Rogers v. Arkansas Department of Human Services , 2017 Ark. App. LEXIS 526 ( 2017 )

Cite as 2017 Ark. App. 469ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-295
Opinion Delivered September 20, 2017
BURT ROGERS APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66FJV-13-582]
HONORABLE LEIGH ZUERKER,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
APPELLEES AFFIRMED
LARRY D. VAUGHT, Judge
Burt Rogers appeals the Sebastian County Circuit Court’s order terminating his parental
rights to his daughter, A.B. (born July 25, 2007). His sole challenge to the termination order is
that there was insufficient evidence of the statutory ground supporting the termination. We
affirm.
A.B.’s case originated with a referral to the child-abuse hotline due to concerns a
hospital had regarding the care A.B.’s mother, Markita Bell, was providing to A.B.’s newborn
sister, L.B. Thereafter, the Arkansas Department of Human Services (DHS) removed L.B.
from the custody of Bell and filed a petition for emergency custody and dependency neglect
on October 7, 2013. DHS filed an amended petition for emergency custody and dependency-
neglect on November 12, 2013, adding A.B. as a dependent juvenile; however, A.B. was not
removed from Bell’s custody. Quincy Johnson was listed as A.B.’s putative father.
Cite as 2017 Ark. App. 469On December 10, 2013, L.B. was adjudicated dependent-neglected at the adjudication
hearing, and A.B. was deemed dependent-neglected by virtue of L.B.’s adjudication. L.B.
remained in foster care, and A.B. remained in Bell’s custody as of the review hearing on
February 11, 2014, the permanency-planning hearing on August 12, 2014, and the fifteen-
month permanency-planning hearing on November 18, 2014. On January 29, 2015, DHS filed
a petition for the termination of parental rights against Bell as to L.B. only, and Bell’s parental
rights as to L.B. were involuntarily terminated.
On February 12, 2015, DHS received a hotline call alleging that Bell was engaged in
prostitution and using illegal drugs while A.B. was with Bell. DHS exercised a seventy-two-
hour hold on A.B. on February 23, 2015, and on February 26, 2015, DHS filed a petition for
emergency custody and dependency-neglect regarding A.B. An order was entered on April 3,
2015, finding probable cause existed for A.B. to remain in foster care. An adjudication order
finding that A.B. was dependent-neglected was entered on May 14, 2015. Johnson was noted
as A.B.’s putative father in these orders.
Another review-hearing order was entered on December 11, 2015. Johnson was listed
as A.B.’s putative father, and the circuit court noted Rogers’s attendance at hearings on
November 10 and 30, 2015. Rogers submitted to DNA paternity testing on January 27, 2016.
The following day, Rogers was arrested and was subsequently sentenced to three years in the
Arkansas Department of Correction.
A permanency-planning hearing was held on February 16, 2016, at which time the
circuit court set a concurrent goal of adoption. DHS filed a petition on April 26, 2016, seeking
to terminate the parental rights of Bell and Johnson to A.B. Rogers was not mentioned. A
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Cite as 2017 Ark. App. 469fifteen-month review order was entered on June 23, 2016, in which the court found that, based
on DNA testing, Rogers was A.B.’s legal father. The court set the matter for a termination
hearing.
On May 24, 2016, DHS filed an amended petition for termination of parental rights
against Rogers, as the legal father of A.B. With respect to Rogers, DHS alleged that (1) A.B.
had lived outside the home of her parents for more than twelve months and that Rogers had
willfully failed to maintain meaningful contact with her; (2) factors had arisen subsequent to
the filing of the original petition for dependency-neglect that demonstrated that placement of
A.B. with Rogers was contrary to her health, safety, or welfare, and despite the offer of
appropriate family services, Rogers had manifested the incapacity or indifference to remedy
the subsequent factors; and (3) Rogers had been sentenced in a criminal proceeding for a
period of time that would constitute a substantial period of A.B.’s life. Rogers, who was
incarcerated at the time, filed a statement indicating that he expected to be released in the
summer of 2016 and that he wanted to be considered as a placement option for A.B. The
court entered an order appointing counsel for Rogers on July 7, 2016.
