548 S.W.3d 231
Ark. Ct. App.2018Background
- DHS opened a protective-services case after findings of environmental neglect and later removed eight children from parents Jonathan Buck and Penelope Thomas-Buck due to an unsafe, unsanitary home and presence of a level-3 sex offender.
- DHS alleged Buck was the legal father of MT('09) and JT('14) and putative father of MT('07) and JT('08); paternity testing was ordered but not pursued to completion in the record.
- An ex parte emergency custody order expressly found custody removed from Thomas-Buck and appointed counsel for her as indigent; the order made no corresponding appointment or indigency finding as to Buck.
- Buck attended hearings (probable-cause, adjudication, reviews) without appointed counsel; counsel was appointed only when the agency changed the permanency goal to termination.
- The trial court adjudicated the children dependent-neglected and later terminated Buck’s parental rights to MT('07), JT('08), MT('09), and JT('14). Buck appealed, arguing denial of his statutory right to counsel and insufficient proof of parentage for two children.
Issues
| Issue | Buck's Argument | DHS's Argument | Held |
|---|---|---|---|
| Statutory right to appointed counsel at outset | Buck: statute entitled him to appointed counsel once custody removed; he requested counsel but none was appointed until termination stage | DHS: error occurred but was harmless because Buck had counsel at the termination hearing and evidence was presented then | Reversed: court held Buck was entitled to appointed counsel at the outset and the failure to appoint was not harmless; reversal and remand required |
| Harmless-error analysis | Buck: absence of counsel at earlier stages prejudiced his ability to challenge adjudication, participate in staffings, get services, and ensure paternity testing | DHS: all damaging evidence was presented at termination with counsel, so earlier absence was harmless | Court: distinguished Briscoe and held error was not harmless because counsel would have advocated during case staffings, monitored services, and could have contested adjudication and unclear orders |
| Effect of lack of counsel on case plan implementation | Buck: without counsel he lacked advocacy to obtain services (anger management, substance abuse), to monitor case-plan compliance, and to press for DNA testing | DHS: argued no prejudice shown; later proceedings cured defects | Court: agreed Buck lacked these protections and that counsel might have made a determinative difference; this contributed to reversal |
| Sufficiency of evidence re: MT('07) and JT('08) (putative children) | Buck: termination requires proof a parent acted/failed to act; because paternity was never established, statutory grounds were not proven as to these children | DHS: argued any defect was harmless because termination of legal children could provide automatic grounds or Buck failed to show prejudice | Court: did not decide on merits because reversal of terminations for MT('09) and JT('14) (legal children) made DHS’s automatic-ground argument moot; remand likely to include paternity testing and further proceedings |
Key Cases Cited
- Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (1981) (due-process right to appointed counsel in dependency proceedings is not absolute; requires case-by-case fundamental-fairness analysis)
- Briscoe v. Arkansas Department of Human Services, 323 Ark. 4 (1996) (previous Arkansas decision finding harmless error where counsel was provided by adjudication and circumstances were limited)