Mahone v. Arkansas Department of Human Services

KAREN R. BAKER, Justice,

concurring in part and dissenting in part.

I agree with the majority that the first statutory preference outlined in Ark.Code Ann. Section 9-27-S38(c)(Repl.2009) applies to Mahone as he is a “parent” under the definition of Ark.Code Ann. section 9-27-308(40)(Repl.2009). I write separately because I would not remand this case to the trial court.

The United States Supreme Court has stated that it is a fundamental right to parent a child without interference by the state. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). As I outlined in my dissent in Bethany v. Jones, 2011 Ark. 67, 378 S.W.3d 731, before the state may intervene there must be a showing of unfitness on the part of the parent. Without a specific showing of unfitness, there is a legal presumption that actions of a parent are in the best interest of the child. Troxel, 530 U.S. at 66, 120 S.Ct. 2054.

Further, individualized assessment of each parent is necessary to prevent the arbitrary |7and unjustified interference with a parent’s fundamental right to raise their child as they see fit. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). One parent’s actions should not negate the constitutional rights of the other. Id. Mahone was not found unfit at the time of the permanency hearing.¹

On the contrary, Mahone was found to be fit and was in substantial compliance with the permanency plan. Specifically, the trial judge found that the children would be safe in Mahone’s home, that the trial judge wished that the children’s stepmother was their biological mother, and that Mahone was a father who had “stepped up to the plate” for the children. The Department of Human Services requested that the children be permanently placed with Mahone and joined in Ma-hone’s arguments on appeal.

The majority holds that we cannot be assured that the circuit court would have ruled the way it did had it applied the statutory preference afforded parents and that the appropriate remedy is to remand the case for the trial court to re-evaluate the parties with a new best-interest analysis applying the proper preference. I disagree.

The trial court made a finding that Ma-hone and the grandmother, Teresa Taylor, were equally fit to have custody of these children. This finding of fact is neither clear error nor against the preponderance of the evidence. With this finding of fact, the question of the best interests of the children is no longer before the court. The matter in question is simply |swhat preference Mahone should have as a legal parent under Ark.Code Ann. section 9-27-338(c). This is a matter of law, and should be decided by this court.

The majority opinion seems to hold that part of the reason for the remand is that circumstances may have changed during the seventeen months that this matter has been pending such that a reassessment of the parties comparative fitness is necessary. This is wrong. This case is finished. If circumstances have developed such that the children are in danger with their father, a new petition may be filed by the Arkansas Department of Human Services based on those circumstances.

Furthermore, while the majority is correct in noting that Mahone’s constitutional issues were not preserved for appeal, it is worth noting that, as read by the trial court and the Arkansas Court of Appeals, Ark. Code Ann. section 9 — 27—338(c) is unconstitutional. The statute, in pertinent part, reads:

At the permanency planning hearing, based upon the facts of the case, the circuit court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest of the juvenile:

(1)Returning the juvenile to the parent, guardian, or custodian at the permanency planning hearing if it is in the best interest of the juvenile and the juvenile’s health and safety can be adequately safeguarded if returned home.

As shown above, use of the word “return” infringes on the fundamental parental rights of a fit noncustodial parent. Further, placement of “in accordance with the best interest of the juvenile” prior to subsection (1) indicates that the judge has the right to choose outright which of the 6 permanency goals to set, instead of proceeding through each in order of preference to determine if the placement meets the goals. As the wording of the statute has caused some confusion among the courts, the General Assembly should examine this part of |9the juvenile code to clarify the statute.

1 . While the majority opinion is correct that ' the trial judge based her opinion on the fact that the siblings would be separated, this was not the sole reason for her decision, as the majority states. The record reflects that the trial judge based her ruling on not only the sibling separation, but also on facts that preceded the finding of dependent neglect; the fact that T.M. had been in foster care a very short time while Mahone was living with him and his mother and the fact that Mahone had children with two different women at roughly the same time.