Vogel v. Ark. Dep't of Human Servs.

Cite as 2015 Ark. App. 671
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-607
Opinion Delivered November 18, 2015
AUTUMN VOGEL
APPELLANT APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
[No. 63JV-13-392]
V.
HONORABLE GARY ARNOLD,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
APPELLEES AFFIRMED
LARRY D. VAUGHT, Judge
Appellant Autumn Vogel appeals the termination of her parental rights to her son
B.H. (born December 9, 2013). On appeal, Autumn argues that (1) her due-process rights
were violated when the circuit court held the termination hearing in her absence and without
her participation by phone or other remote means, (2) her appointed attorney’s failure to
insist on her presence at the hearing or require proof of personal service upon Autumn
amounted to ineffective assistance of counsel, and (3) the termination decision was clearly
erroneous. We affirm.
Autumn was incarcerated when she gave birth to B.H. in December 2013. There was
no suitable legal caregiver available for B.H., so the Department of Human Services
(“DHS”) petitioned for and obtained emergency custody of him. In the ex parte prder for
emergency custody, filed December 13, 2013, Autumn was appointed an attorney. On
January 6, 2014, a probable-cause hearing was held. The probable-cause order stated that
Cite as 2015 Ark. App. 671
Autumn had been served “by substituted service upon the Warden at Wrightsville Women’s
Unit, on December 17th, 2013.” Autumn and her attorney were present at the hearing. The
court found probable cause for the removal of B.H. and his continued care by DHS.
Autumn was still incarcerated at the time of the March 5, 2014 adjudication hearing
but attended the hearing with her attorney. B.H. was adjudicated dependent-neglected, and
the order stated that Autumn had been personally served on February 10, 2014. The order
stated that Autumn was ordered to follow the case plan, cooperate with DHS, remain in
regular contact with DHS, submit to a drug-and-alcohol assessment, submit to random drug
screens and test clean on all screens, attend individual counseling, complete a psychological
evaluation, complete parenting classes, obtain and maintain a safe and clean home, obtain
and maintain stable employment, and follow all recommendations that result from DHS
services.
On July 7, 2014, Autumn attended a review hearing with her attorney. In its review
order, the court found that DHS was making reasonable efforts to provide family services to
achieve the goal of reunification. The court also provided a concurrent case goal of
adoption.
Autumn was released from prison on parole in August 2014. She initially resided at
Recovery Centers of Arkansas. On or around October 31, 2014, she began renting a home
on Sardis Road in Mabelvale, Arkansas. The home belonged to an acquaintance who had
recently been incarcerated on drug charges. The home is listed on the National Clandestine
Laboratory Register for Arkansas on the Drug Enforcement Agency’s website as having
been the site of a methamphetamine lab. When DHS discovered the home’s history as a
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Cite as 2015 Ark. App. 671
meth lab and determined that it was contaminated with meth, a caseworker informed
Autumn that the home was not safe and appropriate for a child. Autumn was told that she
would have to find another, more suitable, home before being allowed to care for B.H.
Autumn attended the permanency-planning hearing on November 17, 2014, with her
attorney. At the hearing, Autumn was again ordered to comply with the case plan, including
an order to obtain safe and appropriate housing and test clean on random drug screens. The
next hearing, a fifteen-month review hearing, was set for February 2, 2015. In the
permanency-planning order, the court found that the case was not moving toward an
appropriate permanency plan for the child and authorized DHS to file a petition for the
termination of Autumn’s parental rights.
Between the hearing on November 17, 2014, and the hearing on February 2, 2015,
Autumn refused to move out of the methamphetamine-contaminated home until,
approximately a week before the February hearing, her parole officer ordered her to find
alternative housing or risk parole revocation. Between the two hearings, Autumn tested
positive for methamphetamine once and alcohol twice. By this point, Autumn had also
missed numerous visitations with her child. The day before the February 2 hearing, Autumn
was arrested in Rockwall, Texas, on charges of identity theft, possession of a controlled
substance, and possession of drug paraphernalia.
On February 2, 2015, the court held the fifteen-month review hearing. Autumn’s
attorney attended, but Autumn did not attend due to her incarceration in Texas. The court
found that returning B.H. to Autumn’s custody was contrary to his best interest and set
adoption as the case goal. On the day of the review hearing, DHS filed a petition for
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termination. In the review order, the court stated that a hearing on the petition to terminate
Autumn’s parental rights was scheduled for April 20, 2015, at 9:00 a.m.
