Flow v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 86
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-966
Opinion Delivered: February 15, 2017
RONNIE FLOW, JR.
APPELLANT
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT
V. [NO. 14JV-15-88]
ARKANSAS DEPARTMENT OF HUMAN HONORABLE EDWIN KEATON,
SERVICES AND MINOR CHILDREN JUDGE
APPELLEES
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Ronnie Flow, Jr., appeals from the August 5, 2016 Columbia County Circuit Court
order terminating his parental rights to his three children, D.F., C.F., and P.F. On appeal,
Flow argues that (1) there was not proper service under Arkansas Rule of Civil Procedure
4(d)(4); (2) the circuit court’s reliance on prior convictions violated Arkansas Rule of
Evidence 404; and (3) the circuit court’s failure to grant his motion for continuance was
reversible error. For the following reasons, we affirm.
On November 17, 2015, the Arkansas Department of Human Services (DHS) filed
a petition for emergency custody and dependency-neglect with an affidavit attached that
detailed allegations that Flow had sexually abused his stepdaughter, W.S., and his biological
daughter, D.F. DHS then exercised a hold on all three of Flow’s biological children, P.F.,
Cite as 2017 Ark. App. 86
C.F., and D.F. 1 The same day, the circuit court entered an order placing the three children
in DHS’s custody. Flow was arrested on December 31, 2015, on criminal charges arising
from the same allegations that opened this case. The circuit court entered an order on
January 14, 2016, placing all of the children in their mother’s custody.
On March 10, 2016, the circuit court held an adjudication hearing. Flow, who was
incarcerated at the time, refused to be transported, so he was not present at the hearing. The
court found the juveniles to be dependent-neglected as a result of sexual abuse and entered
a detailed adjudication order reflecting such. The circuit court also found, by a
preponderance of the evidence, that Flow had subjected the juveniles to aggravated
circumstances.
A petition to terminate Flow’s parental rights was also filed on March 10, 2016. In
it, DHS alleged two grounds for termination under Arkansas Code Annotated section 9-
27-341(b)(3)(B)(vi)(a) (Repl. 2015) (the court has found the juveniles or a sibling
dependent-neglected as a result of neglect or abuse that could endanger the life of the child,
sexual abuse, or sexual exploitation, any of which was perpetrated by the juveniles’ parent
or parents or stepparent or stepparents) and under Arkansas Code Annotated section 9-27-
341(b)(3)(B)(ix)(a)(3) (the parent has subjected the juveniles to aggravated circumstances).2
1
At the time of the hold, W.S. was living with her mother, and DHS requested that
custody of W.S. be given to her mother. On November 17, 2015, an ex parte order for
emergency custody was entered permitting W.S. to remain in the home of her mother but
restricting Flow’s access to W.S. Neither W.S. nor her mother are parties to this appeal.
2
“Aggravated circumstances” means a juvenile has been abandoned, chronically
abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has
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The circuit court held a hearing on the petition for termination of Flow’s parental
rights on May 27, 2016; Flow and his counsel were present. DHS introduced the
adjudication order at this hearing. Testimony was presented that the children would be at
great risk of being victims of sexual abuse if returned to Flow. Further testimony indicated
that Flow remained incarcerated and therefore could not assume custody of the children at
that point.
On August 5, 2016, the circuit court entered an order terminating Flow’s parental
rights to his three children, D.F., C.F., and P.F. The circuit court found that DHS had
proved both grounds for termination by clear and convincing evidence. The circuit court
also found that termination was in the best interest of the children, specifically considering
adoptability and potential harm. This appeal followed.
Our standard of review in termination-of-parental-rights cases is well settled; we
review these cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d
286 (2001). Termination of parental rights is an extreme remedy and in derogation of the
natural rights of parents; however, parental rights will not be enforced to the detriment or
destruction of the health and well-being of the child. Smithee v. Ark. Dep’t of Human Servs.,
2015 Ark. 506, 471 S.W.3d 227. A court must find that at least one statutory ground exists,
in addition to a finding that it is in the child’s best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear
been or is made by a judge that there is little likelihood that services to the family will result
in successful reunification. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i).
