Jacob EARLS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children

No. CV-17-1044

Supreme Court of Arkansas.

Opinion Delivered May 3, 2018

Dusti Standridge, for appellant.

Callie Corbyn, Office of Chief Counsel, for appellee.

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

KAREN R. BAKER, Associate Justice *545This case stems from the termination of parental rights of appellant, Jacob Earls, to his children, twins S.M. and D.M., both born on July 16, 2014. After the twins tested positive for methamphetamine, appellee, the Arkansas Department of Human Services (hereinafter "Department"), initiated dependency-neglect proceedings on July 30, 2014, and ultimately the termination-of-parental-rights proceedings that are the subject of this appeal.

On July 27, 2014, the twins were removed from their mother's custody after they tested positive for drugs. On July 31, 2014, the circuit court held a hearing, and in the subsequent order, the circuit court found that probable cause existed to remove the twins from the custody of their mother, Charity Sessums. Sessums's parental rights were also terminated and are not part of this appeal.

On April 23, 2015, the circuit court entered an adjudication-and-review order finding that the children were dependent-neglected due to the presence of controlled substances in their systems at birth. The circuit court also held that Earls was incarcerated and had been served on January 27, 2015, via service on the warden and that the Department had made reasonable efforts to provide services. The putative fathers were ordered to establish paternity.1 On May 1, 2015, the DNA test results were filed with the court, and they showed that Earls's probability of paternity was 99.99 percent. On August 28, 2015, the circuit court entered a permanency-planning order. In the order, the circuit court found that Earls had not established significant contacts with the children and his parental rights had not attached. The circuit court found that Earls was incarcerated and that his projected release date was September 7, 2015. Earls did not appeal the permanency-planning order.

On January 8, 2016, the Department filed a petition for termination. On March 30, 2016, the circuit court held a termination hearing, and on May 26, 2016, the circuit court entered the order terminating Earls's parental rights.

From the termination order, Earls timely appealed to the court of appeals, which affirmed the circuit court. *Earls v. Ark. Department of Human Services* , 2017 Ark. App. 53, 511 S.W.3d 373. On March 9, 2017, we granted Earls's petition for review and on May 11, 2017, in *Earls v. Arkansas Dep't of Human Servs.* , 2017 Ark. 171, 518 S.W.3d 81 ( *Earls I* ), we reversed and remanded this matter to the circuit court, holding that the circuit court failed to establish Earls's status as a "parent" to the twins; thus, the circuit court could not terminate Earls's parental rights. Upon remand, on June 19, 2017, the circuit court entered an order finding that Earls is the father. Subsequently, the Department filed a petition to terminate Earls's parental rights.

*546On August 4, 2017, the circuit court held a hearing on the petition to terminate Earls's parental rights. At the hearing, Earls testified that at the time of the twins' birth he was unaware of their birth. Earls further testified that in mid-August 2014, shortly after their birth, he was incarcerated for failure to register as a sex offender. Earls testified that he had been given an assessment level of 3. Earls testified that when he was 21 years old he had sex with a 13-year-old girl, and was charged with sexual assault in the third degree, entered a negotiated plea, and ultimately was sentenced to five years' imprisonment for his failure to register as a sex offender. Earls testified that he has been incarcerated since August 2014 and has never seen the twins. Earls testified that he was unable to complete any services the Department offered outside prison due to his incarceration. Earls further testified that he had completed classes while incarcerated: a parenting class, an anger-management class, thinking-errors class, and a communication-skills class. Earls testified that he has received mental-health counseling every two weeks at the prison since his incarceration. At the time of the hearing in August 2017, Earls testified that he believed he would be released from incarceration by October 2017. Earls further testified that he was ready to raise the twins and care for them upon his release from prison. Earls testified that he planned to move to Stuttgart and live in an apartment or a rent house owned by his aunt and uncle who live in Stuttgart and also to work for their business, Rice Capital, Inc. Earls testified that if his plans for Stuttgart did not work out, his plan was to move to Little Rock. Earls testified that he planned to live alone in Stuttgart or Little Rock and assumed that his family would be able to help him care for the twins. However, Earls testified that he had not visited with family members about caring for the twins. Earls further testified that he had incurred three separate disciplinary infractions since incarcerated for use of synthetic marijuana. Earls further testified that he acquired additional disciplinary infractions for failure to obey and for insolence to a staff member. Therefore, Earls had been ineligible for early release.

