DocketNumber: No. CV-18-727
Citation Numbers: 571 S.W.3d 491, 2019 Ark. App. 25
Judges: Gladwin, Whiteaker
Filed Date: 1/23/2019
Status: Precedential
Modified Date: 1/21/2022
Stephanie Smith-McLeod and Gregory McLeod appeal a Columbia County Circuit Court order terminating their parental rights to their daughter, I.M. Stephanie challenges the trial court's findings on both statutory grounds and best interest.
*493Gregory challenges only the statutory grounds for termination. We find no error and affirm.
I. Procedural Facts and History
Gregory McLeod and Stephanie Smith-McLeod are the parents of I.M. The McLeod family has a history of involvement with the Arkansas Department of Human Services (Department). The Department investigated two unsubstantiated allegations in July 2012 and July 2016. In September 2015, the Department investigated a hotline call alleging that Stephanie was living in the woods with I.M. and that they had no food. These allegations were found to be true. The family moved in with a relative and a protective-services case was opened.
On February 27, 2017, Stephanie was arrested on charges of kidnapping, endangering the welfare of a minor, possession of drug paraphernalia, and possession of a controlled substance. Gregory was arrested on charges of criminal mischief, resisting arrest, endangering the welfare of a minor, possession of drug paraphernalia, possession of marijuana, and driving on a suspended license.
The Department filed a petition for emergency custody and dependency-neglect. Stephanie and Gregory stipulated to probable cause and eventually stipulated that I.M. was dependent-neglected on the basis of neglect, admitting that they had failed to appropriately supervise I.M., which resulted in I.M.'s being placed in an inappropriate circumstance that created a dangerous situation and placed her at a risk of harm. Further, they admitted that they were unable to assume the responsibility for I.M.'s care and custody due to their arrest and incarceration.
At a subsequent review hearing, the court found that Stephanie and Gregory had not demonstrated progress toward the goals of reunification due to their incarceration. The court also found that they had been unable to complete and benefit from services under the case plan and had been unable to remedy the issues that prevented the safe return of I.M. to their care.
*494At a permanency-planning hearing held on March 2, 2018, the court noted that Stephanie had been incarcerated until February 21, 2018, and Gregory had been incarcerated for the duration of the case. The court then changed the goal of the case to termination of parental rights and adoption, finding that neither Stephanie nor Gregory had made any significant measurable progress toward achieving the goals established in the case plan, and neither had diligently worked toward reunification or placement of the child in the home.
Based on this change of goal, the Department filed a petition to terminate parental rights as to both Gregory and Stephanie on twelve-month-failure-to-remedy
II. Standard of Review
On appeal, we review termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of Human Servs. ,
Our case law recognizes that the termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs. ,
III. Statutory Grounds
On appeal, Stephanie challenges both grounds found by the trial court to support termination. As to the twelve-month-failure-to-remedy ground, she argues that she was in complete compliance with the case plan, both while incarcerated and after her release, and that she had corrected the conditions that caused removal. As to the aggravated-circumstances ground, she argues that she had completed a substantial number of services in a short *495period of time and, with the exception of individual counseling, was working diligently toward completing the requirements of the case plan; therefore, the court's finding that it was unlikely that services would result in a successful reunification was clearly erroneous.
Gregory argues that he did not have to show that he had remedied the grounds for removal; rather the Department had to prove that he had not. He claims that he was no longer incarcerated; that there was no evidence that he would kidnap his niece again; and that he had not taken any drugs since his arrest. As for the aggravated-circumstances ground, he argues that there was only evidence that he had been unable to work services while incarcerated, not that he was unwilling. In fact, he had done all that the Department had required since his release. He further argues that past drug usage does not equal little likelihood of successful reunification. Finally, he argues that the court was mistaken in its belief that a decision had to be made at the termination hearing.
