan.” The

attorney further stated that the “allegations that brought the child in to Court really has

nothing to do with my client, other than the fact that he is incarcerated.” The court denied

the motion “finding that the Statute requires that the Court consider hearings and the

timeliness of the hearings as from the viewpoint of a child rather than from the parent’s

convenience.”

Sylvia Ware, a family service worker supervisor with DHS, testified that she became

involved with the case on January 26, 2015. She stated that she had not had any contact with

appellant, and that appellant had been incarcerated throughout the duration of the case. She

said that she was unaware of any contact with or support of A.E. by appellant. She opined

that A.E. was adoptable and that termination was in A.E.’s best interest. She testified that

A.E. had been in foster care since coming into DHS’s custody. She stated that appellant had

not provided anything to DHS in regards to A.E. and that, to her knowledge, he had not

provided anything to his parents to give DHS.

5
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Appellant’s attorney did not call any witnesses during the termination hearing. At the

conclusion of the hearing, the court granted DHS’s petition to terminate appellant’s parental

rights.3 The termination order was entered on May 26, 2015. It stated in pertinent part:

The juvenile has lived outside the home of the father for more than twelve (12)
months; the father has not visited the minor child and has failed to provide support or
contact with the juvenile. Ark Code Ann. § 9-27-341(b)(3)(B)(ii)(a).

The father is currently incarcerated and sentenced in a criminal proceeding for a period
of time that would constitute a substantial period of the child’s life. Ark. Code Ann.
§ 9-27-341(b)(3)(B)[viii].

Appellant filed a timely notice of appeal on June 4, 2015. This timely appeal followed.

On appeal, appellant argues that (1) DHS and the attorney ad litem failed to

demonstrate that termination was in A.E.’s best interest, (2) the evidence was insufficient to

establish at least one available ground for termination, and (3) his due process rights were

violated where he was incarcerated and not given an opportunity to participate in the

proceeding concerning his child.

We review termination-of-parental-rights cases de novo.4 At least one statutory

ground must exist, in addition to a finding that it is in the child’s best interest to terminate

parental rights; these must be proved by clear and convincing evidence.5 The question we

must answer on appeal is whether the circuit court’s finding that the disputed fact was proved

3
Michelle signed a consent to the termination of her parental rights at the beginning
of the hearing.
4
Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
5
Ark. Code Ann. § 9-27-341 (Supp. 2013).
6
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by clear and convincing evidence is clearly erroneous.6 In determining whether a finding is

clearly erroneous, we give due deference to the opportunity of the circuit court to judge the

credibility of the witnesses.7

Termination of parental rights is an extreme remedy and in derogation of the natural

rights of the parents.8 Parental rights, however, will not be enforced to the detriment or

destruction of the health and well-being of the child.9 The intent behind the

termination-of-parental-rights statute is to provide permanency in a child’s life when it is not

possible to return the child to the family home because it is contrary to the child’s health,

safety, or welfare, and return to the family home cannot be accomplished in a reasonable

period of time as viewed from the child’s perspective.10

An order terminating parental rights must be based on the court’s finding by clear and

convincing evidence that termination is in the best interest of the juvenile, taking into

consideration that (1) the likelihood that the juvenile will be adopted if the termination

petition is granted and (2) the potential harm caused by returning the child to the custody of

the parent.11 However, adoptability and potential harm are merely factors to be

considered—they are not elements of the cause of action and need not be establish by clear

6
Fields v. Ark. Dep’t of Human Servs., 104 Ark. App. 37, 289 S.W.3d 134 (2008).
7
Matlock v. Ark. Dep’t of Human Servs., 2015 Ark. App. 184, 458 S.W.3d 253.
8
Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 252 S.W.3d 138 (2007).
9
Id.
10
Ark. Code Ann. § 9-27-341(a)(3).
11
Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii).
7
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and convincing evidence.12 Rather, after considering all of the factors, the trial court must

find by clear and convincing evidence that termination of parental rights is in the best interest

of the children.13 The harm referred to in the statute is “potential” harm, the trial court is

not required to find that actual harm will result or to affirmatively identify a potential harm.14

Moreover, evidence on this factor must be viewed in a forward-looking manner and

considered in broad terms.15 The trial court must also find by clear and convincing evidence

the existence of a statutory ground for termination.16

In arguing that DHS and the attorney ad litem failed to demonstrate that termination

was in A.E.’s best interest, appellant contends that he was not the cause of A.E.’s injuries, that

he was not found to be unfit, and that he did not pose any danger to A.E. DHS concedes

these facts. In addition, appellant argues that A.E. was not dependent-neglected because, prior

to his incarceration, he arranged for his mother to take care of A.E. in his absence, and that

his mother should have been given preference under Ark. Code Ann. § 9-27-355. Appellant

further argues that termination was not in A.E.’s best interest because it adversely affected

A.E.’s relationship with his mother. DHS contends that appellant’s argument concerning his

mother being a fit and willing caregiver goes beyond sufficiency and is not preserved because

12
Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 251.
13
Id.
14
Id.
15
Id.
16
Ark. Code Ann. § 9-27-341(b)(3)(B).
8
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it was not raised below. We agree. To the extent that appellant argues that his mother

should have been given preference in place of termination of parental rights, appellant failed

to appeal from the order setting the goal of the case to termination of parental rights and

adoption.17

Despite appellant’s contention, there was evidence that termination of his parental

rights was in A.E.’s best interest. He had been incarcerated throughout the life of the case.

There was no evidence that he had any contact with the child during his incarceration.

