Nicholas Burks, Sr. v. Arkansas Department of Human Services and Minor Children

Cite as 2021 Ark. App. 309
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION III
2023.06.29 12:31:18 -05'00' No. CV-20-738
2023.003.20215
Opinion Delivered September 1, 2021

NICHOLAS BURKS, SR.
APPELLANT APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT
V. [NO. 28JV-20-79]

ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE BARBARA HALSEY,
CHILDREN JUDGE
APPELLEES
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART

BART F. VIRDEN, Judge

The Greene County Circuit Court terminated the parental rights of appellant

Nicholas Burks, Sr. to his children, N.B. and Z.B. On appeal, Burks argues that the circuit

court erred in terminating his rights to Z.B. because the Arkansas Department of Human

Services (DHS) and the attorney ad litem (AAL) failed to establish that he is Z.B.’s “parent.”

Burks further argues that there was insufficient evidence to support the termination as to

both children on the aggravated-circumstances ground and asserts that termination of his

parental rights was premature. Burks does not appear to challenge the circuit court’s finding

that termination is in his children’s best interest. We affirm in part and reverse and remand

in part.
I. Background

On April 30, 2020, Sarah Speaight, a DHS family-service worker, went to the home

of Burks and Megan Fields, N.B. and Z.B.’s mother, in search of a child involved in a

separate case. Upon seeing the condition of the home, Speaight became concerned for

N.B.’s and Z.B.’s safety because the home was dirty and cluttered “to the point of being

hazardous to two young children.” When Speaight learned that Burks had an open

differential-response case involving allegations of drug use, she asked Burks to submit to a

drug screen. Burks refused and locked the DHS caseworkers out of the home. When

Speaight told the parents that she was placing a seventy-two-hour hold on N.B. and Z.B.,

Burks and Fields fled with the children through a back door. The children were located

several days later and taken into DHS custody. DHS filed a petition for emergency custody

and dependency-neglect as to then four-year-old N.B. and three-year-old Z.B. Attached to

the petition was Speaight’s sworn affidavit attesting to the above facts and identifying Burks

as the legal father of both N.B. and Z.B. Referring to Burks’s status as the parent, Speaight

wrote that “[t]his is reflected in court orders from previous foster care cases in 2016 and

2019.”

The circuit court entered an ex parte order for emergency custody of N.B. and Z.B.

and appointed legal counsel to represent both Burks and Fields and an AAL to represent the

children. On May 6, the circuit court found that the probable cause that necessitated the

emergency removal of the children from the parents’ custody continued to exist and that

the children would remain in DHS custody. The circuit court issued the standard welfare

orders and additionally ordered Burks and Fields to submit to random drug screens and to a

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drug-and-alcohol assessment if they tested positive. They were warned that any refusal to

submit to a drug screen would be considered a positive result and that they must follow the

recommendations of any assessment.

On August 6, the circuit court held an adjudication hearing and on September 22

entered an order finding that N.B. and Z.B. were dependent-neglected juveniles based on

inadequate supervision, environmental neglect, and parental unfitness. The circuit court

found that Burks is a “parent to [N.B.] for purposes of the Arkansas Juvenile Code because

his paternity was established in a prior DN case” but that Burks “needs to establish paternity

as to [Z.B.]” and “shall . . . submit to DNA testing.” Burks thereafter did not submit to

DNA testing and did not petition to establish paternity.

On September 30, the circuit court held a hearing on the AAL’s June 29 petition to

terminate parental rights and entered an order terminating the rights of both Burks and

Fields on the basis of aggravated circumstances in that there was little likelihood that services

to the family would result in successful reunification. Burks appealed from the termination,

but Fields did not; therefore, the mother is not a party to this appeal.

II. Standard of Review

Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2020), 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). Proof of only one statutory ground is

sufficient to terminate parental rights. Bridges v. Ark. Dep’t of Human Servs., 2019 Ark. App.

50, 571 S.W.3d 506. 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

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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).