The termination hearing was held on April 20, 2015. Autumn was not present
because she was still incarcerated in Texas. Autumn’s attorney attended the hearing. At the
outset of the hearing, B.H.’s father’s appointed attorney moved for a continuance, stating
that he had not been able to locate his client and did not know if his client had been served
with the petition or notice of the hearing. The court denied the continuance, stating that the
father was aware of the case and of the appointment of counsel and that it was the father’s
responsibility to contact the attorney.
The court then asked if Autumn was present. Her attorney responded,
No, Your Honor. My client is still incarcerated in Rockwall, Texas. I do not know
whether or not she’s been served. I know that I received a copy of the [termination of
parental rights] petition, but I don’t know if she’s been served.
The attorney for DHS stated that Autumn had been served in Texas on February 6, 2015,
but no evidence of service was introduced. The court then proceeded with the termination
hearing.
At the hearing, DHS caseworker Erin Descoteaux testified that Autumn had
completed some requirements of the case plan, such as parenting courses, but that she had
not completed other requirements, such as obtaining stable housing, remaining drug free,
and completing counseling. The caseworker testified that Autumn had previously had her
parental rights terminated as to three of B.H.’s siblings. The caseworker also stated that
Autumn missed several visitations with B.H.
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Although Autumn was not present, her attorney made numerous evidentiary
objections and cross-examined the caseworker to reveal that (1) Autumn had complied with
numerous case requirements while in prison and while on parole; (2) Autumn was on a
limited budget, making it difficult for her to find alternative housing; (3) Autumn submitted
a letter to DHS from an unspecified government agency stating that the house was not on
the DEA’s clandestine-labs register; (4) Autumn had attempted to clean the house herself to
make it suitable; (5) Autumn had said she was sick when she missed visitations and that the
meth residue from the house could have made her sick; (6) the meth residue in the house
could have possibly caused Autumn’s positive drug screen; and (7) Autumn had submitted
information to DHS about a prescription medication she was taking that could have caused
the positive drug screen. Autumn’s attorney also helped clarify that Autumn was not
associated with the home’s owner, who had gone to prison on drug charges. Autumn’s
attorney argued that, at the last hearing, the court had ordered DHS to progress toward
unsupervised visitation, which it had not done. The caseworker stated that the unsuitable
home and the positive drug screen prevented DHS from moving toward unsupervised
visitation.
Rebecca Kincannon, a DHS adoption specialist, testified that B.H. was adoptable and
that there was an appropriate foster family interested in adopting him. Autumn’s attorney
cross-examined Kincannon to question her statement that she “knew the family,” revealing
that she actually had very little knowledge of the family, having only interacted with them for
the past year at a few foster-parent meetings.
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Autumn’s attorney did not call any witnesses or introduce exhibits on Autumn’s
behalf. However, she made a closing argument, stating that Autumn had complied with all
DHS requirements prior to being arrested in Texas and arguing that DHS had failed to
adequately prove that Autumn’s rights had previously been terminated as to B.H.’s siblings.
The court granted the petition to terminate parental rights as to both parents. The
court’s termination order, entered on April 27, 2015, found that Autumn had manifested the
incapacity or indifference to remedy factors or issues that had arisen subsequent to the filing
of the original petition for dependency-neglect, demonstrating that placement of the child
with Autumn would be contrary to his health and safety. Specifically, the court found that
the child was removed from Autumn’s custody at birth because she was incarcerated and
could not care for him; Autumn was properly served at the outset of the case; Autumn had
been ordered to obtain and maintain stable housing and employment and to comply with the
case plan; she paroled out of prison on August 14, 2014, and moved into a home that had
previously been operated as a meth lab and was owned by a man recently incarcerated on
drug charges; DHS had advised her that the home was inappropriate and that she would
need to relocate; on February 1, 2015, Autumn was arrested in Rockwall, Texas, and was
currently incarcerated there; she had tested positive for meth and alcohol; she had missed
several visitations with B.H.; she was likely to be incarcerated for a significant period of time;
she had failed to comply with the case plan; she had previously had her parental rights
terminated as to three of B.H.’s siblings; there was little likelihood that additional services
would result in reunification; B.H. had remained out of Autumn’s custody for over a year;
reunification could not be achieved within a time frame consistent with B.H.’s needs; and
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the DHS caseworker’s testimony was credible. The court also found that termination was in
B.H.’s best interest given the likelihood that he would be adopted and the potential harm to
his health and safety should he be returned to Autumn’s custody. Autumn filed a timely
appeal.
