Reco Smith v. Arkansas Department of Human Services and Minor Child

Cite as 2025 Ark. App. 325
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-25-62

Opinion Delivered May 21, 2025
RECO SMITH
APPELLANT APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT
V. [NO. 56JV-23-124]

ARKANSAS DEPARTMENT OF HONORABLE CHARLES M.
HUMAN SERVICES AND MINOR MOONEY, JR., JUDGE
CHILD
AFFIRMED
APPELLEES

MIKE MURPHY, Judge

Appellant Reco Smith appeals from the Poinsett County Circuit Court’s termination

of his parental rights to Minor Child (MC), born August 26, 2022. 1 On appeal, he argues

sufficient evidence did not support the termination of his parental rights, challenging the

circuit court’s best-interest finding. We affirm.

The Arkansas Department of Human Services (DHS) has a history with this family.

Most recently on July 19, 2023, DHS filed a petition for emergency custody and dependency-

neglect of eleven-month-old MC alleging that she was dependent-neglected as a result of

abuse, neglect, or parental unfitness. The circuit court signed an ex parte order for emergency

1
Madison Biddle is MC’s biological mother whose rights were also terminated. She is
not a party to this appeal.
custody the same day. A probable-cause hearing was held on July 25. Smith had not yet been

served. His demographic information was unknown to DHS at the time of removal because

the biological mother was not cooperative in providing the information. The mother

stipulated to and the court found probable cause for DHS to take emergency custody of MC

and that probable cause continued to exist such that it was necessary and in the best interest

of MC to remain in the custody of DHS. MC was adjudicated dependent-neglected on

August 29 on the grounds of parental unfitness due to the mother’s drug use.

A review hearing was held on December 5, 2023. Smith appeared via Zoom. DHS

was found to have made reasonable efforts to provide family services and finalize a

permanency plan for MC. Smith was found to be noncompliant with the case plan because

he had been incarcerated throughout the case and unable to participate in services. DHS was

ordered to assist in DNA testing to establish his paternity.

A permanency-planning hearing was held on July 16, 2024. Smith was found to be

noncompliant with the case plan since he was still incarcerated and had been incarcerated

since the beginning of the case. The goal of the case was changed to adoption following

termination of parental rights with a concurrent goal of relative custody. DHS was ordered

to investigate relatives identified by Smith at the hearing for possible placement.

On July 19, DHS filed a petition for termination of parental rights. A hearing was

conducted on October 15. At the outset, the court entered an order declaring Smith to be

the legal father of MC and establishing his paternity. DHS introduced three exhibits without

objection, including two sentencing orders in criminal proceedings involving Smith.

2
Pertinent to the issue on appeal, testimony established the following. MC was now

two years old and thriving in her foster placement. She is adoptable, and the foster family

was interested in adopting her. DHS was unable to provide many rehabilitative services to

Smith because of his incarceration. Smith was arrested on July 17, 2023, and had been

incarcerated ever since. He was convicted of breaking or entering, a Class D felony, on

August 31, 2022, and sentenced to a period of seventy-two months’ probation. He was

convicted of robbery, a Class B felony, on November 27, 2023, and sentenced to a period of

thirty-six months’ incarceration. He had not seen MC in more than twelve months, and he

was uncertain MC was his child until the DNA test. Before his arrest, he was homeless and

did not have stable employment.

As ordered, DHS investigated Smith’s relatives for possible placement. Smith’s

mother, Lola Johnson Smith, was considered in April 2024 but was initially denied because

she lived in a senior housing facility that did not allow children, she had a true finding on

her record, and she did not have reliable transportation. She relied on the Medicaid van to

transport her to appointments. Lola was provided with information on what she would need

to correct to be reconsidered, and she had not fully made those corrections. The most

significant thing she had left to do was secure appropriate housing. Lola was provided with

a paper to complete and return to HUD, and as of the termination hearing, she had not

returned it. Lola had never met MC, and according to DHS, she often could not recall MC’s

name.

3
Lola testified and acknowledged that she was living in a senior facility that did not

allow children. She said she did not get the paperwork concerning assistance in housing that

allows children until about a month before the hearing. She is diabetic and received a letter

from her doctor saying she could take care of MC. Lola cared for her other grandchildren,

and they occasionally stayed the night. She has several grandchildren, the youngest being

several months old. Lola testified that she relies on her sons for transportation.

Mario Smith, a paternal uncle, was considered but not recommended. Before DHS

submits a packet on a person to be considered for placement, it runs a search in its system

and in CourtConnect. The search on Mario revealed that he had three prior true findings

for sexual contact with a minor when he was sixteen years old. Mario also had three criminal

convictions: a DWI from 2022; a charge for filing a false police report, careless and

prohibited driving, and leaving the scene of an accident in 2021; and a theft-of-property

charge in 2015. DHS did not believe Mario was an appropriate placement, so they did not

submit a packet for further review.

Mario testified that he and his wife live alone. The children he helped raise are grown

and out of the home. He has one minor child who is fourteen years old who lives out of state

with her mother. He has grandchildren who stay with them on the weekends. His home has

plenty of space and he has a stable job. Mario testified he and his wife have enough income

to provide for MC. He testified that about three to four months before the hearing, he

reached out to DHS about his desire to be considered as a placement for MC, but he had

not followed up. He was not aware of the true findings against him because he thought an

4
investigation determined he was not responsible, and the charges were dropped. Mario

acknowledged his criminal history pertaining to a hot check and two DWIs.

