Brinkley v. Arkansas Department of Human Services
2017 Ark. App. 625
| Ark. Ct. App. | 2017Background
- DHS removed three children (ages 9, 8, 6) after mother Dorletha left them unsupervised; father Timothy was incarcerated throughout the case. DHS filed for emergency custody May 11, 2015.
- Court adjudicated the children dependent-neglected; reunification was the initial goal but later DHS sought termination after a 15-month review. Termination petition filed Sept. 14, 2016.
- Dorletha had long-standing alcohol problems, multiple convictions, and was incarcerated repeatedly (17 incarcerations during the case); she had some case-plan compliance but did not maintain sobriety or resolve criminal issues. DHS offered services and rehabilitation attempts.
- Timothy testified he received only the initial petition while incarcerated, never received the case plan or interim notices, had no contact with DHS for ~15 months, and was not offered services; counsel was appointed for him shortly before the termination hearing. DHS caseworker testified DHS had no contact with Timothy until service of the termination petition.
- Trial court terminated both parents’ rights: it found statutory “other factors” (Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a)) supported termination as to Dorletha, and found Timothy had abandoned the children under the statutory definition. Mother’s termination affirmed; father’s termination reversed and remanded.
Issues
| Issue | Brinkley (Dorletha/Timothy) Argument | DHS / Trial Court Argument | Held |
|---|---|---|---|
| Whether statutory grounds supported termination of Dorletha’s rights | Dorletha: DHS failed to prove conditions causing removal persisted; DHS didn’t offer appropriate services for her mental-health issues | DHS: Post-removal “other factors” (alcohol abuse, repeated incarcerations) persisted despite services and made return contrary to children’s welfare | Affirmed: "other factors" ground proved by clear and convincing evidence; termination appropriate |
| Whether statutory ground (abandonment) proved as to Timothy | Timothy: He was incarcerated, not served with case plan or orders, received no DHS services or notice for 15+ months; therefore no abandonment | DHS/Trial court: Timothy had no contact or visits and made no request for services or counsel during the case; this evidenced abandonment | Reversed: Court clearly erred—abandonment not proved by clear and convincing evidence given lack of DHS contact and no case-plan notice to Timothy |
| Whether trial court erred in permitting DHS to rely on unpled "imprisonment" ground | Timothy: DHS did not plead the imprisonment ground; he argued termination should be based only on pled grounds | DHS: Sought to conform pleadings to evidence at trial to rely on imprisonment ground | Trial court denied DHS motion; appellate review limited to abandonment ground; appellate court did not consider imprisonment ground |
| Whether Timothy’s late appointment of counsel or lack of service on pleadings entitles him to reversal | Timothy: Late appointment and lack of service deprived him of participation and due process | DHS: Focused on lack of contact/visits as evidence of abandonment | Court did not reach these claims on merits after finding abandonment not proved; reversal on sufficiency ground means those claims need not be addressed further |
Key Cases Cited
- Mitchell v. Arkansas Department of Human Services, 430 S.W.3d 851 (Ark. Ct. App. 2013) (standard of de novo review in TPR cases)
- Anderson v. Douglas, 839 S.W.2d 196 (Ark. 1992) (definition of clear-and-convincing evidence)
- J.T. v. Arkansas Department of Human Services, 947 S.W.2d 761 (Ark. 1997) (appellate standard for reviewing TPR factual findings)
- Yarborough v. Arkansas Department of Human Services, 240 S.W.3d 626 (Ark. Ct. App. 2006) (clarifies clearly erroneous standard in TPR appeals)
- M.T. v. Arkansas Department of Human Services, 952 S.W.2d 177 (Ark. Ct. App. 1997) (statutory requirement of at least one ground plus best-interest finding)
- Friend v. Arkansas Department of Human Services, 344 S.W.3d 670 (Ark. Ct. App. 2009) (incarceration does not conclusively establish abandonment; examine use of available resources to maintain relationship)
- Crawford v. Arkansas Department of Human Services, 951 S.W.2d 310 (Ark. 1997) (parental imprisonment not conclusive in TPR determinations)
- Malone v. Arkansas Department of Human Services, 30 S.W.3d 758 (Ark. Ct. App. 2000) (parental obligations continue during incarceration)
- Zgleszewski v. Zgleszewski, 542 S.W.2d 765 (Ark. 1976) (abandonment characterized as desertion or relinquishing all connection)
- Bradbury v. Arkansas Department of Human Services, 424 S.W.3d 896 (Ark. Ct. App. 2012) (abandonment/other-factors analysis where incarcerated parent failed to comply with case plan and services were offered)
- Wafford v. Arkansas Department of Human Services, 495 S.W.3d 96 (Ark. Ct. App. 2016) (only one statutory ground needed to terminate parental rights)