Nicole Nesbitt v. Arkansas Department of Human Services and Minor Child ( 2024 )

Cite as 2024 Ark. App. 530ARKANSAS COURT OF APPEALS
DIVISION I
NO. CV-24-486
Opinion Delivered October 30, 2024
NICOLE NESBITT APPEAL FROM THE SEARCY
APPELLANT COUNTY CIRCUIT COURT
[NO. 65JV-22-13]
V.
HONORABLE SUSAN WEAVER,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR
CHILD REVERSED AND REMANDED
APPELLEES
KENNETH S. HIXSON, Judge
Appellant Nicole Nesbitt1 appeals after the Searcy County Circuit Court filed an
order terminating her parental rights to her son, Minor Child 2 (MC2) (DOB 09-28-22).2 3
Appellant narrowly argues on appeal that we must remand for the circuit court to apply the
1
We note that our record also refers to appellant as Nicole Case. However, our record
in the companion case contains a copy of a divorce decree filed on October 7, 2022, in which
the circuit court ordered that appellant’s last name of Case be restored to her former last
name of Nesbitt.
2
Appellant also has a daughter, Minor Child 1 (MC1) (DOB 11-17-21). MC2 entered
foster care subsequent to MC1, and their cases proceeded under separate case numbers.
However, both cases were heard together at a single termination hearing, but two separate
termination orders and two separate notices of appeal were subsequently filed.
3
The circuit court also terminated the parental rights of MC2’s father, John Wayne
Eddings; however, he is not a party to this appeal.
heightened burden of proof that is required in termination proceedings involving an Indian
Child pursuant to the Indian Child Welfare Act (ICWA). Appellees, the Arkansas
Department of Human Services (DHS) and MC2, concede legal error, and we accordingly
reverse and remand.4
Ordinarily, a circuit court’s order terminating parental rights must be based on
findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp.
2023). However, in this case, all parties agree that MC1 is an “Indian Child” as defined by
the ICWA. 25 U.S.C. § 1903(4). For termination proceedings subject to the ICWA, the
burden of proof is beyond a reasonable doubt. Ark. Code Ann. § 9-27-325(h)(2)(B) (Supp.
2023).
Here, the circuit court expressly stated in its termination order that its findings were
based on “clear and convincing evidence.” Appellant argues on appeal that the circuit court
failed to apply the heightened burden of proof as required under ICWA to its termination
findings, which she argues is reversible error according to our decision in Cheater v. Arkansas
Department of Human Services, 2024 Ark. App. 183. Appellant, therefore, argues that the case
should be remanded to the circuit court. DHS agrees and concedes error. We accordingly
reverse the order of termination and remand for further proceedings consistent with this
opinion.
4
This case is the companion to Nesbitt v. Arkansas Department of Human Services, 2024
Ark. App. 531, ___ S.W.3d ___, also decided today, in which appellant has appealed the
termination of her parental rights to her other child, MC1.
2
Reversed and remanded.
ABRAMSON and VIRDEN, JJ., agree.
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
One brief only.
3