Cecilia St. John v. Arkansas Department of Human Services and Minor Child

Cite as 2024 Ark. App. 450
ARKANSAS COURT OF APPEALS
DIVISION I

No. CV-24-268

Opinion Delivered September 25, 2024
CECILIA ST. JOHN
APPELLANT APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
[NO. 35JV-22-533]
V.
HONORABLE EARNEST E. BROWN,
ARKANSAS DEPARTMENT OF JR., JUDGE
HUMAN SERVICES AND MINOR
CHILD
APPELLEES AFFIRMED

RITA W. GRUBER, Judge

Cecilia St. John appeals the January 31, 2024 Jefferson County Circuit Court order

terminating her parental rights to her minor child, MC. St. John does not challenge the

sufficiency of the evidence supporting the circuit court’s findings regarding the statutory

grounds for termination, adoptability, or potential harm. Rather, St. John asserts that the

circuit court abused its discretion when it denied her motion to continue the termination

hearing. We affirm.

I. Background

The Arkansas Department of Human Services (DHS) filed a petition for emergency

custody and dependency-neglect on November 21, 2022, alleging that MC was dependent-
neglected on the basis of parental unfitness and neglect.1 On November 22, the circuit court

entered an order granting DHS’s request for emergency custody. A probable-cause hearing

was held that same day, and the circuit court found that probable cause existed for the

emergency order to remain in place.2

The circuit court held the adjudication hearing on January 12, 2023, finding that MC

was dependent-neglected due to inadequate supervision and parental drug use. 3 The circuit

court further found that there was “not a non-custodial parent who is a legal parent of the

juvenile but does not have custody.” The court also found that it and DHS had been

provided with the names of all the “adult grandparents and other adult relatives of” MC as

well as “all legal putative fathers” of MC. The circuit court set a goal of reunification with a

fit parent.

A review hearing was held on March 16, 2023.4 The circuit court ordered that MC

remain in DHS custody and continued the goal of reunification with a fit parent. The circuit

court found that DHS had complied with the case plan and court orders and made

1
This was due to St. John’s ongoing methamphetamine use, her having an active
warrant for probation violation, minimal food in the home, a previous true finding regarding
St. John for failure to protect, and a recent incident in which MC, who was not quite two
years old, was found unattended in the middle of a street.
2
St. John was not present but was represented by counsel.
3
St. John was again not present but was represented by counsel.
4
St. John was once more not present but was represented by counsel.

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reasonable efforts to provide services and finalize a permanency plan for MC. The court

further found that St. John had not complied with the case plan or court orders.

A permanency-planning hearing was held on June 29, 2023.5 The circuit court

accepted DHS’s recommendation that the goal of the case be changed to adoption, given St.

John’s failure to comply with court orders and the case plan as well as her failure to ever

appear before the court or participate in DHS services. The circuit court found that

aggravated circumstances existed and that there was little likelihood that services would result

in a successful reunification. The court also found that DHS had made reasonable efforts to

provide family services and had complied with the case plan and orders of the court.

On July 21, 2023, DHS filed a petition to terminate St. John’s parental rights as well

as all “known and unknown parents and putative parent’s parental rights” to MC. The

petition alleged four grounds in support of termination, none of which are at issue on appeal,

and that termination would be in MC’s best interest.6 The petition set forth the

circumstances under which MC came into DHS custody: St. John’s near complete refusal to

5
St. John was again absent but her attorney attended.
6
The circuit court found that the following grounds, as alleged in DHS’s petition, had
been proved: (1) St. John had abandoned MC, see Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)
(Supp. 2023); (2) MC had been adjudicated dependent-neglected as a result of neglect that
could endanger MC’s life, see id. § 9-27-341(b)(3)(B)(vi); (3) St. John manifested an incapacity
or indifference to remedy subsequent factors that arose since the inception of the case, see
id. § 9-27-341(b)(3)(B)(vii)(a); and (4) St. John subjected MC to aggravated circumstances with
little likelihood of successful reunification despite services, see id. § 9-27-
341(b)(3)(B)(ix)(a)(3)(B)(i).

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engage in DHS services; her arrest on December 19, 2022, on multiple charges; her avoiding

DHS contact throughout the case; and her failure to exercise visitation with or provide any

sort of support to MC.

