Bolden v. Ark. Dep't of Human Servs.
547 S.W.3d 129
Ark. Ct. App.2018Background
- DHS removed N.B. (b. 2015) and L.B. (b. 2014) in Dec. 2015; initial adjudication found dependency-neglect based on mother's drug use and failure to protect; putative-parent rights for Bolden did not attach initially.
- Bolden was incarcerated at case outset, released Feb 2016, then reincarcerated Jan 2017; DHS set a reunification plan requiring drug screens, parenting classes, stable housing/employment, and weekly contact.
- Over the case period Bolden had sporadic employment and housing, multiple positive drug tests, attended only 15 of 41 visits (last visit Dec. 30, 2016), did not pay child-support arrearage, and violated probation by leaving the state.
- DHS filed to terminate parental rights Feb. 2017 arguing several statutory grounds (including subsequent-factors and failure-to-maintain meaningful contact) and that termination was in the children’s best interest; a termination hearing was held Apr. 24, 2017.
- The circuit court found DHS proved the subsequent-factors and failure-to-maintain-meaningful-contact grounds and that termination was in the children’s best interest (children adoptable; need for permanence); it terminated Bolden’s parental rights May 9, 2017.
Issues
| Issue | Bolden's Argument | DHS/Court's Argument | Held |
|---|---|---|---|
| Whether DHS proved a statutory ground for termination (subsequent factors) | Bolden argued imprisonment explains noncompliance and he used available resources; he completed some services and had a post-prison plan | DHS pointed to reincarceration plus noncompliance while not incarcerated: positive drug tests, missed visits, unstable housing/employment, unpaid support, probation violation | Court: DHS proved subsequent-factors by clear and convincing evidence; affirmed |
| Whether termination was in the children’s best interest (potential-harm prong) | Bolden argued he had a remedial plan (marriage, housing, employment, pay arrears) and would be released soon | DHS/court emphasized instability, drug use, lack of housing/employment, inconsistent visitation, long time in foster care, and need for permanence | Court: Termination was in children’s best interest; affirmed |
| Whether incarceration alone bars termination (fairness/mitigating factor) | Bolden relied on authority that imprisonment is not necessarily conclusive and that jail imposes unusual impediment | DHS/court argued imprisonment does not toll parental obligations; inquiry is whether parent used available resources and showed remedial efforts while incarcerated | Court: Rejected reliance on incarceration as dispositive; termination not based solely on incarceration; affirmed |
| Whether termination denied Bolden fundamental fairness (procedural notice/staffings) | Bolden asserted lack of court orders documenting noncompliance and absence of staffings/CASA activity denied notice and opportunity to remedy | DHS/court noted procedural challenge was not raised below and therefore not preserved for appeal | Court: Did not reach merits; issue not preserved and therefore not considered |
Key Cases Cited
- Krecker v. Ark. Dep't of Human Servs., 530 S.W.3d 393 (Ark. Ct. App.) (clear-and-convincing standard and appellate review in TPR cases)
- Conway v. Ark. Dep't of Human Servs., 453 S.W.3d 703 (Ark. Ct. App.) (incarceration and lack of viable post-release plan can support subsequent-factors ground)
- Cotton v. Ark. Dep't of Human Servs., 422 S.W.3d 130 (Ark. Ct. App.) (noncompliance with case plan and unstable housing/employment supports termination under subsequent-factors)
- Henderson v. Ark. Dep't of Human Servs., 377 S.W.3d 362 (Ark. Ct. App.) (ongoing drug use, criminal activity, and lack of stability support subsequent-factors termination)
- Crawford v. Ark. Dep't of Human Servs., 951 S.W.2d 310 (Ark.) (imprisonment is not conclusive for termination determinations)
- Malone v. Ark. Dep't of Human Servs., 30 S.W.3d 758 (Ark. Ct. App.) (incarceration does not toll obligations; courts examine whether incarcerated parent used available resources to maintain relationship)
- Posey v. Ark. Dep't of Health & Human Servs., 262 S.W.3d 159 (Ark.) (deference to trial court credibility determinations in TPR appeals)
- McElroy v. Ark. Dep't of Human Servs., 432 S.W.3d 109 (Ark. Ct. App.) (only one statutory ground is necessary to support termination)
- Bunch v. Ark. Dep't of Human Servs., 523 S.W.3d 913 (Ark. Ct. App.) (distinguishing cases where children remained continuously placed with relatives, reducing urgency for termination)
- Cranford v. Ark. Dep't of Human Servs., 378 S.W.3d 851 (Ark. Ct. App.) (same as Bunch; permanence analysis when children remain with kin)