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

Dep’t of Human Servs., 2019 Ark. App. 263, 576 S.W.3d 537. Grounds for termination of

parental rights 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. Id. In

resolving the clearly erroneous question, we give due regard to the opportunity of the circuit

court to judge the credibility of witnesses. Id. We must also defer to the superior position

of the circuit court to weigh the credibility of the witnesses. Bridges, supra. The circuit court

is in a far superior position to observe the parties before it. 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.

III. Discussion

A. Z.B.’s “Parent”

“Parent” means a biological mother, an adoptive parent, or a man to whom the

biological mother was married at the time of conception or birth or who has signed an

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acknowledgment of paternity pursuant to section 9-10-120 or who has been found by a

court of competent jurisdiction to be the biological father of the juvenile. Ark. Code Ann.

§ 9-27-303(41) (Repl. 2020). Burks argues that both DHS and the AAL failed to prove that

he is Z.B.’s “parent.” Burks did not make this argument below, but in a civil bench trial, a

party who does not challenge the sufficiency of the evidence at trial does not waive the right

to do so on appeal. Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 53, 431 S.W.3d 303. We

have said that establishing status as a parent is a “common sense element.” Terry v. Ark. Dep’t

of Human Servs., 2019 Ark. App. 591, at 7, 591 S.W.3d 824, 829. Burks contends that no

evidence was presented demonstrating that the issue of paternity had been resolved as to

Z.B. and that the circuit court did not make a finding that he is Z.B.’s parent. Burks relies

on Earls v. Arkansas Department of Human Services, 2017 Ark. 171, 518 S.W.3d 81, and

Northcross v. Arkansas Department of Human Services, 2018 Ark. App. 320, 550 S.W.3d 919.

In Earls, DNA testing in a dependency-neglect proceeding revealed that Earls was

the biological father to twins, and the circuit court later appointed legal counsel to represent

him; however, he was consistently recognized as a putative father, including in DHS’s

petition to terminate his parental rights. At the termination hearing, the circuit court noted

that Earls’s status as a parent needed to be addressed, and there was a short colloquy regarding

his status, but no order was entered finding him to be the twins’ parent. In fact, the circuit

court listed him as the putative father in the order terminating his parental rights. This court

affirmed the termination. On a petition for review, the Arkansas Supreme Court reversed

and remanded, holding that the circuit court had failed to establish the father’s status as a

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“parent” to the twins and thus could not terminate his rights. The supreme court noted that

there was no order in the record establishing Earls’s legal status.

In Northcross, the circuit court ordered the father to submit to DNA testing and to

establish paternity. In an amended termination petition, DHS argued that DNA testing

revealed that Northcross was the biological father; he had been appointed counsel at the

permanency-planning hearing; and he had sufficient contacts with the children. DHS asked

for a specific finding whether parental rights had attached. The circuit court terminated the

father’s rights without ever making a finding that he was the parent. The circuit court treated

Northcross as a putative father even in the termination order. This court, relying on Earls,

reversed the termination order and held that, without a finding establishing his status as a

parent, Northcross’s rights could not be terminated. We said, “This court cannot make a

finding regarding paternity when the circuit court deliberately did not do so.” Northcross,

2018 Ark. App. 320, at 13, 550 S.W.3d at 925. This statement referred to the circuit court’s

having reopened the hearing to comment that Northcross had not petitioned to establish

paternity.

In Tovias v. Arkansas Department of Human Services, 2019 Ark. App. 228, 575 S.W.3d

621, this court reversed a termination order because there was insufficient evidence to

support a finding that Tovias was a “parent.” In a permanency-planning order, the circuit

court had found Tovias to be the “legal father”; however, there was “absolutely no basis in

the record to support” the finding, and the circuit court had frequently interchanged the

terms “legal father” and “putative father.” Id. at 9–10, 575 S.W.3d at 626. This court said

that “Tovias’s status as ‘legal father’ is murky at best.” Id. at 10, 575 S.W.3d at 626.