The petition further set forth that MC had no known legal father, that paternity had

not been judicially determined, that the putative-father registry had been searched with no

information being located regarding MC or St. John, and that no putative father’s rights had

attached so that no putative father had proved any significant contacts with MC. The

petition also set forth that St. John had stated she did not know the identity of MC’s father

or any putative father. On August 10, 2023, St. John answered the petition through counsel,

generally denying the allegations contained therein.

The termination hearing was held on November 2, 2023. Counsel was present on St.

John’s behalf only, and St. John was present via Zoom. St. John’s counsel requested a

continuance, arguing that St. John had written a letter to the court stating that she was going

to get out in January and planned to come to court and “get services.” Counsel contended

that St. John believed a man named James Thomas is MC’s father; Thomas had come to the

jail to visit St. John; Thomas would like a DNA test and services; and Thomas had repeatedly

called DHS and left voicemails, but he was never able to reach anyone. Counsel argued that

if the continuance were granted, then a DNA test could be performed, Thomas could receive

services, and there would be no need to terminate St. John’s rights since there would not be

an adoption. The attorney ad litem opposed the request, pointing out that the case had been

open for over a year; St. John had failed entirely to participate during the case; the alleged

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father had never appeared for court, including that morning; and there was no legal father.

The circuit court denied the continuance request, citing a lack of a good faith reason to grant

it.

Family service worker (FSW) Makaylah Blackson testified regarding the circumstances

under which MC came into DHS custody; St. John’s complete lack of participation in the

case; the services that had been offered to St. John and St. John’s failure to engage in those

services, including that St. John has had only one visitation with MC, which had occurred

on December 5, 2022; St. John’s lack of employment and income due to her incarceration;

St. John’s failure to provide any sort of resources for MC; and St. John’s ongoing legal issues.

Blackson confirmed that St. John did attempt to make contact once by writing a letter.

Blackson stated that MC was receiving services, living in a pre-adoptive home, and doing

well. Blackson explained that DHS was recommending termination because MC would be

in danger if returned to St. John due to her failure to complete services, lack of housing,

drug use, and ongoing incarceration.

Blackson testified that no putative father had contacted DHS, come forward,

requested services, or requested visitation. Blackson did not know if a potential father had

contacted the prior caseworker. Blackson confirmed that St. John had identified two men as

potential fathers in a letter sent a month or two earlier—James Thomas and Jamar Hampton—

and that both men had been referred by DHS for DNA testing. However, Blackson’s

attempts to contact each man had been unsuccessful. Blackson believed that DHS did seek

relatives to place MC with but could not provide any specifics.

5
Adoption specialist Shirley Allen testified that MC is highly adoptable, that his

current foster parent wishes to adopt him, and that to Allen’s knowledge, no relative had

expressed interest in adopting MC.

St. John testified next. She testified that during the life of the case, she was not

incarcerated except “maybe a month or so.” She testified that she and MC’s father—James

Thomas—made numerous attempts to contact DHS, but no one contacted them back. St.

John confirmed that her attorney had told James Thomas the “address and everything, and

the time” of the termination hearing, and she understood that the court denied the

continuance request in part due to Thomas’s absence at the termination hearing. St. John

testified that she was “working on being bonded out right now” and planned to go straight

into rehab once she got out in January. She went on to state that once out of rehab, she

would contact DHS to do whatever she needed to do to get MC back. She testified that

“miraculously,” just before the Zoom hearing, her other child’s father—whom she does not

believe to be MC’s father—called and said that he or someone on his side of the family was

willing to take MC, but she had not yet had an opportunity to relay that information to her

attorney. Among the exhibits entered into the record was MC’s birth certificate, wherein the

space for MC’s father’s name was blank.

The order terminating St. John’s parental rights was entered on January 31, 2024.

The circuit court found that DHS had proved all four grounds alleged in the termination

petition and that termination was in MC’s best interest, considering MC’s adoptability as

well as the potential harm to MC’s health and safety if she were to be returned to St. John’s

6
custody. The circuit court further found that DHS had made reasonable efforts and that the

testimony of Blackston and Allen was credible. The order set out that MC had no known

legal father, no known or unknown putative father whose rights have attached, and no

judicial determination of paternity. Accordingly, the order terminated “parental rights

between any known or unknown fathers and [MC].” This timely appeal followed.