Kandi Tarpley, a caseworker with the Department's office in Greene County, testified she was the caseworker for the twins' case and met with Earls and went over the case plan. Tarpley further testified that she was not aware of any persons or family members that Earls had suggested the twins be placed with. Tarpley testified that it would be harmful to place the twins with Earls because he was currently incarcerated and did not have solid plans for housing or income upon his release. She further testified that even if he had housing and income, placement with Earls would require more services because he was a level three sex offender, and Tarpley did not believe offering Earls more services would result in the twins being placed with Earls. Tarpley further testified that the twins had been found to be adoptable and that their foster parents would like to adopt the twins; she believed it to be in the best interest of the twins to terminate Earls's parental rights and to allow the children to be adopted. Tarpley also testified that the Department had not offered services to Earls because of his incarceration. Tarpley further testified concerning Earls's conduct in a prior case in which he was named as the father and it was determined that Earls had a substance-abuse problem. Tarpley testified that she was not aware whether Earls had resolved those problems and additional services would be required to help Earls deal with those issues. Tarpley also testified that additional services would be required for the twins to be placed with *547Earls due to his sex-offender status and that "it would take a while before these twins would be ready to be placed with him, if at all." Tarpley further testified that because of Earls's incarceration he has not been able to work with family services; also, Earls has not met the twins, and the twins needed permanency.

At the hearing and in its written order on September 25, 2017, the circuit court terminated Earls's parental right to the twins, finding as follows:

> Other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in custody

> of the father is contrary to the juveniles' health, safety, or welfare that that, despite the offer of appropriate family services, the father has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the father's circumstances that prevent placement of the juveniles in the custody of the father. Ark. Code Ann. § 9-27-341(b)(3)(vii)(a).

> ....

> Specifically, Jacob Earls does not have a relationship with the children. Mr. Earls has not seen, met, talked to, or sent letters to these children. Mr. Earls did not contribute to dependency-neglect, but was unavailable to take custody of the children at the time of the removal. Mr. Earls did not remedy the circumstances which made him unavailable at the time of the removal. Mr. Earls has been incarcerated since October, 2014, which is a substantial period of the juveniles' lives. Mr. Earls has not requested services from the Department since he has been incarcerated. The length of time it would require for Mr. Earls to be released from prison, and then complete services to make himself available for custody of the juveniles is inappropriate.

> ....

> The Court finds by clear and convincing evidence that it is in the best interest of the juveniles to terminate the parental rights of the father, Jacob Earls. In making this finding, the Court specifically considered the likelihood that the juveniles will be adopted if the termination petition is granted and the potential harm on the health and safety of the juveniles which would be caused by placing custody of the juveniles with the father. The Court finds that placing custody of the juveniles with Jacob Earls would be harmful to the juveniles's health and safety due to: Jacob Earls being incarcerated for a substantial period of the children's lives, he continues to be incarcerated, that he is a level three sex offender, he failed to register as a sex offender, his conduct during his incarceration, his past history of substance abuse, it is unknown if he still has substance abuse issues, and that he has no relationship with these children. The court found these children to be adoptable in a previous order in this case, and constitutes [sic] that these children are adoptable.

> ....

The Court finds that the Arkansas Department of Human Services made reasonable efforts to finalize the permanent placement of the juveniles and the juveniles cannot or should not be placed in the custody of the father.

