CourtListener 4345004•Earls v. Arkansas Department of Human Services
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Cite as 2017 Ark. App. 53
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CV-16-752
Opinion Delivered: February 1, 2017
JACOB EARLS
APPELLANT APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
V. [NO. 28JV-2014-099]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILDREN HONORABLE BARBARA HALSEY,
JUDGE
APPELLEES
AFFIRMED
BART F. VIRDEN, Judge
Jacob Earls appeals the order of the Greene County Circuit Court terminating his
parental rights. Earls asserts that the circuit court erred in finding that there was sufficient
evidence to support statutory grounds for termination. Based on our review, we are not left
with a definite and firm conviction that the circuit court’s statutory-grounds findings were
in error, and we affirm.
I. Facts
On July 27, 2014, twins S.M. and D.M. (b. 7/16/2014) were removed from their
mother’s custody due to the presence of methamphetamine in their systems. A hearing was
held on July 31, 2014, and in the subsequent order the circuit court found that probable
cause existed to remove the children from the custody of their mother, Charity Sessums.
The circuit court noted that Earls was a putative father, that his whereabouts were unknown,
that he had not been served, and that he was not present for the hearing. The Arkansas
Cite as 2017 Ark. App. 53
Department of Human Services (Department) was ordered to develop a case plan and make
diligent efforts to discover Earls’s location, and Earls was ordered to establish paternity.
On August 19, 2014, the circuit court adjudicated the children dependent-neglected.
Earls did not appear at the hearing. In the written order, the circuit court found that the
process server had attempted to serve Earls, but was unable to because his attempts were
“actively avoided by the parent(s). The court finds that the Department has made thorough
and diligent efforts to locate the mother and putative fathers.” The Department was ordered
to provide standard welfare services and develop an appropriate case plan. The parents were
ordered to comply with the case plan, with the court’s orders, and with any reasonable
Department requests. A review hearing was set for January 15, 2015.
An amended petition for dependency-neglect was filed January 12, 2015. Earls’s
address was listed in the amended petition and “abandonment” was added to the grounds
supporting the Department’s assertion of dependency-neglect. A second amended petition
was filed on January 13, 2015, and it set forth that the Department had concerns about
service of process and was seeking a new adjudication on the parents. The Department
reiterated that abandonment was among the causes of the dependency/neglect. On the
same date, the Department filed a motion on Earls’s behalf, requesting that the circuit court
order a DNA test to establish Earls’s paternity. The circuit court granted the motion on
January 15, 2015.
On March 31, 2015, Earls filed a pro se answer to the second amended petition for
dependency neglect. In it, he listed several relatives he felt would be placement options for
the children. On April 23, 2015, the circuit court entered an adjudication-and-review order
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finding that the children were dependent-neglected due to the presence of controlled
substances in their systems at birth. The circuit court found that Earls was incarcerated and
had been served on January 27, 2015, via service on the warden. The circuit court found
that the Department had made reasonable efforts to provide services. The parents were
ordered to cooperate and maintain contact with the Department, obey all orders of the
court, watch “The Clock is Ticking,” complete parenting classes, and submit to drug
screening. The putative fathers were ordered to establish paternity.
On May 1, 2015, the DNA test results were filed with the court, and they showed
that Earls’s probability of paternity was 99.99%.
On August 28, 2015, the circuit court entered a permanency-planning order. In it
the circuit court found that Earls had not established significant contacts with the children
and his parental rights had not attached. The circuit court found that Earls was incarcerated
and that his projected release date was September 7, 2015. Earls did not appeal the
permanency planning order.
On January 8, 2016, the Department filed a petition for termination. In its petition
it cited two statutory grounds regarding Earls: (1) Arkansas Code Annotated section 9-27-
341(b)(3)(B)(i)(b)(Repl. 2015)—that the children had lived out of the home of the
noncustodial parent for twelve months, and despite meaningful efforts by the Department
to rehabilitate Earls and correct the conditions that prevented placement with Earls, the
conditions had not been remedied by him; and (2) Arkansas Code Annotated section 9-27-
341(b)(3)(B)(ii)(a)—that the children had lived outside the parents’ home for twelve months,
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and that Earls had failed to provide financial support or maintain meaningful contact with
the children.
On March 30, 2016, the circuit court held a termination hearing at which Earls
appeared and was represented by counsel.