II. Standard of Review

A motion for continuance shall be granted only upon a showing of good cause.

Grimwood v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 417, at 3, 586 S.W.3d 667, 669. The

appellant bears the burden of showing that the circuit court’s denial of a continuance was

an abuse of discretion, and to show an abuse of discretion, the appellant must show that she

was prejudiced by the denial. Id. at 3–4, 586 S.W.3d at 670. A circuit court abuses its

discretion when it acts improvidently and without due consideration. Id. To determine

whether an appellant was prejudiced from the denial of a continuance, appellate courts may

consider the appellant’s history of compliance during the case. See Wright v. Ark. Dep’t of

Hum. Servs., 2018 Ark. App. 503, at 9, 560 S.W.3d 827, 832. Lack of diligence by the moving

party is sufficient reason to deny a motion for continuance. Britt v. Ark. Dep’t of Hum. Servs.,

2022 Ark. App. 95, at 7–8, 640 S.W.3d 721, 726. Credibility determinations are within the

circuit court’s discretion, and appellate courts will not question those determinations on

appeal. Copp v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 491, at 13, 679 S.W.3d 380, 390.

III. Discussion

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On appeal, St. John does not challenge the circuit court’s determination that DHS

presented sufficient proof in support of the statutory grounds for termination, nor does she

argue that there was insufficient evidence regarding either statutory prong––adoptability and

potential harm––of the court’s best-interest finding. These issues are therefore waived, and

this court must affirm those findings. See, e.g., Benedict v. Ark. Dep’t of Hum. Servs., 96 Ark.

App. 395, 242 S.W.3d 305 (2006). Rather, St. John challenges the circuit court’s best-interest

determination as it relates to the denial of her motion to continue the termination hearing.

St. John argues that the circuit court erred in denying her motion because DHS failed

to “make diligent efforts to identify putative parents in a dependency-neglect proceeding,”

including “without limitation checking the Putative Father Registry,” as required by

Arkansas Code Annotated section § 9-27-325 (n)(1)(A)–(B) (Supp. 2023). St. John further

argues that the denial of her motion for continuance was in contravention of the circuit

court’s statutory obligation to “give preference to the least restrictive disposition consistent

with the best interests and welfare of the juvenile and the public.” Ark. Code Ann. § 9-27-

329(d) (Repl. 2020).7 She also argues that the circuit court erred in denying the motion to

continue because a relative or fictive kin must “be given preferential consideration for

placement . . . .” Ark. Code Ann. § 9-27-355(b)(1)(E)(i) (Supp. 2023).

St. John contends that she was prejudiced by the denial of her motion because if it

had been granted, a legal father could have been established and a less restrictive disposition

7
This is a dispositional alternative that is applicable at the adjudication stage—not
termination.

8
option would have been available short of termination, possibly resulting in an entirely

different outcome for her. St. John requests that this court reverse the denial of the

continuance, the subsequent proceedings for termination be nullified, and the case be

remanded for further proceedings.

St. John relies on Hudgens v. Arkansas Department of Human Services, 2010 Ark. App.

649, arguing that it stands for the proposition that a failure to comply with mandatory

provisions of the law amounts to a denial of justice. In Hudgens, the appellant argued that

the circuit court erred when it denied a parent’s request for a continuance of an adjudication

hearing that was being held prior to the expiration of the parent’s time for filing an answer

to DHS’s complaint. This court reversed and held that because DHS did not proceed under

the statute authorizing emergency orders, our rules of civil procedure required the circuit

court to wait to conduct the hearing after the time for filing an answer had expired. Id. at 3.

Although this court acknowledged that the circuit court’s concern for the child was

understandable, we held it was still erroneous to hear the petition at that time. Id.

St. John’s arguments are unpersuasive. The circuit court did not abuse its discretion

in denying St. John’s motion for continuance. St. John had the burden to demonstrate good

cause for the continuance she sought, and she failed to do so. Moreover, St. John cannot

demonstrate prejudice from the circuit court’s denial of her motion. She waited until the

day of the termination hearing—more than a year into the case—to request a continuance on

the basis that Thomas could be MC’s father. That alone demonstrates a lack of diligence

9
sufficient to support the denial. See Brown v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 455,

at 4.