On appeal, Earls asserts that the circuit court erred in finding that the statutory grounds for termination of his parental rights had been met under Ark. Code Ann. § 9-27-341 (Supp. 2017) and presents five issues on appeal: (1) the circuit court erred in finding termination of parental rights was met based on the 12-month non-custodial *548requirement; (2) the circuit court erred in finding termination of parental rights was met based on the subsequent-factors-grounds; (3) the circuit court erred in finding termination of parental rights was met based on the aggravated circumstances; (4) the circuit court erred in finding termination of parental rights was met based on the substantial period of incarceration; and (5) the circuit court erred in finding termination of parental rights was met in the best interest of the children.

II. *Standard of Review*

Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. *Crawford v. Ark. Dep't of Human Servs.* , 330 Ark. 152, 951 S.W.2d 310 (1997). In cases involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. *See**Bush v. Dietz* , 284 Ark. 191, 680 S.W.2d 704 (1984). Termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. *L.W. v. Ark. Dep't of Human Servs.* , 2011 Ark. App. 44, 380 S.W.3d 489. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the juvenile's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A).

Further, we review termination-of-parental-rights cases de novo. *Dinkins v. Ark. Dep't of Human Servs.* , 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination of parental rights must be proved by clear and convincing evidence. *M.T. v. Ark. Dep't of Human Servs.* , 58 Ark. App. 302, 952 S.W.2d 177 (1997). The question on appeal is whether the circuit court's finding that a disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit court to judge the credibility of the witnesses. *Id.* A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. *Dinkins, supra.* Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. *Baker v. Ark. Dep't of Human Servs.* , 340 Ark. 42, 8 S.W.3d 499 (2000).

The following statutes are applicable to Earls's appeal. First, Ark. Code Ann. § 9-27-102"Best Interest of the Child" provides:

> The General Assembly recognizes that children are defenseless and that there is no greater moral obligation upon the General Assembly than to provide for the protection of our children and that our child welfare system needs to be strengthened by establishing a clear policy of the state that the best interests of the children must be paramount and shall have precedence at every stage of juvenile court proceedings. The best interest of the child shall be the standard for juvenile court determinations as to whether a child should be reunited with his or her family or removed from or remain in a home wherein the child has been abused or neglected.

1

Kevin Myers, Bobby Lindsey, and Jacob Earls are all listed on the pleadings as putative fathers.

Second, Ark Code Ann. Ark. Code Ann. § 9-27-341 provides in pertinent part:

> (3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:

> (A) That it is in the best interest of the juvenile, including consideration of the following factors:

> *549(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and

> (ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent, parents, or putative parent or parents; and

> (B) Of one (1) or more of the following grounds:

> ....

> (vii)*(a)* That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in 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 the placement of the juvenile in the custody of the parent.

Finally, with regard to establishing grounds for termination of parental rights, Ark. Code Ann. § 9-27-341"Termination of Parental Rights," requires that only one ground must be met to terminate parental rights. *See**Wade v. Ark. Dep't of Human Servs.* , 337 Ark. 353, 359, 990 S.W.2d 509, 513 (1999).

III. *Points on Appeal*

With these standards in mind, we turn to the circuit court's order that Earls challenges on appeal. Earls challenges four statutory grounds for termination and the circuit court's best-interest findings.

A. Subsequent Factors

Earls asserts that the circuit court erred in finding that the subsequent factors grounds had been met contending that no services were offered to Earls and Earls did not manifest an incapacity or indifference to rehabilitate his circumstances.

Here, the record demonstrates that Earls does not have a relationship with the children; Earls has not seen, met, sent letters, or talked to these children. Earls was unavailable to take custody of the children when they were removed from their mother. Earls has been incarcerated for all but two months of the twins' lives. Since the filing of the original petition, Earls has been incarcerated for his failure to register as a sex offender after he entered a plea for having sex with a thirteen-year-old girl. The record further demonstrates that Earls did not request services from the Department, and because of his incarceration, there were no services that the Department could offer. Additionally, Earls has been eligible for early release since 2015, but because of his disciplinary infractions-use of synthetic marijuana, failure to obey, and insolence to a staff member-he was deemed not eligible for early release. Also, Earls does not have a plan for housing or employment upon his release.

