Conway v. Arkansas Department of Human Services

Cite as 2015 Ark. App. 30

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-517

OPINION DELIVERED JANUARY 28, 2015
TIMOTHY CONWAY
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
TENTH DIVISION
V. [NO. 60JV-12-2264]

ARKANSAS DEPARTMENT OF HONORABLE JOYCE WILLIAMS
HUMAN SERVICES and MINOR WARREN, JUDGE
CHILD
APPELLEES AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Appellant Timothy Conway appeals the order filed March 21, 2014, by which the

Pulaski County Circuit Court terminated his parental rights to his daughter, T.C., born

November 20, 2012. He argues that there was insufficient evidence to support the

termination of parental rights. We affirm.

On November 20, 2012, Lawanna Bell—a Wrightsville prison inmate—gave birth to

T.C. Appellant, who is both Ms. Bell’s husband and T.C.’s legal father, wanted to care for

T.C., but he tested positive for illegal drugs. Additionally, his criminal history included

convictions for (1) raping a five-year-old female relative when he was a teenager; (2) failing

to register as a sex offender; (3) manufacturing and possessing a controlled substance; and (4)

possession of a firearm.
Cite as 2015 Ark. App. 30

On November 29, 2012, appellee, the Department of Human Services, (DHS) filed

a petition for emergency custody of T.C. because her mother was incarcerated, her

father—appellant—was a registered sex offender, and there were no other appropriate legal

caretakers willing to provide care for her. The case proceeded, and T.C. was adjudicated

dependent-neglected four months after the initial custody petition. The circuit court, given

appellant’s criminal history, declined to place custody of T.C. with appellant, stating,

[Appellant] was not—and is still not—appropriate to take [T.C.] into his physical
custody because he is a sex offender who is on parole, the conditions of which
required that he is not to be around children and not to be around any women with
children.

In its disposition order filed on January 16, 2013, the circuit court ordered T.C. to

remain in DHS’s custody and made guardianship and reunification with Ms. Bell concurrent

case goals. On May 16, 2013, the circuit court reviewed the case, ordered T.C. to remain

in DHS’s custody, and made no case-goal changes.

On August 22, 2013, the circuit court again reviewed the case, after which it ordered

T.C. to remain in DHS’s custody, and maintained the same concurrent case goals. But the

circuit court also made a finding that appellant had threatened DHS personnel, and the

circuit court questioned why no request for visitation suspension had been sought:

[Appellant] did visit [T.C.] until July 22, 2013, when, during [Ms. Bell’s] visitation,
he threatened the safety of certain DHS personnel. DHS not [sic] allowed him to visit
since July 23, 2013, which was his scheduled visitation date. The Court cannot
understand why the DHS attorney did not file an ex parte motion to suspend
visitation until at least today’s date.

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The circuit court suspended appellant’s visitation with T.C. until further order of the court

and expressed serious concerns about appellant’s “mental health condition and his propensity

for threatening behavior.”

On November 7, 2013, the circuit court conducted a permanency-planning hearing.

The circuit court found in its resulting order that, since the last hearing, appellant had been

incarcerated1 and remained an inappropriate placement for T.C. because of his sex-offender

status. At that time, the case goal was changed to adoption, authorizing DHS to file a

petition to terminate appellant’s parental rights. The petition to terminate was filed as to

both appellant and Ms. Bell on November 26, 2013. As to appellant, the petition referenced

not only his sex-offender status, but also his parole violation by being in the home with the

juvenile, safety concerns due to his violent behavior and threats to DHS staff, and lack of

stable employment or housing.

On February 20, 2014, the circuit court heard DHS’s termination petition, and the

matter was taken under advisement. On March 21, 2014, DHS’s petition was granted as to

both parents, the order stating in pertinent part that appellant failed to remedy issues that

arose subsequent to T.C.’s removal by DHS—citing his status as a sex offender, criminal

history, threatening behavior toward DHS during this case, and continued

incarceration—and also that appellant’s sentence of nine months constituted a substantial

period of T.C.’s life. On April 3, 2014, appellant filed his timely notice of appeal.

1
Eight months into the case, appellant began a nine-month sentence for a parole
violation. He was still incarcerated at the time of the termination hearing in March 2014,
scheduled potentially to be released two months after that hearing.