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DHS points out that, in arguing on appeal that he was not shown to be Z.B.’s parent,

Burks is taking an inconsistent position from when he was before the circuit court. DHS

also argues that Burks was identified as a parent and treated as a parent but that, at minimum,

he was a putative parent because he claimed to be Z.B.’s father. “Putative father” means

any man not deemed or adjudicated under the laws of the jurisdiction of the United States

to be the biological father of a juvenile who claims to be or is alleged to be the biological

father of the juvenile. Ark. Code Ann. § 9-27-303(48). DHS asserts that Burks had the

burden to establish paternity pursuant to Ark. Code Ann. § 9-27-325(n)(4); see also M.S. v.

Ark. Dep’t of Human Servs., 2021 Ark. App. 77, 617 S.W.3d 731. According to DHS, the

circuit court’s adjudication order “is the one and only document in the record which clouds

Burks’s parental status.” DHS asserts that the order is unclear and that any ambiguity should

be resolved in favor of finding Burks to be Z.B.’s parent given the child’s need for

permanency.

In Terry, supra, this court said that “a lay person’s reference to himself as a father—or

even a DNA test showing a 99.9% probability that a man is the biological father of a child—

is insufficient to establish ‘parent’ status for purposes of the termination process until and

unless there is an express finding by the circuit court that the man is, in fact, a parent.” Terry,

2019 Ark. App. 591, at 8, 591 S.W.3d at 829 (emphasis in original). In Terry, this court also

rejected a similar inconsistent-position argument put forth by DHS.

We are further not convinced by DHS’s argument that section 9-27-325(n)(4) means

that Burks had the burden to prove that he is Z.B.’s parent. He had the burden to establish

paternity, but DHS and the AAL had the burden of proving that he is the parent for purposes

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of terminating his rights under the aggravated-circumstances ground. His status as the parent

is an element of proof, and the burden of proof is on the petitioner. Moreover, the AAL

did not petition to terminate Burks’s parental rights under the new ground in section 9-27-

341(b)(3)(B)(x), when a putative parent has not established paternity or significant contacts

with his or her child after (a) being named and served as a party in a dependency-neglect

proceeding; or (b) receiving notice of a dependency-neglect proceeding.

The AAL’s approach to Burks’s argument is different. The AAL argues that Burks

was declared to be, and treated as, the legal father of both N.B. and Z.B. at the outset of

the case—from the DHS caseworker’s sworn affidavit to the orders in which the circuit

court referred to Burks as the father and the parent. The AAL points out that Burks himself

testified that Z.B. is his daughter. According to the AAL, Burks induced, consented to, or

acquiesced in his treatment as a parent and cannot now complain. The AAL contends that

Earls and Northcross are distinguishable in that Burks was never a putative father; rather, he

was the father when the children were taken into custody, he was the father when he was

provided legal counsel, he was the father when he was provided services and visitation with

his children, and he was the father according to his own testimony. The AAL relies on

several cases; however, those cases are distinguishable.

In Brown v. Arkansas Department of Human Services, 2018 Ark. App. 104, 542 S.W.3d

899, we affirmed a termination order because the father had consented to, or acquiesced in,

the circuit court’s finding that his parental status had been determined in its prior review

order in a dependency-neglect proceeding. Here, despite the DHS caseworker’s sworn

affidavit attesting that Burks is the legal father of both N.B. and Z.B. based on previous

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cases, the circuit court appears to have rejected that assertion and ordered that Burks establish

paternity as to Z.B.

In Johnson v. Arkansas Department of Human Services, 2018 Ark. App. 221, 547 S.W.3d

489, we affirmed a termination order and held that the evidence showed that the father was

a parent. Johnson argued, essentially, that the failure to enter an order equated to a lack of

proof that he was the child’s “parent,” as required by the statute. We rejected that argument

because the circuit court had ordered Johnson to establish paternity and said that services

would begin once DNA testing confirmed that he was the biological father. Following the