Autumn argues that her constitutional right to due process was violated because she
was not provided adequate notice of the termination hearing and an opportunity to
participate in the hearing. She admits that these arguments were never raised below. She
argues that, despite her admitted failure to preserve her due-process arguments, we should
allow her to present them for the first time on appeal because her attorney’s failure to raise
these issues to the trial court was ineffective assistance of counsel so flagrant and egregious
that it falls within the third exception to the preservation rule outlined in Wicks v. State, 270
Ark. 781, 606 S.W.2d 366 (1980). We disagree.
In Wicks, the Arkansas Supreme Court reaffirmed the importance of the
contemporaneous-objection rule while outlining a few finite exceptions to the rule. The third
exception “relates to the trial court’s duty to intervene, without an objection, and correct a
serious error either by an admonition to the jury or by ordering a mistrial.” Wicks, 270 Ark.
at 786, 606 S.W.2d at 369. In Wicks, the court stated that a reversal on such grounds would
be “an extremely rare exception” to the rule. Id., 606 S.W.2d at 369. We have interpreted the
third Wicks exception to mean that “no objection is required to preserve an issue for appeal
where the error is so flagrant and egregious that the trial court should, on its own motion,
have taken steps to remedy it.” Baker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 400, at 3.
Therefore, in this case, we must determine whether Autumn’s attorney’s failure to require
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proof of personal service on Autumn and failure to insist upon Autumn’s presence or
participation at the hearing were flagrant and egregious errors requiring the trial court to
intervene.
Autumn argues that she was not properly served with the termination petition. 1
Arkansas Code Annotated section 9-27-341(b)(2)(A) states that service of a termination
petition will be upon the parent’s attorney pursuant to Rule 5, unless (among other things)
the parent was not served under Rule 4 “at the initiation of the proceedings.” Here, the court
found, and Autumn has not disputed, that her attorney was served with the termination
petition under Rule 5. Autumn argues for the first time on appeal that she did not receive
proper Rule 4 service at the outset of the case, thereby necessitating Rule 4 service of the
termination petition. She claims that, because the probable-cause order only states that she
was served with notice of the probable-cause hearing by substitute service at the Wrightsville
Unit and does not specify that a copy of the notice was also mailed to her first class, marked
“legal mail,” her initial service under Rule 4 was defective. She acknowledges that she
participated in the case after the allegedly defective service, thereby waiving any objection
she may have had as to the adequacy of her original service at the outset of the case.
However, she now argues that, regardless of her waiver, improper Rule 4 service at the
outset of the case meant that DHS had to serve the termination petition on her personally
under Rule 4 rather than upon her attorney under Rule 5.
1 Autumn’s brief specifically challenges service of the petition, not notice of the
hearing. However, we note that the petition contained notice as to the date, time, and
location of the termination hearing; therefore, the issues are one and the same.
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At the termination hearing, everyone involved in the case was operating under the
understanding that Autumn was initially served under Rule 4, allowing subsequent service
under Rule 5. The court had previously found that Autumn had been properly served at the
outset of the case and again made such a finding in the termination order, and Autumn
never challenged either finding until this appeal. At the termination hearing, her attorney
stated that she (the attorney) had been served, as is allowed under Rule 5. Under those
circumstances, we cannot say that Autumn’s attorney’s lack of knowledge about whether
Autumn had also been personally served with the termination petition and notice of the
termination hearing and counsel’s failure to require proof of Rule 4 service of same were
flagrant and egregious errors that required the court to step in on its own. 2 Prior to appeal,
there was never any claim that the initial Rule 4 service was improper, so there was no basis
for requiring anything more than Rule 5 service of the termination petition on Autumn’s
attorney. We therefore disagree that Autumn’s attorney’s failure to require proof that the
termination petition was personally served on Autumn in prison presented the type of
flagrant and egregious error sufficient to invoke the third Wicks exception.
Next, Autumn argues that her absence from the hearing violated her due-process
rights, and her attorney’s failure to take any steps seeking her presence or participation at the
hearing was an error flagrant and egregious enough to fall within the third Wicks exception.
Again, we disagree. Federal courts have found that prison inmates do not have a due-process
2 As has been discussed, Rule 4 service of the termination petition on Autumn was
not required under the statute where the court had previously found that Autumn had been
properly served under Rule 4 at the outset of the case. However, although it was not
required, the DHS attorney indicated that Autumn had been served in Rockwall, Texas, with
the termination petition on February 6, 2015, in addition to Rule 5 service upon her attorney.