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

Servs., 2014 Ark. App. 717. Termination of parental rights is an extreme remedy and in

derogation of the natural rights of parents. Watson v. Ark. Dep’t of Human Servs., 2014 Ark.

App. 28. DHS must prove by clear and convincing evidence—that degree of proof that will

produce in the finder of fact a firm conviction as to the allegation sought to be

established—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. Jones, supra. In determining the

best interest of the juvenile, a circuit court must take into consideration (1) the likelihood

that the juvenile will be adopted if the termination petition is granted; and (2) 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. Id. When the burden of proof is clear and

convincing evidence, the inquiry on appeal is whether the circuit court’s finding that the

disputed fact was proved by clear and convincing evidence is clearly erroneous; 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.

Watson, supra. However, we give a high degree of deference to the circuit court, as it is in

a far superior position to observe the parties before it and judge the credibility of the

witnesses. Jones, supra.

A court may order termination of parental rights if it finds that there is an “appropriate

permanency placement plan” for the child, Ark. Code Ann. § 9-27-341(b)(1)(A) (Supp.

2013), and further finds by clear and convincing evidence that termination is in the best

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interest of the child, taking into consideration the likelihood of adoption and the potential

harm to the health and welfare of the child that would be caused by returning him or her to

the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).2 Finally, there must be

clear and convincing evidence supporting one or more of the grounds for termination listed

in section 9-27-341(b)(3)(B).

In this case, DHS alleged two grounds against appellant, both of which were included

in the findings by the circuit court: (1) that appellant failed to remedy issues that arose

subsequent to T.C.’s removal by DHS, and (2) that appellant’s sentence of nine months

constituted a substantial period of T.C.’s life.

Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii) provides what is often

referred to as the “subsequent factors” ground. It allows for termination of parental rights

if it is in the best interest of the child, and

[t]hat other factors or issues arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that return of the juvenile to the custody of the
parent is contrary to the juvenile’s health, or welfare and that, despite the offer of
appropriate family services, the parent has manifested the incapacity or indifference
to remedy the subsequent issues or factor or rehabilitate the parent’s circumstances
that prevent return of the juvenile to the custody of the parent.

In the petition and termination order, DHS and the circuit court referenced

appellant’s status as a sex offender as part of the “subsequent factors” preventing reunification.

2
Appellant does not contest the circuit court’s findings regarding the two “best
interest” factors—adoptability and potential harm. Accordingly, this argument is abandoned,
see Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006), and no
best-interest finding can be considered erroneous. Anderson v. Ark. Dep’t of Human Servs.,
2011 Ark. App. 522, 385 S.W.3d 367.

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Appellant argues that his sex-offender status is wholly irrelevant to this particular ground

because his status did not arise “subsequent to the filing of the original petition for

dependency-neglect,” which is what this provision addresses. Appellant’s sex-offender status

was, in part, the initial cause of T.C.’s removal, and he submits that there is a separate ground

that addresses a failure to remedy initial causes of removal, although DHS did not pursue

termination of appellant’s parental rights on that ground. See Jones v. Ark. Dep’t of Human

Servs., 2011 Ark. App. 632 (holding that courts may not alter or disregard the language of a

legislatively enacted ground for termination, and if the ground, as worded, does not fit the

facts of the case, it should not be used).

We disagree and hold that the circuit court’s subsequent-factors finding was not

clearly erroneous. Although appellant’s bad deeds with respect to his sex-offender status

occurred prior to this case, his threats to DHS personnel’s safety did not. Appellant

“threatened to blow up the DHS building,” and for the next several days thereafter, he made

more violent threats. The evidence presented indicated, and appellant admitted, that as a

teenager, he contracted a sexually transmitted disease “from one of the women he had been

fooling around with ....” This made him angry, and in response and out of admitted hate,

he raped his five-year-old relative. He served eleven years’ imprisonment on the rape

conviction, and afterward he had other criminal convictions, including gun charges, drug

charges, and theft of property. Appellant’s admitted criminal history provides context for his

present-day threats against DHS, and his historically violent behavior highlights the

seriousness of his present-day threats. The circuit court expressed, on multiple occasions,

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concern over appellant’s “mental health condition and his propensity for threatening

behavior.” Appellant’s behavior during the case constituted a factor arising subsequent to the

filing of the original petition and made it contrary to T.C.’s best interest to return to

appellant.

