Anthony v. Ark. Dep't of Human Servs.
2013 Ark. App. 556
Ark. Ct. App.2013Background
- Infant T.W.1 born Feb. 13, 2012 with serious medical needs; mother Tassie Anthony tested positive for drugs and refused required CPR training, prompting DHS to take custody.
- Probable-cause hearings led to adjudications of both children as dependent-neglected in April 2012; the court found Anthony had abandoned T.W.1 and was unfit due to drug use.
- DHS filed to terminate Anthony’s parental rights in June 2012; Anthony absconded with T.W.2 after the first hearing and did not relinquish him to DHS until August 2012.
- After August 2012, Anthony’s contact with DHS was sporadic: missed visits, multiple arrests, no steady employment, residence with her mother (also a drug user), and only belated entry into rehab.
- Juvenile court terminated parental rights in January 2013, finding clear-and-convincing evidence that termination was in the children’s best interest and that statutory grounds (abandonment and the “other factors” ground) were met.
Issues
| Issue | Plaintiff's Argument (Anthony) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether DHS proved the statutory “other factors” ground (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)) by clear and convincing evidence | Anthony contended the evidence post-dating the petition was stale and she lacked notice; she argued she had re-engaged with the case after August | DHS argued that post-petition events (absconding, instability, continued drug use, jail time, failure to use services) showed return was contrary to children’s health, safety, welfare and parent was indifferent/incapacitated | Court affirmed: evidence supported the “other factors” ground by clear and convincing evidence (termination not clearly erroneous) |
| Whether abandonment ground was proved (Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)) | Anthony disputed DHS’s proof of abandonment | DHS relied on concealment of T.W.2, failure to appear at hearings, and earlier positive drug tests | Court noted only one ground needed; it did not reach abandonment because other-factors ground sufficed |
| Whether termination was in children’s best interest | Anthony did not contest the best-interest finding | DHS presented evidence of instability, drug use, inability to care for children, and inconsistent contact | Court’s best-interest finding was left intact (Anthony did not challenge) |
| Whether introduction of post-petition conduct without amendment deprived Anthony of notice | Anthony argued petition was stale and she lacked notice of issues raised at hearing | DHS and court relied on Anthony’s failure to object at trial and doctrine of implied consent to try issues not in pleadings | Court held Anthony impliedly consented by failing to object; appellate review barred for issues not raised below |
Key Cases Cited
- Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (standard of review for termination appeals)
- M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (clear-and-convincing burden and appellate review standard)
- L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489 (two-step termination analysis: statutory ground and best interest)
- Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (only one statutory ground required)
- Hoffman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 856, 380 S.W.3d 454 (appellate scope when best-interest findings are uncontested)
- Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (implied consent to trial on issues not pleaded)
- Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351 (failure to raise issue below precludes appellate review)