Caruthers v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 230

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-1129

Opinion Delivered: April 12, 2017
DAKOTA CARUTHERS
APPELLANT APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
V. [NO. 28JV-15-94]

ARKANSAS DEPARTMENT OF HUMAN HONORABLE BARBARA HALSEY,
SERVICES AND MINOR CHILD JUDGE
APPELLEES
AFFIRMED

MIKE MURPHY, Judge

Dakota Caruthers appeals the April 4, 2016 order terminating his parental rights to

E.C. He argues the lower court erred in (1) denying his motion to dismiss and (2) finding

termination was in E.C.’s best interest. 1 We affirm.

I. Facts

The Arkansas Department of Human Services (DHS) exercised emergency control

over then three-month-old E.C. on May 18, 2015, upon notice that the child’s parents had

been incarcerated in Missouri on shoplifting charges. A little over a month later, E.C. was

adjudicated dependent-neglected for inadequate supervision, because he lacked an

appropriate caregiver. The case progressed through two review hearings. Caruthers did not

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E.C.’s mother’s parental rights were also terminated as part of the order, but she is
not a party to this appeal.
Cite as 2017 Ark. App. 230

appear for either of the hearings. The court found at both hearings that Caruthers was

partially compliant with the case plan, but he had never completed the drug-and-alcohol

assessment ordered. The court continued both hearings with the goal of reunification.

DHS filed its petition to terminate parental rights on April 4, 2016, alleging the

grounds of failure to remedy, failure to provide material support, subsequent factors, and

aggravated circumstances. The goal of the case was changed to adoption, and the

termination hearing was set for August 4, 2016. Multiple motions to continue ensued, and

each one was accompanied by a written order of the court articulating good cause as to why

the hearing should be moved. The hearing was eventually held on September 9, 2016, 157

days after the filing of the petition.

At the hearing, Holly Johnson, the DHS caseworker, testified that her main concern

with Caruthers was his lack of stable housing. She testified that, while Caruthers did have

housing throughout the case, he had moved all over town during that time, DHS had

sometimes been unable to find him, and DHS had never been able to visit the home, despite

multiple attempts. She also expressed concerns that he had changed jobs multiple times

during the pendency of the case.

Caruthers testified that, if the court allowed, he could take E.C. home with him that

day—he had diapers, wipes, baby food, formula, and a crib—but he also acknowledged that

he did not have stable housing. He explained that he made more money at each subsequent

job he took.

Caruthers admitted that he did not have his own place—he was living with a friend

in an apartment—and that he did “have some trouble just kind of getting through life,

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maintaining a stable place, stable job, and making contact with the probation officers.” He

testified that he had been incarcerated on two more occasions while the case was ongoing.

The court also heard testimony from an adoption specialist.

The court terminated Caruthers’s parental rights, finding that doing so was in E.C.’s

best interest. The court noted that, while incarceration was the initial reason for removal,

after the removal the family was unable to establish stable housing. In its written order, the

court specifically found that

[t]he parents have not demonstrated to the Court that they can provide a safe stable
home for the juvenile. The parents have not maintained consistent contact with
[DHS], maintained stable employment, or demonstrated that they can provide a safe
stable home for the juvenile. The father testified that he had been incarcerated three
times since the juvenile came into Department custody. He further testified that he
now makes $700 a week but that he has not had enough money to establish a safe
stable home for the juvenile.

II. Standard of Review

We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of

Human Servs., 2015 Ark. App. 131, at 4–5, 456 S.W.3d 383, 386. It is DHS’s burden to

prove by clear and convincing evidence that it is in a child’s best interest to terminate

parental rights as well as the existence of at least one statutory ground for termination. Id.

On appeal, the inquiry is whether the circuit court’s finding that the disputed fact was

proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly

erroneous when, although there is evidence to support it, the appellate court, on the entire

evidence, is left with a definite and firm conviction that a mistake has been made. Id. We

give a high degree of deference to the circuit court, because it is in a far superior position

to observe the parties before it and judge the credibility of the witnesses. Id.

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Cite as 2017 Ark. App. 230

III. Motion to Dismiss

Caruthers first argues that the trial court erred in denying his motion to dismiss the

termination-of-parental-rights petition, because it was not heard within ninety days of the

date it was filed. See Ark. Code Ann. § 9-27-341(d) (Repl. 2015) (“The court shall conduct

and complete a termination of parental rights hearing within ninety (90) days from the date

the petition for termination of parental rights is filed unless continued for good cause as

articulated in the written order of the court.”). The trial court denied the motion because

counsel had agreed to the dates of the hearings, good cause was demonstrated for each one,

and there was no objection when the hearings were set. Our standard of review for the

denial of a motion to dismiss is whether the trial court abused its discretion. Newman v. Ark.