DNA results, the circuit court added Johnson as a party to the style of the case. In its

termination order, the circuit court stated, “Regarding [appellant], he was putative father of

the child at the time the child was taken into care. He was ordered to receive services

identical to those offered to Mother. Additionally, he completed a referred DNA test that

showed him to be the biological father of the child.” Id. at 13, 547 S.W.3d at 498. We said

that, in light of the facts in that case, we could not hold that DHS failed to prove, or that

the circuit court failed to find, that Johnson was the child’s “parent.” Id. Here, the circuit

court named Burks as a party and appointed him legal counsel, but then the circuit court

made an issue of the fact that his parental status had not been determined as to Z.B. And,

thereafter, the circuit court made nothing that could even be construed as a finding, and, in

fact, heard no evidence upon which it could find, that Burks is Z.B.’s parent.

In Thacker v. Arkansas Department of Human Services, 2019 Ark. App. 379, 585 S.W.3d

698, the circuit court found that Thacker was the “non-custodial parent who is a legal

parent” in the adjudication order and found that the allegations in DHS’s petition for

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emergency custody were true and correct. Similarly, the AAL argues here that the circuit

court identified Burks as the noncustodial parent and said that he had contributed to the

dependency-neglect of the children. Thacker is distinguishable, however, in that an affidavit

attached to DHS’s petition for emergency custody indicated that Thacker had been married

to the child’s mother from January 5, 2010, through February 17, 2012, and that B.T. was

born in June 2011. Further, at the termination hearing, the family-service worker testified

that B.T. had been born during the marriage. Here, there was no evidence that Burks was

married to Fields at the time of Z.B.’s birth. There was some reference to prior orders, but

those orders were not introduced into evidence, and the circuit court specifically found that

Burks needed to establish paternity—despite those prior orders.

In summation, even though the circuit court treated Burks as a parent by making

him a party, referring to him as the father and the parent, appointing him legal counsel, and

ordering DHS to provide him services and visitation, the circuit court itself pointed out that

Burks’s legal status as Z.B.’s parent had not been established. The circuit court apparently

did not accept the contents of Speaight’s sworn affidavit, and those prior orders that were

referenced in the affidavit were not introduced into evidence. So after making Burks’s legal

status an issue, the circuit court did not resolve the matter before terminating Burks’s

parental rights to Z.B. According to supreme court precedent in Earls, the circuit court is

required to make a specific finding that Burks is Z.B.’s parent before terminating his rights.

Accordingly, we reverse and remand the order as it relates to Z.B. for proceedings not

inconsistent with this opinion.

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B. Aggravated Circumstances

There was an express finding that Burks is N.B.’s parent; therefore, we address the

aggravated-circumstances ground found by the circuit court to support termination of

Burks’s parental rights as to N.B. Aggravated circumstances, among other things, means that

a determination has been made by a court that there is little likelihood that services to the

family will result in successful reunification. Ark. Code Ann. § 9-27-

341(b)(3)(B)(ix)(a)(3)(A) & (B)(i). This type of aggravated circumstance occurs when a parent

is not following through with offers of assistance; the parent is not completing basic goals of

the case plan; and there is a lack of significant progress on the parent’s part. Wright v. Ark.

Dep’t of Human Servs., 2019 Ark. App. 263, 576 S.W.3d 537.

Burks argues that there was insufficient evidence to support the aggravated-

circumstances ground and that the AAL’s petition to terminate his parental rights was

premature. He asserts that much was made at the termination hearing of his prior history

with DHS. Burks points out that he was not given a drug-and-alcohol assessment with

respect to the second dependency-neglect case and that he was not given a referral for

inpatient drug treatment with respect to the present case despite the acknowledgement that

substance abuse was the primary reason for removal of the children. According to Burks,

had DHS focused on this one crucial service and given him a full year to rehabilitate himself,

there was a real chance that he could have reunited with his children. Burks asserts that the

circuit court could not predict that there is little likelihood that services would result in

reunification until time is allowed for the appropriate services to be provided to him.

