Brumley v. Arkansas Department of Human Services
2015 Ark. App. LEXIS 121
| Ark. Ct. App. | 2015Background
- Child G.B. was removed October 2012 after an incident at his birthday; mother arrested; appellant (Brumley) had been incarcerated since 2007 and remained imprisoned during the case.
- DHS filed to terminate Brumley’s parental rights; circuit court terminated rights on December 20, 2013; appeal followed.
- Brumley had little to no ongoing relationship with G.B.: had not seen him since 2007, and G.B. did not recognize him as father.
- Brumley participated in prison programs (parenting, sobriety, life skills) but provided no contemporaneous proof of completion or post-release housing/employment plans; release date was uncertain and at least nine months away at time of hearing.
- DHS relied primarily on the “subsequent factors” ground (failure to remedy issues that arose after the original petition) and also pled imprisonment-as-substantial-period ground; the court’s 12‑month failure-to-remedy finding as to Brumley was erroneous because removal related to the mother, not Brumley.
Issues
| Issue | Brumley’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether termination was supported under the 12‑month failure‑to‑remedy ground (§ 9‑27‑341) | Brumley: cannot be held responsible because he did not cause removal and the child was out of mother’s custody, not his | DHS: focused on other grounds; did not defend this point on appeal | Court: Reversed on this ground — statutory provision inapplicable to Brumley (clear error) |
| Whether "other factors" arising after the petition supported termination (parent failed to remedy subsequent issues) | Brumley: incarceration existed before petition so no subsequent factor; he made measurable progress in prison programs and sought more time | DHS: Brumley failed to comply with case plan due to incarceration; lack of relationship and uncertain release meant permanency required termination | Court: Affirmed — found subsequent‑factor ground satisfied because Brumley had not remedied conditions, had no close relationship with G.B., and could not provide a timely placement |
| Whether imprisonment for a substantial portion of the child’s life justified termination (§ 9‑27‑341(b)(3)(B)(viii)) | Brumley: (argued in dissent) record does not establish sentence length and release was imminent; this ground was stricken in trial court order | DHS: pled this ground in its petition and pointed to long incarceration and resulting lack of relationship | Court (majority and concurrence): Affirmed alternatively on this ground in de novo review — incarceration constituted a substantial portion of child’s life and supported termination |
| Whether termination was in the child’s best interest (including potential harm if returned) | Brumley: record lacks proof of potential harm; proposed allowances for post‑termination contact could address concerns | DHS: potential harm is assessed forward‑looking and uncertainty/continued delay in permanency is harmful; caregivers sought adoption | Court: Affirmed — termination was in G.B.’s best interest; adoptability plus potential harm from continued uncertainty supported decision |
Key Cases Cited
- Friend v. Arkansas Department of Human Services, 344 S.W.3d 670 (Ark. Ct. App.) (incarceration does not excuse parental duties; evaluate use of available resources to maintain relationship)
- Crawford v. Arkansas Department of Human Services, 951 S.W.2d 310 (Ark.) (incarceration is not conclusive on termination issue)
- Cranford v. Arkansas Department of Human Services, 378 S.W.3d 851 (Ark. Ct. App.) (post‑termination contact can be relevant where parent maintained relationship and was close to release)
- Fenstermacher v. Arkansas Department of Human Services, 426 S.W.3d 483 (Ark. Ct. App.) (appellate court may affirm on grounds alleged in petition though not relied on by trial court)
- Morrison v. Arkansas Department of Human Services, 429 S.W.3d 329 (Ark. Ct. App.) (standards and heavy burden applicable in termination proceedings)