The court’s docket also reflects service on Autumn on February 6, 2015.
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right to be present at civil hearings. See Fruit v. Norris, 905 F.2d 1147, 1150 n.6 (8th Cir.
1990). This includes termination proceedings, as long as the inmate-parent is represented by
counsel at the hearing, the counsel participates by making evidentiary objections and cross-
examining witnesses, and the inmate has the opportunity to present testimony by deposition
or other recorded format if that testimony could influence the outcome of the proceedings.
See Cook v. Boyd, 881 F. Supp. 171, 175 (E.D. Pa. 1995); In re Interest of J.S., 470 N.W.2d 48, 52
(Iowa Ct. App. 1991).
In this case, Autumn was represented by counsel who participated at the hearing by
making evidentiary objections, cross-examining witnesses, and making a closing argument on
her behalf. Because Autumn failed to raise her due-process argument below, there has been
no development of the relevant facts, and we do not know whether she had an opportunity
to present testimony by deposition or other recorded means or if such testimony would have
influenced the outcome of the case. As a result, the only way we can address Autumn’s
underlying due-process argument is if we find that her attorney’s failure to insist upon her
presence at, or remote participation in, the termination hearing amounted to flagrant and
egregious error requiring the court to step in on its own accord. We cannot say that there
was any error that rose to that level. The trial court was presented with a situation that
appeared to comport with the well-established due-process requirements for conducting a
termination hearing in the parent’s absence. In this case, Autumn’s attorney presented her
case effectively, and it is very likely that Autumn’s deposition or recorded testimony would
not have influenced the outcome, given that it was undisputed that she had previously had
her parental rights terminated as to three of B.H.’s siblings, had ongoing drug problems, and
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was currently incarcerated and unable to care for the child. Under these circumstances, the
trial court could have reasonably assumed that all due-process safeguards had been met to
allow the termination hearing to proceed without Autumn. We cannot say that, given the
facts before it, the trial court should have stepped in and raised Autumn’s due-process
argument on its own. 3 Therefore, we hold that this issue does not fall within the third Wicks
exception, and we cannot address it due to lack of preservation.
Moreover, we note that Autumn’s ineffective-assistance-of-counsel arguments fail for
another reason: she has not demonstrated a reasonable probability that the court’s decision
to terminate her parental rights would have been different absent her attorney’s alleged
errors. See Abernathy v. State, 2012 Ark. 59, at 4, 386 S.W.3d 477, 481. Despite Autumn’s
allegations related to notice of the hearing and opportunity to participate, it is apparent that
her counsel presented Autumn’s case as well as possible, given the facts. Autumn and her
attorney had worked together on the case for several months, and her attorney demonstrated
a fairly thorough understanding of the case. We therefore disagree with Autumn’s statement
on appeal that “it appears that Autumn’s lawyer never spoke with Autumn about the
petition.” We cannot make such an inference based on the record before us. Her attorney
cross-examined each witness effectively, demonstrated that Autumn had met most of the
case-plan requirements, and provided alternative explanations for negative testimony. 4 Also,
3This is not to say that we are not troubled by the possibility that Autumn may not
have been given a full opportunity to participate in the termination hearing, only that we
cannot reach this issue due to her failure to raise it below.
4 For example, she elicited testimony that the residue from the meth house could
have caused Autumn’s positive drug screen and that the house could have made Autumn
sick, which could have explained her missed visitations.
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Autumn had previously had her parental rights terminated as to several other children, she
was incarcerated at the outset of this case and then again on new charges by the time the
court heard the termination hearing, she had no way to currently care for B.H. or do so in
the near future, she had tested positive for meth and alcohol, she had failed to obtain a safe
and appropriate home, she had missed numerous visitation opportunities with B.H., and she
provided no support for the child while he was in DHS care. Simply put, the facts
overwhelmingly favored termination of Autumn’s parental rights, and Autumn has not
demonstrated that her attorney’s alleged errors would have affected that outcome.
Finally, for the reasons just stated, we disagree with Autumn’s argument that the trial
court’s findings as to statutory grounds and best interest were clearly erroneous. The record
and the testimony provided ample support for the trial court’s findings, and we affirm.
Affirmed.
KINARD and GRUBER, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Mischa K. Martin, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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