In sum, the record demonstrates that Earls failed to address the subsequent factors that occurred. In this case, the twins were three years old at the August 2017 hearing, and Earls testified that he had never seen the twins or made contact with them. With the exception of two months, Earls has been unavailable to the twins their entire lives, and at the time of the hearing he had approximately two years remaining on his sentence before he would be considered for release from incarceration. While incarceration is not, in and of itself, conclusive on the termination issue, imprisonment does not toll a parent's responsibilities toward his or her children.

*550*Linker-Flores v. Ark. Dep't of Human Servs.* , 364 Ark. 224, 217 S.W.3d 107 (2005). Further, his conduct during his incarceration, his history of substance abuse, the unknown status of his current substance-abuse issues, his lack of secured housing and income, and his lack of relationship with the twins were contributing factors in support of the circuit court's decision.

Having conducted a de novo review of all the relevant evidence, we conclude that the circuit court did not clearly err in terminating Earls's parental rights on the subsequent-factors ground regarding the twins. Earls's imprisonment does not toll his responsibilities as a parent toward his children. *See**Zgleszewski v. Zgleszewski* , 260 Ark. 629, 542 S.W.2d 765 (1976). Here, Earls has manifested the incapacity or indifference to remedy the subsequent factors or rehabilitate his circumstances. Accordingly, based on our standard of review and the record before us, we affirm the circuit court.

B. Best Interest of the Children

Earls further challenges the circuit court's finding that the termination of his parental rights to the twins was in their best interest. "The two factors to consider in determining best interest are the likelihood of adoption and potential harm caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)." *Brumley v. Arkansas Department of Human Services* , 2015 Ark. 356 at 10, 2015 WL 5895440. Here, Earls does not challenge the adoptability finding. Further, the record supports adoptability as Tarpley testified that the twins were adoptable, their foster parents would like to adopt them, and the circuit court entered an order finding that they are adoptable. Thus, we conclude that the adoptability prong has been satisfied.

Earls challenges the circuit court's finding of potential harm. "The potential-harm analysis must be conducted in broad terms, including the harm the child suffers from the lack of stability in a permanent home." *Id.* (internal citations omitted). The circuit court found that that placing custody of the twins with Earls would be harmful to the twins' health and safety due to Earls's incarceration for a substantial period of the children's lives, his continued incarceration, his level three sex-offender status, his failure to register as a sex offender, his conduct during his incarceration, his history of substance abuse, the unknown status of his substance-abuse issues, and his non-existent relationship with his children. The circuit court also found that the twins were adoptable in a previous order in this case, and found that the twins remain adoptable. Earls challenges this best-interest finding, alleging that the circuit court erred because Earls provided a list of relatives who could care for his children while they awaited his release from incarceration, which "should only be one or two months"; and therefore, the potential-harm factor had not been satisfied. We disagree.

Here, at the termination hearing, the twins were three years old and Earls had not met, contacted, or sought visitation with the children. The twins have been in the Department's custody their entire lives, and Earls takes the position that he will be out in a month or two and when he is released, he could then seek services to ready himself for parenthood, secure steady income and locate housing. Earls testified that relatives would care for the children, but he also testified that he had not had any discussions with relatives about caring for the twins. Further, Earls testified that he remains incarcerated, is unsure of his release date and had not secured stable housing and employment.

*551Additionally, Tarpley testified that Earls had not provided her with a list of relatives willing to care for the twins.