Dep’t of Human Servs., 2016 Ark. App. 207, at 8, 489 S.W.3d 186, 192.

On appeal, Caruthers argues that “the trial court originally scheduled the

termination hearing for August 4, 2016, which was beyond the ninety-day time limit,” and

that “[t]here was no ‘good cause’ set forth explaining why the originally scheduled hearing

was set for four months from the date the Department filed its petition.” A careful review

of the record, however, demonstrates that is not the case.

The petition to terminate originally stated a termination hearing was to be held on

May 31, 2016. An “Order of Continuance” was entered on April 14, 2016 “by agreement

of the parties” and “due to a lack of time to hear the docket” resetting a “permanency

planning and termination hearing” for May 26, 2016. On May 26, 2016, another “Order

of Continuance” was entered “by agreement of the parties” resetting the case for August 4,

2016. In that written order, the court found that good cause was shown because Caruthers’s

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attorney was new to the case and needed adequate time to prepare. The hearing was

continued twice more from that August 4, 2016 date, and only one of those was reduced

to a written order, but Caruthers’s initial point that the original hearing was set outside the

90-day limit without good cause is not well taken.

Even if the court did not articulate good cause, Caruthers’s argument fails because,

while the applicable statute does provide that a hearing “shall” be held within ninety days,

a trial court does not lose jurisdiction in this instance. The argument that it does was

expressly addressed and rejected in Hill v. Arkansas Department of Human Services, 2012 Ark.

App. 108, 389 S.W.3d 72. There, we held that, while the applicable statute spoke in

mandatory terms, a loss of jurisdiction did not follow because the General Assembly did not

provide a sanction for an untimely filing and because there was no evidence that such a

result was intended. Id. at 5, 389 S.W.3d at 75.

Furthermore, reversal is not appropriate in the absence of a showing of prejudice

resulting from the delay. Id. Nowhere in Caruthers’s argument does he discuss how he was

harmed in any way by the delay, especially considering one of the continuances was so that

his own attorney could be better prepared for the trial. The trial court did not abuse its

discretion in denying Caruthers’s motion to dismiss.

IV. Best Interest

The termination of parental rights is a two-step process that requires the circuit court

to find that the parent is unfit and that termination is in the best interest of the child. The

first step requires proof of one or more of the statutory grounds for termination. Ark. Code

Ann. § 9-27-341(b)(3)(B). The other step requires consideration of whether the termination

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of parental rights is in the children’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). The

best-interest determination must consider the likelihood that the children will be adopted

and the potential harm caused by returning custody of the children to the parent. Spencer v.

Ark. Dep’t of Human Servs., 2013 Ark. App. 96, at 5–6, 426 S.W.3d 494, 498. The court,

however, does not have to determine that every factor considered be established by clear

and convincing evidence. Id. Instead, after considering all the factors, the evidence must be

clear and convincing that the termination is in the best interest of the child. Id.

Caruthers argues that there was insufficient evidence to demonstrate a risk of

potential harm to E.C. to support the trial court’s best-interest finding. He does not argue

the grounds or the child’s adoptability and therefore waives those issues on appeal.

This court and our supreme court have stated, time and again, that a failure to provide

appropriate housing is contrary to the best interest of children. See, e.g., Selsor v. Ark. Dep’t

of Human Servs., 2017 Ark. App. 182, __S.W.3d__ (collecting cases). A stable home is one

of a child’s most basic needs, and that cannot be ignored. See id.

The determination of potential harm is forward-looking by its very nature. Dowdy v.

Ark. Dep’t of Human Servs., 2009 Ark. App. 180, at 13, 314 S.W.3d 722, 728–29. Caruthers

admitted his housing was “not stable right now” and that “I do think that maybe I have

some trouble just kind of getting through life, maintaining a stable place, stable job, and

making contact with probation officers.” Caruthers was put in jail on three separate

occasions during the pendency of the case. The trial court did not err in looking at

Caruthers’s past instability and concluding that there was nothing to demonstrate that he

would be able to acquire or maintain safe, stable housing in the future.

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Furthermore, the intent of the juvenile code is to provide permanency in a juvenile’s

life, and the evidence must be viewed from the juvenile’s perspective. Ark. Code Ann. § 9-

27-341(a)(3). At the time of the termination hearing, E.C. had been in foster care for

approximately sixteen of his eighteen months of life.

We certainly realize that termination of parental rights is an extreme remedy and is

in derogation of the natural rights of the parents. Linker-Flores v. Ark. Dep’t of Human Servs.,

359 Ark. 131, 137, 194 S.W.3d 739, 744 (2004). However, parental rights should not be

allowed to continue to the detriment of the child’s welfare and best interest. Id. Here, the

evidence demonstrated that returning E.C. to the custody of his father was not in the child’s

best interest.

Affirmed.

GLADWIN and HARRISON, JJ., agree.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

Andrew Firth, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

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