At the November 17, 2016 termination hearing, DHS family-service worker, Lisa
Walton, testified that she first met Rogers on August 31, 2015. She advised him that DNA
testing was required and had been requested. She further advised Rogers that he needed to
obtain appropriate housing, income, and transportation. She told Rogers he needed to attend
parenting classes, which she offered. Rogers reported to Walton that he had a home and
received SSI benefits for mental-health issues but that he did not have a vehicle. He said that
he is a convicted felon, is on parole for two years, and was looking for a job. Rogers told
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Cite as 2017 Ark. App. 469Walton that he already had a mental-health therapist, and Walton recommended that he return
to his therapist and get back on his medications. Walton also recommended that he resolve
his legal issues.
Walton testified that she met with Rogers a second time on October 25, 2016. He had
just been released from prison the week prior. Rogers advised that he was living with his
mother, had SSI, and was looking for a job and an apartment. He also stated that he had
completed parenting, anger-management, and communication classes while incarcerated.
Walton opined that A.B. would be subjected to potential harm if placed in Rogers’s
custody because they did not have a bond. Walton testified that A.B. is adoptable despite her
special needs 1 and that her foster family was interested in adopting her.
Rogers testified that when he first met with Walton in August 2015, she said DNA
testing was required, to which he submitted. She also told him that he needed to attend
parenting classes. Rogers said that he had the opportunity to take parenting classes before he
was incarcerated but did not. When questioned why, he said:
Well, uh, I was working and, you know. Really, I mean – I’m not sure, ma’am. I felt –
I felt like, uh – I felt like it needed to be done. I didn’t get it done, uh – I don’t know,
hesitation, ma’am.
Rogers also testified that he had been diagnosed with bipolar disorder and schizophrenia but
did not take medication. He stated that Walton recommended that he return to his counselor
for his mental-health issues and medication, but he said he did not do so because he did not
feel like he needed it.
1Walton testified that A.B. has developmental delays.
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Cite as 2017 Ark. App. 469Rogers said that he had been arrested on January 28, 2016, for maintaining a drug
premises, being a felon in possession of a firearm, and possession of a controlled substance
with the purpose to deliver. He was sentenced to three years’ imprisonment. He conceded that
his housing at the time of his arrest was not a safe environment for a child. At the time of the
termination hearing, he stated that he was living with his mother but was trying to get his own
apartment. Rogers testified he is still on parole. He said that he had not seen A.B. since she
was four years old (she was nine at the time of the hearing) but that he loved her and wanted
to spend time with her.
At the conclusion of the hearing, the circuit court orally granted DHS’s petition
terminating Rogers’s parental rights to A.B. The court found that DHS proved the
subsequent-factors ground based on Rogers’s delay in complying with services coupled with
his incarceration during the case. The court further found that termination is in A.B.’s best
interest. Specifically, the court found that A.B. is adoptable and that returning her to Rogers
created a substantial risk of harm in that he had just been released from prison the month
before the hearing, he lacked housing, and he had not seen A.B. in five years. The court stated
to Rogers, “Your child at this point does not know you.”
The court entered an order terminating Rogers’s parental rights to A.B. on January 19,
2017. 2 The court stated:
Before DNA evidence confirmed that [Rogers] was the father, he attended court
hearings and had contact with the Department to figure out what he needed to do to
obtain custody of his child, should DNA confirm he was the father. Mr. Rogers was
given some instructions on what he could work on in August 2015. He attended Court
on at least November 10 and November 30, 2015. Mr. Rogers was arrested in January
2The parental rights of Bell, A.B.’s mother, were also terminated in this order. Bell is
not a party to this appeal.
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Cite as 2017 Ark. App. 4692016 and released last month. He testified that he did not know why he did not start
working the case plan sooner. . . . He is currently on parole. He chose to get involved
in illegal activity during the course of this case which resulted in a conviction for which
he served some jail time. He is not currently in a position to take a child. . . . Mr. Rogers
has not seen [A.B.], who is now nine years old, since she was four. She does not have
a bond with him. He testified that he does not have stable housing for the child if she
were to be placed in his custody.
This appeal followed.
