Bane v. Arkansas Department of Human Services
2016 Ark. App. 617
| Ark. Ct. App. | 2016Background
- Parents Latisha and Joseph Bane lived with three children; Latisha suffered a 2011 stroke and Joseph was appointed her guardian and primary caretaker.
- In March 2015 DHS removed the children after allegations that Joseph supplied alcohol to the then-12-year-old daughter and witnessed her sexual assault without reporting it; DHS obtained ex parte emergency custody.
- Parents stipulated to dependency-neglect; DHS provided services (parenting classes, counseling, drug screens, homemaker services, transportation, visitation), but the parents minimally complied and visits were infrequent.
- Home visits repeatedly found the parents’ trailer unsafe, filthy, and structurally unsound; Latisha was found incapable of caring for the children due to her disability and Joseph had substance issues and criminal charges.
- After ~14 months out of the home, DHS petitioned to terminate parental rights; the trial court found four statutory grounds and that termination was in the children’s best interest and entered termination orders for both parents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service of process on Latisha | Service was defective because service was made on Joseph and not on Latisha’s appointed agent for guardianship service | DHS/State: service was adequate and Latisha appeared without objection | Waived: Latisha appeared at hearings with counsel and did not object; argument forfeited |
| Need for guardian ad litem/competency inquiry for Latisha | Latisha lacked capacity and her guardian (Joseph) had conflicts; court should have inquired about appointing a guardian ad litem | DHS/State: Latisha had counsel and no request for GAL below | Not preserved: no GAL request or objection below, so argument cannot be raised on appeal |
| Sufficiency of evidence / statutory grounds for termination | Latisha: grounds unsupported; termination hinged on Joseph’s conduct and Latisha’s dependence on him; DHS failed to show risk if given opportunity | DHS: proved failure-to-remedy, abandonment/other factors; children adoptable and parents did not remedy conditions despite services | Affirmed: clear-and-convincing evidence supported termination under failure-to-remedy and other factors; termination in children’s best interest |
| No-merit appeal & counsel withdrawal (Joseph) | N/A (no-merit brief filed by counsel) | Counsel: no arguable grounds; client informed and given chance to file pro se points | Granted: appellate court agreed appeal was without merit and allowed counsel to withdraw |
Key Cases Cited
- Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (standard of review for termination of parental rights)
- Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (definition of clear and convincing proof)
- J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (appellate review—clearly erroneous standard)
- Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (definition of "clearly erroneous")
- Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (only one statutory ground required to terminate)
- Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. App. 90, 455 S.W.3d 347 (parental rights not enforced to detriment of child’s wellbeing)
- Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (procedural requirements for no-merit appeals)
- Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851 (statutory burden and proof requirements in termination cases)
- Patel v. Patel, 2015 Ark. App. 726, 479 S.W.3d 580 (appellate preservation rules)