The denial of her request for a continuance did not prejudice St. John. MC had been

in DHS custody for over a year, St. John had contact with MC only once during the case,

and she had not otherwise visited or provided support to MC. St. John did not provide

adequate supervision of MC when in her custody and has a history of past and current drug

use. St. John had been incarcerated during most of the case and was incarcerated on the date

of the termination hearing. As such, she was and continues to be unable to adequately care,

house, and supervise MC. St. John provided no testimony as to what efforts she made to

achieve reunification while she was not incarcerated. She certainly did not contact DHS or

visit MC. St. John had near complete noncompliance in this case. St. John’s past behavior

indicated that even if the court allowed a continuance, she was not likely to follow through

with any of the steps necessary for reunification, particularly considering her history of

noncompliance and nonparticipation throughout the case, near-continual incarceration,

failure to complete services, and lack of housing or employment. See Wright v. Ark. Dep’t of

Hum. Servs., 2018 Ark. App. 503, at 9, 560 S.W.3d 827, 832.

The FSW’s credited testimony was that no unknown or putative parent had contact

with or provided support to MC during the pendency of the case. St. John informed DHS

at the outset of the case that she did not know the identity of MC’s father. While St. John’s

counsel relayed that the putative father had been trying to get into contact with DHS—to no

avail—counsel’s statements and arguments are not evidence. See, e.g., Barnes v. Everett, 351

10
Ark. 479, 490, 95 S.W.3d 740, 747 (2003). As to St. John’s testimony that she and the

putative father had been trying to contact DHS with no response, credibility determinations

are for the circuit court. See Copp, supra. The information regarding a potential father was

provided after MC had been in DHS custody for most of a year; nevertheless, DHS attempted

to contact the individuals that St. John identified as putative fathers with no success,

according to the credited testimony of Blackson. DHS did check the putative-father registry

as required by Arkansas Code Annotated section 9-27-325, and no information regarding

MC or St. John was found. The putative father failed to appear at the termination hearing,

despite having been informed the previous day as to the hearing’s time and location,

according to St. John. St. John’s arguments regarding a putative father are based on

speculation about the identity of MC’s father, the ability of this alleged father to prove

paternity, and whether this alleged father or any of his relatives were appropriate to take

custody of MC, as required by Arkansas Code Annotated section 9-27-329. Moreover,

neither St. John nor her counsel may assert error on behalf of any putative father, and

certainly there is no appeal or attempt to intervene by Thomas or any other person. Kidd v.

Ark. Dep’t of Hum. Servs., 2016 Ark. App. 450, at 1–2.

Perhaps most importantly, the statutes relied on by St. John with respect to the

preference for a relative or fictive kin and the least restrictive disposition requires that those

preferences still be measured against the best interest of the child.8 Here, no relative or fictive

8
Again, Arkansas Code Annotated section 9-27-329 applies to the disposition after an
adjudication hearing subsequent to a finding of dependency-neglect.

11
kin contacted DHS or appeared at any of the proceedings, including the termination

proceedings. There was no evidence presented that any relative or fictive kin had had any

contact or visitation with MC, let alone a preexisting relationship. See Blankenship v. Ark.

Dep’t of Hum. Servs., 2023 Ark. App. 63, at 19, 661 S.W.3d 227, 228 (affirming circuit court’s

finding that termination was in the child’s best interest when the child had never been in

the relative’s custody and there was no demonstration of a bond with the relative). MC is

doing well in his foster-care placement, and his foster parent wishes to adopt him. Neither

DHS nor the circuit court failed to comply with its statutory obligations. Thus, Hudgens,

supra, is inapplicable herein.

Parental rights will not be enforced to the detriment or destruction of the health and

well-being of the child. Helms v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 158, at 18, 662

S.W.3d 285, 291. The intent of the termination statute is “to provide permanency in a

juvenile’s life . . . in a reasonable period of time as viewed from the juvenile’s perspective.”

Ark. Code Ann. § 9-27-341(a)(3). While the continuance may be in the best interest of St.

John, she has failed entirely to demonstrate how the continuance would have been in MC’s

best interest. Accordingly, we hold that the circuit court’s decision to deny St. John’s request

for a continuance was not an abuse of discretion. Thus, we affirm the denial of the request

to continue and affirm the termination order.

Affirmed.

HARRISON, C.J., and THYER, J agree.

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

12
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.

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