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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. Anderson v. Douglas, 310 Ark. 633,
839 S.W.2d 196 (1992).
The appellate inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human
Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). In determining whether a finding is clearly
erroneous, we give due deference to the opportunity of the circuit court to judge the
credibility of witnesses. Dinkins, supra.
In making a “best interest” determination, the circuit court is required to consider
two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm
to the child if custody is returned to a parent. Pine v. Ark. Dep’t of Human Servs., 2010 Ark.
App. 781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor
that the circuit court must consider. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App.
430, 389 S.W.3d 1. Similarly, the potential harm to the child is a factor to be considered,
but a specific potential harm does not have to be identified or proved by clear and
convincing evidence. Pine, supra. The potential-harm analysis is to be conducted in broad
terms. Id. It is the “best interest” finding that must be supported by clear and convincing
evidence. Id.
Flow does not argue that DHS failed to establish a ground for termination, so we do
not need to consider whether the circuit court erred in finding that sufficient evidence
supported the statutory grounds the circuit court relied on to terminate Flow’s parental
rights. See Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 409, 242 S.W.3d 305,
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316–17 (2006). Instead, Flow argues that the case should be “dismissed for insufficient
process and/or service of process.” Flow contends that there was not proper service of the
petition to terminate his parental rights under Arkansas Rule of Civil Procedure 4(d)(4),
which provides in pertinent part, “Where the defendant is incarcerated in any jail,
penitentiary, or other correctional facility in this state, service must be upon the
administrator of the institution, who shall deliver a copy of the summons and complaint to
the defendant.” See Ark. R. Civ. P. 4. 3 Flow argues that he was incarcerated on March 10,
2016, “the day he was supposedly personally served by a process server,” and therefore there
was not “proper service of an incarcerated parent.”
However, by his own admission, Flow appeared at the termination hearing,
participated in the hearing, and made no objection regarding service of process at the
hearing. Although service of valid process is necessary to give a court jurisdiction over a
defendant, the defense of personal jurisdiction may be waived. Affordable Bail Bonds v. State,
2015 Ark. App. 44. Therefore, this argument has been waived. See Vico Corp. v. State ex
rel. McDaniel, 2011 Ark. 124, at 9, 380 S.W.3d 411, 419. Yet, Flow contends that because
the circuit court ruled on service of process and relied on valid service in order to terminate
3 Arkansas Code Annotated section 9-27-341(b)(2)(A) provides that the petition to
terminate parental rights shall be served as required under Rule 5 of the Arkansas Rules of
Civil Procedure. Flow was served pursuant to Rule 4 of the Arkansas Rules of Civil Procedure
because he was not represented by counsel at the time. Arkansas Code Annotated section 9-
27-341(b)(2)(A)(i)(b) contains an exception to service of the petition to terminate parental
rights under Rule 5, providing that service shall be made as required under Rule 4 of the
Arkansas Rules of Civil Procedure if the parent is not represented by an attorney.
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his rights, the issue is preserved for review. Flow cites no authority to support this claim.
Our court will not consider arguments that are unsupported by convincing legal authority
or argument unless it is apparent without further research that the argument is well taken.
Campbell v. State, 2016 Ark. App. 119, 484 S.W.3d 279. We hold that because Flow did
not object to the validity of service, he has waived this argument on appeal.
Flow’s next argument is that the circuit court’s reliance on prior convictions violated
Rule 404 of the Arkansas Rules of Evidence. The record does not show that Flow made a
timely and contemporaneous objection to the circuit court’s admission of any prior or
pending criminal matters. Flow’s challenge is not to the admission of evidence but to the
circuit court’s weighing of that evidence against him in its final decision. Therefore,
Arkansas Rule of Evidence 404 is not applicable.