Marsha Bobo, the family service worker assigned to the case, testified that because
Earls was incarcerated, services could not be provided to him; however, she also testified
that the Arkansas Department of Correction offered some of the same services that the
Department provided, such as parenting classes and counseling. Bobo testified that she did
not know if the Department had contacted Earls regarding the services offered at the
Cummins Unit, and she confirmed that his case file did not mention any discussion of
services. Bobo testified that she was unaware of Earls contacting the Department or of any
requests for visitation with the children. Bobo testified that placing the children with Earls
was impossible because he was in prison. Bobo testified that in the case of extenuating
circumstances, such as imprisonment, the Department should make accommodations in the
case plan.
Bobo testified that the children are adoptable and the foster parent with whom the
children had lived since their removal was in a position to adopt.
Earls testified that he would like the children to be placed in his custody when he is
released from prison. He testified that he thought he would be released in two-to-three
months, but that his sentence that was issued on December 22, 2014, was for 5 years. Earls
testified that he received a letter dated September 17, 2014, notifying him that the children
were in the Department’s custody and inviting him to a “family centered meeting.” Earls
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testified that when he arrived at the scheduled time of 3:00 he discovered that the meeting
had already taken place at 8:00 that morning. Earls testified that he was served with a case
plan, but that there were requirements in it that he could not meet, such as watching the
video “The Clock is Ticking” and going to counseling in Paragould.
Earls testified that he had contacted the Department over the course of the case and
that he had requested a DNA test by filing a motion with the court. He explained that he
had written letters to legal counsel for the Department and the Office of Child Support
Enforcement. He also testified that he had taken three classes since he had been incarcerated,
but that the parenting classes were backlogged and he could not get a place in them.
Earls made a motion to dismiss and argued that the Department had not made
meaningful efforts to rehabilitate him, despite his efforts to contact the Department; thus,
section 9-27-341(b)(3)(B)(i)(b) could not be cited as a ground supporting the Department’s
petition to terminate his parental rights. Earls also argued that Arkansas Code Annotated
section 9-27-341(b)(3)(B)(ii)(a) could not be cited as grounds supporting termination
because he was indigent and incarcerated and therefore unable to support his children
financially. Earls argued that the Department’s allegation that Earls failed to maintain
meaningful contact with his children was false because he had attempted to contact the
Department regarding his children several times.
In response, the Department argued that Earls had made no attempt before his
incarceration to contact his children, that it does not transport children to prison to visit
incarcerated parents, that there are no services that could correct the condition of Earls’s
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incarceration, and that the children could not be placed with him because of his
incarceration.
The attorney ad litem asserted that although the Department had not made efforts
regarding Earls, it was not the Department’s fault that the condition of his incarceration had
not been remedied.
The circuit court denied Earls’s motion to dismiss and terminated his parental rights.
Counsel for Earls requested a ruling on whether the Department had made sufficient efforts
regarding Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b), and the circuit court
stated from the bench:
I am. I am making that. Mr. Earls was not able to articulate any effort that he needed
by the Department which he knows that the Department is able to provide, and the
Department has not indicated any efforts that they could have made that are known
to them. So, yes, I am making that finding.
Counsel for Earls responded, “just for clarification, your honor, that the Department has
made meaningful effort?” and the court responded, “I’m finding that 5(b) is a grounds for
termination, yes.”
The circuit court entered the order terminating Earls’s parental rights on May 26,
2016. In the order, the circuit court found that termination was supported by Arkansas Code
Annotated section 9-27-341(b)(3)(B)(i)(b) and by Arkansas Code Annotated section 9-27-
341(b)(3)(B)(ii)(a). The circuit court found that Earls had not remedied the conditions that
prevented the children from being placed with him, namely incarceration and lack of stable
housing or employment. The circuit court also found that before Earls was incarcerated he
had made an effort to gain information about his children but that Earls had never attempted
to contact the children or visit them, and that he had never materially or monetarily
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supported the children. The circuit court found that “Mr. Earls has not maintained
meaningful contact with the children.”
Earls filed a timely notice of appeal.