We need not reach the merits of the arguments made by either Stephanie or Gregory due to invited error. Under the doctrine of invited error, a party may not complain on appeal of an erroneous action of a trial court if he or she induced or acquiesced in that action. J.I. Case Co. v. Seabaugh ,
Here, both Stephanie's and Gregory's counsel conceded at the hearing that the trial court could terminate on the twelve-month-failure-to-remedy ground. In closing arguments, Stephanie's attorney stated:
We admit-in speaking for Stephanie McLeod-we admit that The Court can terminate the parental rights of Stephanie as to [I.M.]. We know you can do that, if for no other reason than the statute provides for twelve months out of the home. That's clearly been established, because my client's been incarcerated for little over, well, right at twelve months, but certainly since [I.M.] is still not in my client's home, more than twelve months.
On her behalf, counsel then proceeded to argue for more time and more services. Then, however, during the recitation of the trial court's oral findings, Stephanie's counsel stated:
I understand The Court's Ruling about the T.P.R., the twelve months. I can't really argue that. In fact, we didn't, but I would disagree with The Court and object to you making the Finding directing them to prepare an Order that aggravating circumstances have been met.
Counsel then argues that the court could "terminate the parental rights of these parents because of the twelve months' separation with finding aggravated circumstances. That's fine."
*496Likewise, Gregory's counsel in closing stated:
The statute, we understand, you're limited in what you can do. The law is the law. You're [sic] got to follow that, but if there's-like [Stephanie's counsel] said-we're just pleading that if there's anything that The Court could possibly do to extend time to allow Greg and Stephanie to show The Court they are committed to this, if they fail, they fail.
In connection with the court's oral findings, Gregory's attorney responded, "Just for the record, I just kind of want to piggy-back on that which [Stephanie's counsel] just stated." Thus, counsel for Gregory also agreed that Gregory's rights could be terminated under the failure-to-remedy ground.
We hold that both parties affirmatively informed the court that there was sufficient evidence on which the court could terminate on the failure-to-remedy ground. They only disagreed on the aggravated-circumstances ground and requested more time to show compliance. When a party does not dispute the allegations of a ground at the trial level, they are prohibited from appealing the ground under the theory of invited error. Parnell v. Ark. Dep't of Human Servs. ,
Only one ground is necessary for termination to occur. Robinson v. Ark. Dep't of Human Servs. ,
IV. Best Interest
Stephanie also challenges the trial court's best-interest findings. She argues that she has been actively working toward reunification with I.M. and that there would be little harm in allowing additional time for reunification. Additionally, she argues that I.M. has a sibling, E.M.
Stephanie is correct that one factor the court must consider in determining the best interest of the child is whether the child will be separated from his or her siblings. Clark , supra. However, the effect of separation from a sibling is not the only factor the court must consider in determining whether termination is in the child's best interest. The trial court in this case fully considered the effect termination would have on I.M.'s relationship with her sibling. The court specifically stated that it did not "discount the fact that [I.M.] has a sibling in the foster care system" and that both were aware of the other.
Moreover, the intent of our termination statute is to provide permanency in a minor child's life in circumstances where returning the child to the family home is contrary to the child's health, safety, or welfare, and where the evidence demonstrates *497the return cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Miller v. Ark. Dep't of Human Servs. ,
Affirmed.
Virden, J., agrees.
Whiteaker, J., concurs.
Gregory was also wanted on two failure-to-appear warrants.
We note persistent noncompliance with the statutory timeframes in this process. I.M. was removed on February 27, 2017, but the ex parte order for emergency custody was not filed until March 8, 2017. The probable-cause hearing was held on March 9, 2017, but the probable-cause order was not filed until June 15, 2017. At the probable-cause hearing, the court scheduled the adjudication hearing for May 5, 2017, which exceeds the statutory timeframes. The adjudication was eventually held on June 23, 2017, but the adjudication order was not filed until November 13, 2017.
We note again noncompliance with statutory timeframes. The review hearing was held on October 20, 2017, but the review order was not filed until December 13, 2017.
E.M. was born on October 5, 2017, and was removed from Stephanie's custody at birth. E.M. is the subject of a separate dependency-neglect action.