Flow argues that because the circuit court relied “solely” on his past convictions for
sexual abuse, the evidence does not support the court’s potential-harm finding. Flow
concedes that the circuit court, at adjudication, found that he had sexually abused two of
the children and that this cannot be relitigated at a termination hearing. As such, Flow
voluntarily abandoned his appeal of the adjudication order containing the court’s finding
that he had engaged in sexual intercourse and “deviant sexual activity” with W.S. and D.F.
An adjudication order is immediately appealable pursuant to Rule 6–9(a)(1)(A) of
the Rules of the Supreme Court and Court of Appeals of the State of Arkansas. In Ashcroft
v. Arkansas Department of Human Services, 2010 Ark. App. 244, at 8, 374 S.W.3d 743, 747,
we stated that “we have held that a parent’s failure to appeal the rulings made in an
adjudication order precludes appellate review of those findings in an appeal from a
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subsequent order.” Ashcroft, 2010 Ark. App. 244, at 8, 374 S.W.3d at 747 (citing Lewis v.
Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005); White v. Ark. Dep’t of
Human Servs., 2009 Ark. App. 609, 344 S.W.3d 87; Causer v. Ark. Dep’t of Human Servs.,
93 Ark. App. 483, 220 S.W.3d 270 (2005)). Specifically, in Villasaldo v. Arkansas Department
of Human Services, 2014 Ark. App. 465, at 6–7, 441 S.W.3d 62, 66, our court noted that
Villasaldo did not appeal from the adjudication order in which the circuit court found that
she had failed to protect J.G. from abuse. Accordingly, we did not question whether she
indeed failed to protect her son from abuse because that fact had been established. Id. Such
is the case here.
Flow’s egregious acts of sexual abuse were properly admitted into evidence without
objection and are clear evidence of potential harm. These findings made at the adjudication
hearing were not appealed, thereby establishing these facts. In its termination order, the
circuit court adopted its findings from the adjudication hearing. The court did not rely
“solely” on Flow’s past convictions to find potential harm, and Flow did not appeal the
findings made at the adjudication hearing. As a result, we affirm on this point.
Flow’s final argument is that the circuit court erred by denying his motion for
continuance. The basis of his motion, made two days before the scheduled termination
hearing, was to “allow him a reasonable opportunity to defend his criminal matters” that
related to the allegations in the present case. It was immediately denied. Flow renewed his
motion at the beginning of the termination hearing, and it was again denied.
The grant or denial of a motion for continuance is within the sound discretion of the
circuit court, and we will not reverse a denial of a motion for continuance absent an abuse
of discretion amounting to a denial of justice. Smith v. Ark. Dep’t of Human Servs., 93 Ark.
App. 395, 401, 219 S.W.3d 705, 708 (2005). Lack of diligence by the moving party is a
sufficient reason to deny a motion for continuance. Id. Additionally, we will not reverse
absent a showing of prejudice from the denial of the motion for continuance. Id.
In this case, the circuit court did not abuse its discretion, and Flow cannot
demonstrate prejudice. Our caselaw is clear that the existence of pending criminal charges
relating to events at issue in a termination case does not automatically require a stay of the
termination case until those charges are resolved. Hathcock v. Ark. Dep’t of Human Servs.,
347 Ark. 819, 825, 69 S.W.3d 6, 9–10 (2002). The Arkansas Supreme Court has repeatedly
stated that the decision to stay termination proceedings pending the outcome of a related
criminal case is within the sound discretion of the circuit court and involves balancing the
interests of all parties. Id. The circuit court denied the continuance, reasoning that the
children should not be forced to wait “in limbo” pending the uncertain date of the
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resolution of a separate criminal proceeding. This explanation was neither improvident nor
without due consideration, and moreover, Flow has failed to show how he was prejudiced
by the denial; therefore, we cannot conclude that the circuit court abused its discretion in
denying Flow’s motion for continuance.
Affirmed.
VIRDEN and GLADWIN, JJ., agree.
Dusti Standridge, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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