II. Points on Appeal
Earls argues that the circuit court erred in finding sufficient evidence supported the
statutory grounds for terminating his parental rights. First, Earls asserts that the circuit court
did not recognize him as the biological father until the termination order; thus, Arkansas
Code Annotated section 9-27-341(b)(3)(B)(i)(b) did not apply to him for the requisite
twelve months. Second, Earls asserts that the Department failed to make reasonable efforts
to provide services and that his incarceration was not a valid reason for not offering services
to him. Third, Earls argues that he had never been ordered to financially support his
children; thus, terminating his parental rights based on Arkansas Code Annotated section 9-
27-341(b)(3)(B)(ii)(a), the statutory ground of failure to provide material support, could not
be applied to him. Earls also argues that he had not willfully failed to maintain contact with
his children. Earls does not challenge the circuit court’s finding that the children are
adoptable, nor does he challenge the sufficiency of the circuit court’s best-interest finding. 1
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As we noted earlier, Earls never appealed the permanency planning order in which
the circuit court found that his parental rights had not attached, nor does he argue on appeal
that his rights had not attached and therefore should not have been terminated. Earls is
referred to as the legal father of the children in the Department’s petition for termination,
he was appointed counsel for the termination hearing by the court and the circuit court
referred to him as the father of the children in the termination order, though he was still
listed as “putative father” in the case heading.
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A. Standard of Review
We review termination-of-parental-rights 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, but parental rights will
not be enforced to the detriment or destruction of the health and well-being of the child.
Id. Only one ground need be proved to support termination. McGaugh v. Ark. Dep’t of
Human Servs., 2016 Ark. App. 485, at 7, ___S.W.3d ___, ___. That it is in the child’s best
interest to terminate those rights must be proved by clear and convincing evidence. M.T.
v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear 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. Vail v. Ark. Dep’t of Human Servs.,
2016 Ark. App. 150, at 10, 486 S.W.3d 229, 234. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire evidence is left
with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t
of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
B. Applicable Law and Analysis
We begin our analysis with Earl’s third argument regarding Arkansas Code
Annotated section 9-27-341(b)(3)(B)(ii)(a) which sets forth that parental rights may be
terminated if
[i]he juvenile has lived outside the home of the parent for a period of twelve
(12) months, and the parent has willfully failed to provide significant material support
in accordance with the parent’s means or to maintain meaningful contact with the
juvenile. To find willful failure to maintain meaningful contact, it must be shown
that the parent was not prevented from visiting or having contact with the juvenile
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by the juvenile’s custodian or any other person, taking into consideration the distance
of the juvenile’s placement from the parent’s home.
In the order terminating Earls’s parental rights, the circuit court found that Earls “had
never visited the children, provided material or monetary support. Mr. Earls has not
maintained meaningful contact with the children.” At the termination hearing, Earls
explained that, when the twins were born, he was living with his grandmother and did not
have contact with Charity and did not know how to get in touch with her. Earls testified
that he was not positive at that time that the children were his, but that he knew that it was
a possibility that he was the father. At some point before the case was opened and before
Earls’s arrest, Earls had asked a friend to call Charity’s father to ask about the children. Earls
testified that “He [the children’s grandfather] said they were doing good and leave them
alone. So I did.” There was no evidence presented that Earls tried to have paternity
established or visitation ordered before his arrest in August or before the
dependency/neglect case was opened. There was also no evidence presented that he had
tried to monetarily support his children while he was not incarcerated, or that he had tried
to contact Charity after he had been told to leave them alone.
After the dependency/neglect case was opened, Earls contacted the Department by
letter. First, he motioned the court for an order to conduct a DNA test in January 2015,
about six months after the children were born and removed from their mother’s custody.
In Earls’s subsequent letter to Benjamin Pollitzer, a Department attorney with the Office of
Policy and Legal Services, Earls requested that six of his family members be considered for
placement, and he again requested DNA testing.
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Though Earls filed certain pleadings in the case after his incarceration and after the
dependency/neglect case had been opened, Earls failed to assert his parental rights or
establish contact with his children. Furthermore, there was no evidence presented indicating
that the Department prevented Earls from contacting the children.
III. Conclusion
We affirm on this point. Because only one statutory ground must be proved in order
to support termination of parental rights, we need not reach Earls’s arguments regarding the
other statutory grounds.
Affirmed.
GRUBER, C.J., and HIXSON, J., agree.
Leah Lanford, Ark. Pub. Defender Comm’n, for appellant.
Andrew Firth, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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