Termination-of-parental-rights cases are reviewed de novo. Jackson v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 411, at 4, 429 S.W.3d 276, 279. Grounds for termination of
parental rights must be proved by clear and convincing evidence, which is that degree of proof
that will produce in the finder of fact a firm conviction of the allegation sought to be
established. Id., 429 S.W.3d at 279. The appellate inquiry is whether the circuit court’s finding
that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id.,429 S.W.3d at 279. 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. Id., 429 S.W.3d at 279. In resolving the clearly erroneous question, we
give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id.,429 S.W.3d at 279. Termination of parental rights is an extreme remedy and in derogation of
a parent’s natural rights; however, parental rights will not be enforced to the detriment or
destruction of the health and well-being of the child. Id., 429 S.W.3d at 279. In order to
terminate parental rights, the circuit court must find by clear and convincing evidence that one
or more statutory grounds for termination exists. Jackson, 2013 Ark. App. 411, at 5, 429 S.W.3d
at 279 (citing Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2011)). Proof of only one statutory
ground is sufficient to terminate parental rights. Id. at 5, 429 S.W.3d at 279.
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Cite as 2017 Ark. App. 469The circuit court found that only one ground supported termination of Rogers’s
parental rights—the subsequent-factors ground—which provides:
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.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl. 2015). Rogers argues that there was
insufficient evidence submitted to support this ground because DHS “failed to prove that it
offered any appropriate family services to [him] and there was no evidence that [he] failed to
remedy any supposed subsequent factor.” 3 For support, he cites Jackson, wherein the father
made the same argument and our court reversed the circuit court’s termination decision.
In Jackson, the father made his first appearance in the dependency-neglect proceeding
at the termination hearing. The court continued the hearing as to him and appointed him
counsel. Jackson, 2013 Ark. App. 411, at 3, 429 S.W.3d at 278. The father’s parental rights were
later terminated based on three grounds, one of which was the subsequent-factors ground. On
appeal, he contended that DHS failed to offer any appropriate family services to him and that
there was no evidence that he failed to remedy the subsequent factor. Id. at 8, 429 S.W.3d at
281. We agreed with the father and reversed because the evidence demonstrated that the
caseworker did not speak with the father at the termination hearing, she did not provide him
her contact information, she never attempted to contact him after the hearing to determine
3Rogers does not challenge the circuit court’s best-interest finding.
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Cite as 2017 Ark. App. 469whether he was a suitable caregiver, and she did not attempt to identify any services that might
permit reunification. Id. at 8–9, 429 S.W.3d at 281.
The facts in the instant case are distinguishable from those in Jackson. First, Rogers
participated in this case and had communications with DHS. He attended two review hearings.
He met with his caseworker, Walton, twice—before and after his incarceration. Second,
Walton offered services to Rogers. She referred him for DNA testing and parenting classes.
She recommended that he return to his mental-health counselor for treatment and medication.
She advised that he needed to obtain stable housing, income, and transportation. She further
advised that he needed to resolve his legal issues. Third, the evidence demonstrated that
Rogers did not comply with Walton’s referrals or recommendations. He admitted that he had
the opportunity to attend parenting classes before his incarceration but that he did not do so
and he offered no reason for not doing it. He candidly testified, “I didn’t get it done.” He did
not return to his mental-health counselor because he did not think he needed to. After he met
with Walton and was to be working on his case plan, he committed three crimes and was
sentenced to a three-year term of imprisonment. Notably, his crimes were committed in his
home during the time in which he was supposedly trying to obtain stable housing. Rogers
admitted that the home was not a safe environment for a child. At the time of the termination
hearing, Rogers still did not have stable housing or a job. His legal issues had not been resolved;
he had been released from prison one month and was still on parole.
This evidence of Rogers’s failure to engage in services recommended by DHS and his
incarceration during the pendency of the case is clear and convincing evidence that supports
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Cite as 2017 Ark. App. 469the circuit court’s subsequent-factors ground for termination. Accordingly, we affirm the order
terminating Rogers’s parental rights to A.B.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
Jonathan R. Streit, for appellant.
Mary Goff, Office of Chief Counsel, for appellee.
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