T.C. entered foster care on November 26, 2012, when she was six days old.

Appellant was incarcerated at the end of July 2013 for a parole revocation. At the time of

the termination hearing on February 20, 2014, appellant was not expected to be released

until at least May 2014. More importantly, appellant did not have a viable plan for himself

upon his release from prison regarding stable housing or employment. Appellant’s

incarceration and lack of a viable plan upon his release were additional issues that arose

subsequent to the filing of the original petition and made it not only inadvisable to place

T.C. in appellant’s custody but also impossible to do so. See Friend v. Ark. Dep’t of Human

Servs., 2009 Ark. App. 606, 344 S.W.3d 670. It was not error to terminate appellant’s

parental rights “in light of [appellant’s] obvious inability to provide a stable home for [the

child] within a time frame consistent with his development . . . or within a reasonable period

of time viewed from [the child’s] perspective.” Id. (internal citations omitted).

In addition to appellant’s incarceration, appellant remained in a committed

relationship with T.C.’s mother, Ms. Bell. Toward the end of the case, at the permanency-

planning hearing, when the goal changed to adoption, Ms. Bell stated that she intended to

separate from appellant, but the DHS worker doubted Ms. Bell’s statement and believed they

would remain in a relationship. Despite Ms. Bell’s incapacity to provide for T.C., appellant

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decided to remain in a relationship with her. Ms. Bell, throughout the case, was never fit

to obtain custody of T.C., and her rights were eventually terminated because she could not

provide the necessary care for T.C. Ms. Bell did not appeal the termination of her parental

rights. This court has affirmed termination cases where a parent continued to have contact

with someone who adversely impacted the family’s stability or welfare. See Cariker v. Ark.

Dep’t of Human Servs., 2011 Ark. App. 574, 385 S.W.3d 859; Tadlock v. Ark. Dep’t of Human

Servs., 2009 Ark. App. 841, 372 S.W.3d 403.

Appellant’s status as a sex offender is also important and relevant because his status

prohibited him from having unsupervised contact with children. Appellant’s decision to

remain married to Ms. Bell left Ms. Bell as the person who would have to supervise

appellant’s contact with T.C. There was concern that Ms. Bell did not fully appreciate the

gravity of appellant’s status as a sex offender, and accordingly that she would not sufficiently

protect T.C. The testimony was that Ms. Bell was “not up to the task of providing

supervision for [appellant]. . . .” DHS made a referral for appellant regarding his sex-offender

status, but he did not follow up on those services.

We hold that the circuit court properly terminated appellant’s parental rights under

section 9-27-341(b)(3)(B)(vii)(a) and that DHS proved that (1) other factors or issues arose

subsequent to the filing of the original petition; (2) those factors made it contrary to the

juvenile’s health, safety, or welfare for the juvenile to be returned to the parent; and (3)

despite the offer of appropriate family services, the parent has manifested the incapacity or

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indifference to remedy the subsequent issues or factors or rehabilitate the parent’s

circumstances. Id.

Although appellant argues that DHS did not demonstrate that appropriate family

services were offered to him, the record before us does not reflect that he raised this

argument before the circuit court. This court has repeatedly stated that it will not address

a reasonable-efforts argument raised for the first time on appeal. Warren v. Ark. Dep’t of

Human Servs., 2014 Ark. App. 469, 441 S.W.3d 72; see also Landis-Maynard v. Ark. Dep’t of

Human Servs., 2011 Ark. App. 673, 386 S.W.3d 641; Kelley v. Ark. Dep’t of Human Servs.,

2011 Ark. App. 481; Friend, supra. Appellant is therefore barred from making this argument

now for the first time on appeal.

Because only one statutory ground is necessary for termination of parental rights

pursuant to section 9-27-341(b)(3)(B), we need not address appellant’s argument regarding

the other ground for termination. See Tankersley v. Ark. Dep’t of Human Servs., 2012 Ark.

App. 109, 389 S.W.3d 96.

Affirmed.

VIRDEN and HIXSON , JJ., agree.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

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

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