As discussed above, permanency is the objective of the termination procedure and cannot be lightly discounted. *Bearden v. Ark. Dep't of Human Servs.* , 344 Ark. 317, 42 S.W.3d 397 (2001). Here, we conclude that the evidence of potential harm, combined with the children's adoptability, supports the circuit court's ruling that termination of Earls's parental rights is in the twins' best interest.

Affirmed.

Hart, J., dissents.

Josephine Linker Hart, Justice, dissenting.

I wish to make it very clear that, in my view, the circuit court did not err in refusing to immediately give Mr. Earls custody of the minor children. However, I am unable to conclude that Mr. Earls has been afforded his fundamental right to due process, as embodied in this State's juvenile code, specifically the termination-of-parental-rights statute, Arkansas Code Annotated section 9-27-341. Moreover, I question whether termination of parental rights, which necessarily also involves the termination of parental obligations is appropriate in all but the most extreme cases. By terminating Mr. Earls's parental rights, the State of Arkansas has excused him from being financially responsible for his children. Accordingly, I dissent.

I will not dispute that Mr. Earls has, in the past, demonstrated a remarkable level of personal and parental irresponsibility. His own testimony confirmed that he is a convicted sex offender, currently serving a prison sentence for failure to register as a sex offender, a former substance abuser, a seventh-grade dropout, and a serial noncustodial parent-he has three other children, one who is twenty-one and two others who are being cared for by family members. Nonetheless, I must dissent from the termination of what is euphemistically called Mr. Earls's "parental rights."

A value judgment about whether Mr. Earls would be a good parent or not, however well-founded, does not excuse the circuit court from ensuring that he was given due process. The history of this case arguably demonstrates that Mr. Earls was denied his due process rights. In *Earls I* , we noted that he did not receive assistance of counsel until the termination hearing. *Earls v. Ark. Dep't Human Servs.* , 2017 Ark. 171, 518 S.W.3d 81. In fact, DNA testing had conclusively established nearly a year earlier that Mr. Earls is the father of the twins. We reversed and remanded the case because, the circuit court terminated Mr. Earls's parental rights based on the children being out of his home for twelve months and his failure to remedy the cause for removal, in spite of the fact there was no evidence in the record that established when Mr. Earls's status as a parent "attached." *Id.*2017 Ark. at 11, 518 S.W.3d at 88. It was only after this court reversed and remanded the case did the circuit court enter an order of paternity.

The circuit court's second decision to terminate Mr. Earls's parental rights manifest an even more egregious deprivation of his due-process rights. The circuit court based its decision on three separate grounds, one of which-that Mr. Earls was sentenced to a substantial period of incarceration-was not asserted in the termination petition that ADHS had filed.2 Mr. *552Earls argues persuasively that these grounds lacked evidentiary support in the record, which the majority tacitly acknowledges by refusing to affirm the circuit court on any of the three grounds that it relied on.

Nonetheless, the majority has affirmed "on de novo review," justifying its decision on a ground it calls "failure to address subsequent factors," which I cannot find in Arkansas Code Annotated section 9-27-341. In its fact-finding, the majority has concluded that this ground is proved by Mr. Earls's "conduct during his incarceration, his history of substance abuse, the unknown status of his current substance-abuse issues, his lack of secured housing and income, and his lack of relationship with the twins." While these facts may be relevant in an analysis of whether termination of his parental rights is in the children's best interest, it simply does not correspond to the grounds set forth in section 9-27-341.3

*553Again, I wish to emphasize that I am not suggesting that Mr. Earls be given physical custody of his children while he is incarcerated, or at any time in the foreseeable future. I do however believe that ADHS failed to consider less drastic alternatives than termination of his parental rights, like relative placement. Mr. Earls provided a list of relatives that ADHS completely ignored.