Anthony Smith, a paternal uncle, was also considered but not recommended. DHS’s

preliminary search found a true finding from 2009 for sexual penetration with a minor and

a true finding from 2019 for a subdural hematoma and a bone fracture pertaining to one of

his own children. Neither of the uncles had an established relationship with MC. Anthony

did not testify.

At the conclusion of the hearing, the circuit court ruled that it was granting the

petition and terminating Smith’s parental rights to his child. Specifically, the circuit court

terminated Smith’s parental rights on three grounds: his failure to maintain contact or

provide support, his substantial sentence in a criminal proceeding, and a finding of

aggravated circumstances. The written order was entered November 18, and Smith filed a

timely notice of appeal.

An order forever terminating parental rights shall be based on clear and convincing

evidence of one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2023). The

circuit court must also find by clear and convincing evidence that termination is in the best

interest of the child, including consideration of the likelihood that the child will be adopted

if the termination petition is granted and the potential harm, specifically addressing the

effect on the health and safety of the child, caused by returning the child to the custody of

the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

5
On appeal, termination-of-parental-rights cases are reviewed de novo. Burks v. Ark.

Dep’t of Hum. Servs., 2021 Ark. App. 309, 634 S.W.3d 527. Grounds for termination must

be proved by clear and convincing evidence, which is that degree of proof that will produce

in the finder of fact a firm conviction of the allegation sought to be established. Id. The

appellate 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 reviewing court on the entire evidence is left

with a definite and firm conviction that a mistake has been made. Bridges v. Ark. Dep’t of

Hum. Servs., 2019 Ark. App. 50, 571 S.W.3d 506. In resolving the clearly erroneous question,

we give due regard to the opportunity of the circuit court to judge the credibility of witnesses.

Id. Termination of parental rights is an extreme remedy and in derogation of a parent’s

natural rights; however, parental rights will not be enforced to the detriment or destruction

of the health and well-being of the child. Id.

Smith fails to challenge the circuit court’s findings regarding grounds or MC’s

adoptability and whether returning her to his custody would pose potential harm. Rather,

Smith makes a limited best-interest argument that the court erred in terminating his rights

when a less restrictive alternative existed with his relatives. He has not demonstrated clear

error in the circuit court’s best-interest finding.

The law concerning this issue was addressed in Goforth v. Arkansas Department of

Human Services, 2023 Ark. App. 233, at 28–29, 666 S.W.3d 138, 155–56:

6
We have previously explained that the State has an interest in finding a child
an alternative permanent home when a parent cannot adequately provide one. Ark.
Code Ann. §§ 9-27-341(c)(3), -360. And displaced children have a concurrent interest
in preserving relationships that serve their welfare and protection. Clark, supra.
Moreover, the General Assembly has enacted the policy that relatives are preferred
when placing children in permanent homes. See Ark. Code Ann. § 9-28-105 (Repl.
2020); Clark, supra. Our supreme court has made it clear that the statutory preference
that a juvenile be placed with a relative applies at all stages of a dependency-neglect
case. Ellis v. Ark. Dep’t of Hum. Servs., 2016 Ark. 441, at 10, 505 S.W.3d 678, 683; see
also Ark. Code Ann. § 9-28-105.

Consistent with the premise of preserving family ties and relative placement,
Arkansas Code Annotated section 9-27-329(d) (Supp. 2021) provides that in initially
considering the disposition alternatives and at any subsequent hearing, the court shall
give preference to the least restrictive disposition consistent with the best interest and
welfare of the juvenile. Our appellate courts have extended this least-restrictive-
alternative consideration throughout the life of a dependency-neglect case and
acknowledged that the least restrictive alternative is a relevant inquiry at a
termination-of-parental-rights hearing. See Dominguez v. Ark. Dep’t of Hum. Servs., 2020
Ark. App. 2, 592 S.W.3d 723. Because the rights of a relative, including a
grandparent, to the extent the relative has rights, are derivative of the rights of the
parent, we aptly noted in Clark that if a child is not placed with a grandparent prior
to termination, “it is unlikely a court will allow them to adopt the children later.”
Clark, 2019 Ark. App. 223, at 19, 575 S.W.3d at 589.

Here, Smith and his relatives did not have a prior relationship with MC and had not

spent any time with her. Smith was incarcerated throughout the entirety of the case and did

not identify family members as a potential placement until about a year after MC had been

taken into custody. While Smith concedes that Lola was denied placement due to her

housing, he argues that his brothers were not truly considered or investigated. However,

DHS conducted a preliminary investigation but declined to pursue these relatives further

because of true findings for abuse or neglect.

7
He contends that his situation is akin to Borah v. Arkansas Department of Human

Services, 2020 Ark. App. 491, 612 S.W.3d 749, where this court reversed and remanded a

termination finding due to the circuit court’s failure to consider placement with relatives.

Borah is distinguishable.

In Borah, the evidence showed that the grandmother had made numerous attempts

to become a placement option at various stages of the case over the course of several months

before DHS took any action on her requests. Additionally, the grandmother testified that

she had a good relationship with the child. In this case, there is no evidence of a preexisting

relationship or demonstration of any type of bond and no indication that the relatives

continued to reach out to DHS for placement. Also in Borah, the foster parents did not

intend to adopt the child, whereas there was evidence here that the foster parents desire to

adopt MC.

Considering the facts of this case and given our high deference to the circuit court’s

determination of the evidence and the credibility of the witnesses, we cannot say that the

circuit court clearly erred when it determined that terminating Smith’s parental rights was

in MC’s best interest.

Affirmed.

VIRDEN and BARRETT, JJ., agree.

Elizabeth James, Arkansas Commission for Parent Counsel, for appellant.

Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for

appellee.

8
Dana McClain, attorney ad litem for minor children.

9