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Burks admitted at the termination hearing that he had been using drugs for nine

years, primarily marijuana, but sometimes methamphetamine. Speaight testified that Burks

refused drug screens on April 30 and May 4 and 21; he tested positive for methamphetamine

and amphetamines on May 5; and he tested negative on August 12. Burks said that he had

sought drug treatment many times and that, after receiving drug rehabilitation in 2014, he

had stayed sober for sixteen months. Speaight discussed with Burks the results of his drug-

and-alcohol assessment in which it had been recommended that he attend thirty-six

outpatient classes. According to Burks, he attended one or two. Kloss v. Ark. Dep’t of Human

Servs., 2019 Ark. App. 389, 585 S.W.3d 725 (affirming termination on aggravated-

circumstances ground when father had persistent and unresolved drug issues, admitted

having a drug problem, and failed to follow through with drug treatment after completing

an assessment).

The evidence revealed that Burks has an extensive history with DHS. N.B. had been

placed in foster care in 2016, and both N.B. and Z.B. were in foster care in 2019. There

was a protective-services case in 2017 as to Z.B. In fact, the children had been returned to

Burks’s custody for only three months when they were removed again in connection with

the present case. In the previous cases, Burks had participated in services, followed the case

plan, and regained custody of his children. Speaight testified that there were no other

services that DHS could provide to Burks to accomplish reunification. Trogstad v. Ark. Dep’t

of Human Servs., 2020 Ark. App. 443, 609 S.W.3d 661 (affirming termination because

aggravated-circumstances ground was supported by evidence that the mother had an

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extensive history with DHS and that there were no further services that could assist with

reunification).

Unlike the previous cases in which Burks took advantage of the services offered,

Burks did not cooperate with DHS in the provision of services in the present case to the

point that he did not even visit with his children. While there were twenty-two scheduled

visits, Burks attended one four-hour visit and, according to Speaight, left after two hours

without explanation. Burks claimed that he had left thirty minutes early because he had a

job interview. Burks testified that he also had two Zoom visits with his children. Musick v.

Ark. Dep’t of Human Servs., 2020 Ark. App. 87, 595 S.W.3d 406 (affirming termination on

aggravated-circumstances ground because the fact that mother had missed twenty to twenty-

five visits with her children showed that her interest in reunification was questionable).

By the time of the termination hearing, Burks was incarcerated on multiple felony

charges with no scheduled trial date. Kohlman v. Ark. Dep’t of Human Servs., 2018 Ark. App.

164, 544 S.W.3d 595 (evidence supported finding that there was little likelihood of

reunification given father’s persistent criminal misconduct for which he was incarcerated for

the majority of the case). Burks was also still in a relationship with Fields, a drug addict who

did not appeal the termination of her parental rights. Burks even suggested that he had since

married Fields by referring to her as “Mrs. Burks.” Musick, supra (finding support for

aggravated-circumstances ground when there was proof that the mother was in a

relationship with a man whom she knew to be a drug addict).

Burks had been ordered to follow the recommendations of the drug-and-alcohol

assessment. Instead of attending thirty-six outpatient classes, he attended only one or two

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and complains that he should have been offered inpatient drug treatment. Inpatient drug

treatment, however, was not recommended. Aside from failing to undergo the

recommended drug treatment, Burks was neither working nor benefiting from the case

plan. The aggravated-circumstances ground does not require that DHS show that

meaningful services toward reunification were provided. Willis v. Ark. Dep’t of Human Servs.,

2017 Ark. App. 559, 538 S.W.3d 842. Also, with respect to Burks’s argument that

termination was premature, there is no time component to the aggravated-circumstances

ground as there is with, for example, the one-year failure-to-remedy ground. Moreover,

consideration can and should be given to the fact that these children have been in foster care

off and on since they were born. Williams v. Ark. Dep’t of Human Servs., 2013 Ark. App.

622 (the circuit court is free to consider the parent’s actions in previous dependency-neglect

proceedings in determining the appropriateness of termination). We cannot say that the

circuit court’s termination of Burks’s parental rights as to N.B. on the aggravated-

circumstances ground was clearly erroneous.

Affirmed in part; reversed and remanded in part.

BARRETT and VAUGHT, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

Callie Corbyn, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor children.

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