There are many compelling reasons for requiring ADHS to exhaust the possibility of placing children with relatives. Not the least of these reasons is that a parent has a fundamental constitutional right to parent his or her children without undue government interference. *Troxel v. Granville* , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). I firmly believe in the wisdom of this decision. If given an opportunity, the state could always find a "better" parent-one that has more money, a better education, a nicer home, the "right" views on child rearing, etc. However, in practice, termination of parental rights in favor of stranger adoption is not the panacea that the majority seems to believe it is. *See, e.g.* , *Taffner v. State* , 2018 Ark. 99, 541 S.W.3d 430. In my view, there is nothing inherently wrong with an ongoing protective-services case; the state has innumerable ways of protecting the health and safety of children "in the system." When ADHS closes a case, not so much.

Finally, in my view, termination of parental rights is fundamentally contrary to the interests of society as a whole. Concomitant with the termination of parental rights is a termination of parental responsibility. Mr. Earls has never been required to be financially responsible for the twins. Instead, that burden has been shifted to the taxpayers. Foster parents receive a monthly check for the children that they house. Even after the children are adopted, the state pays a subsidy if multiple siblings are involved, if the child is older than a toddler, or if the child has "special needs." Additionally, the taxpayers of this state pay for the child's-or in this case, the children's-healthcare.

To Mr. Earls's credit, he took steps to acknowledge his paternity and ultimately accept responsibility for fathering these children. In my view it is quite elegiac that an agency of this state-and the courts-has declined to accept his offer. It is unjust to shift the burden of caring for an able-bodied man's children, when responsible parents in this state are struggling to care for their own children.

I respectfully dissent.

2

The circuit court made the following findings:

> a. Other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in the custody of the father is contrary to the juveniles' health, safety, or welfare and that, despite the offer of appropriate family services, the father has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the father's circumstances that prevent the placement of the juveniles in the custody of the father. Ark. Code Ann. § 9-27-341 (b)(3)(vii)(a).

> b. Jacob Earls is found by this Court to have subjected the juveniles to aggravated circumstances in that there is little likelihood that further services to the family will result in successful reunification. The Court finds that no additional services to the father will promote reunification.

> c. Jacob Earls has been sentenced in a criminal proceeding for a period of time which would constitute a substantial period of the juveniles' life A.C.A. § 9-27-341(b)(3)(B)(viii)(a).

> THE PETITION IS AMENDED TO REFLECT THIS FINDING.

> d. Specifically, Jacob Earls does not have a relationship with the children. Mr. Earls has not seen, met, talked to, or sent letters to these children. Mr. Earls did not contribute to the dependency-neglect, but was unavailable to take custody of the children at the time of the removal. Mr. Earls did not remedy the circumstances which made him unavailable at the time of the removal. Mr. Earls has been incarcerated since October of 2014, which is as a substantial period of the juveniles' lives. Mr. Earls has not requested services from the Department since he has been incarcerated. The length of time it would require to wait for Mr. Earls to be released from prison, and then complete services to make himself available for custody of the juveniles is inappropriate.

3

I am mindful that Arkansas Code Annotated section 9-27-341 was amended in 2015 to add the following ground:

> (b) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home of the noncustodial parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that prevented the child from safely being placed in the parent's home, the conditions have not been remedied by the parent.

However, this ground for termination is dependent on the 2015 amendment to section 9-27-327, which concerns dependency-neglect adjudications, and contains the following language:

> (B)(i) If the court finds that the juvenile is dependent-neglected, the court shall address whether a noncustodial parent contributed to the dependency-neglect and whether the noncustodial parent is a fit parent for purposes of custody or visitation.

> (ii) If the court determines that the child cannot safely be placed in the custody of the noncustodial parent, the court shall make specific findings of fact regarding the safety factors that need to be corrected by the noncustodial parent before placement or visitation with the juvenile.

However, Mr. Earls was not identified as a parent at the time of adjudication. Accordingly, the circuit court made no "specific findings" regarding the "safety factors" that Mr. Earls was required to correct in order for ADHS to place the twins with him. Moreover, it is undisputed that ADHS made *no effort* to assist Mr. Earls in any way.