Although he was set to be paroled, according to his attorney, in November, that was seven

months after the termination hearing and he still required time to get out and work the plan.

Even assuming that appellant would be released when he hoped, he would not be able to

immediately reunite with A.E. Viewed from A.E.’s perspective, who was less than three years

old, termination of parental rights was in her best interest so that she could achieve

permanency and not have to wait in limbo for possible reunification with appellant.18

To the extent that appellant argues that termination adversely affected A.E.’s

relationship with his mother, there was no evidence of the nature and extent of the

relationship A.E. shared with appellant’s mother. Although appellant’s mother had been

granted unsupervised visitation, that visitation had been modified. And at the time of the

termination hearing, appellant’s mother had not seen A.E. for ten weeks because she thought

that she had to submit a negative hair follicle test before continuing visitation. Therefore, this

17
See Chafin v. Ark. Dep’t of Human Servs., 2011 Ark. App. 496.
18
See Adams v. Ark. Dep’t of Human Servs., 2013 Ark. App. 263.
9
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case is unlike the situation in Caldwell v. Ark. Dep’t of Human Servs.,19 where this court

concluded that, because the child remained in the permanent care of her biological mother,

termination of her father’s parental rights would not achieve permanency, and that

preservation of the child’s relationship with her paternal grandparents weighed against

termination. Here, the parental rights of both of A.E.’s parents were being terminated, and

appellant failed to demonstrate a close bond between A.E. and his mother. We are not

persuaded by appellant’s argument, and we hold that the court did not clearly err when it

found that termination of appellant’s parental rights was in A.E.’s best interest.

Next, appellant argues that the evidence was insufficient to establish at least one

available ground for termination. According to appellant, the termination petition failed to

plead either ground employed by the court at the hearing, so both grounds should be

excluded. DHS concedes that one ground found by the court for terminating appellant’s

parental rights was not pled and should not be considered. Although appellant admits that the

termination petition had a sentence in it that stated that he was incarcerated and not expected

to be released in the near future, he contends that this was not enough to place him on notice

that his parental rights were subject to termination based upon the substantial-incarceration

ground. In addition, he argues that even if the ground was sufficiently pled to place him on

notice, there was no sufficient evidence to support that ground because DHS and the ad litem

did not produce any evidence or proof of his sentence. These arguments are without merit.

19
2010 Ark. App. 102.
10
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Appellant never raised an argument about lack of notice or failure to plead grounds

properly below. In fact, his attorney stated that the only evidence against appellant was his

incarceration. To the extent that appellant argues that evidence of his sentence had to be

placed into evidence by DHS or the ad litem, he is mistaken. Evidence of the length of his

sentence was properly before the court in the form of appellant’s motion for a continuance.

The sentence letter attached to appellant’s motion showed that appellant had been sentenced

to eight years’ imprisonment in July 2013. The court addressed and denied appellant’s motion

at the beginning of the termination hearing. Termination of parental rights is warranted if the

parent is sentenced to a criminal proceeding for a period of time that would constitute a

substantial period of the juvenile’s life.20 It is the prison sentence itself, not the potential

release date, that determines whether this statutory ground is satisfied.21 Here, appellant was

sentenced to eight years’ imprisonment. This is a substantial period of time for a child less

than three years of age. Accordingly, we affirm this ground for termination.

Finally, appellant argues that his due process rights were violated because he was not

given an opportunity to participate in the proceeding concerning his child due to his

incarceration. This argument focuses on both the placement hearing and the termination

hearing. However, this argument was not raised below and is not properly before us.

Appellant contends that he should have been allowed to participate at the termination hearing

and that the lack of his presence at that hearing should be a Wicks exception.

20
Ark. Code Ann. § 9-27-341(b)(3)(B)(viii).
21
Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356.
11
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In Wicks v. State,22 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.”23 In Wicks, the

court stated that a reversal on such grounds would be “an extremely rare exception” to the

rule.24 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.”25 Therefore, in this case, we must

determine whether appellant’s absence from the termination hearing was a flagrant and

egregious error requiring the trial court to intervene. Federal courts have found that prison

inmates do not have a due-process right to be present at civil hearings.26 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.27

22
270 Ark. 781, 606 S.W.2d 366 (1980).
23
Wicks, 270 Ark. at 786, 606 S.W.2d at 369.
24
Id., 606 S.W.2d at 369.
25
Baker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 400, at 3.
26
See Fruit v. Norris, 905 F.2d 1147, 1150 n.6 (8th Cir. 1990).
27
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).
12
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Here, although appellant was not present, his attorney fully participated during the

hearing. There is no indication that appellant’s due-process rights could not have been

safeguarded in his absence. Therefore, there was no reason for the court to step in on its own

motion and raise appellant’s due-process argument. Thus, this does not fall within the third

Wicks exception, and we cannot address it due to lack of preservation.28

Additionally, appellant contends that his due-process rights were violated because he

was not properly served with notice of the petition for termination of his parental rights.

Although appellant raised improper service of process in his answer to the termination

petition, he never raised it again. His attorney appeared at the termination hearing on

appellant’s behalf and participated fully without ever objecting to lack of service. Therefore,

any argument concerning service was waived.29

Affirmed.

GLADWIN, C.J., and ABRAMSON, J., agree.

Tabitha B. 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.

28
See Vogel v. Ark. Dep’t of Human Servs., 2015 Ark. App. 671, ____ S.W.3d ____.
29
See Trelfa v. Simmons First Bank of Jonesboro, 98 Ark. App. 287, 254 S.W.3d 775
(2007).
13