Burnett v. Arkansas Department of Human Services
385 S.W.3d 866
Ark. Ct. App.2011Background
- DHS became involved on July 5, 2009 after Burnett’s domestic-battery arrest; D.H.1 and D.H.2 witnessed Parker kicking a police-car window and were placed with Burnett’s maternal great-grandmother.
- Emergency ex parte order placed the children in DHS custody on July 8, 2009; July 13, 2009 probable-cause hearing found the children dependent-neglected.
- Harris was incarcerated for theft by receiving and child endangerment at the time; he was later released and faced additional charges in 2010, including rape and burglary.
- DHS sought termination July 16, 2010; a 60-day trial placement followed in July 2010 with conditions for Burnett (rehab, no alcohol, Breathalyzer, etc.) and supervision of the children.
- Trial placement was initially dismissed and custody returned to Burnett in September 2010; Burnett relapsed, left the state with her boyfriend, and DHS regained custody after testing positive for alcohol in October 2010.
- Amended petition for termination was filed November 29, 2010; at the January 14, 2011 termination hearing, DCFS testified the children were adoptable and could be placed together; the trial court terminated in February 2011, finding grounds under §9-27-341 and a high likelihood of adoption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Burnett’s ADA claim was preserved for review | Burnett argues DHS violated ADA by not providing accommodations. | DHS did not address ADA; issue not preserved. | ADA issue not preserved; affirmed as not reviewable. |
| Whether the likelihood of adoptability was proven for best interests | Burnett and Harris claim adoptability evidence was insufficient. | DCFS provided evidence adoptability; trial court considered it in best interest. | Adoptability considered as a factor; evidence supports likely adoption; not clearly erroneous. |
| Whether statutory grounds support termination under §9-27-341(b)(3)(B) | Burnett contends she remedied conditions; Harris contends lack of evidence. | DHS showed ongoing drug/alcohol abuse and failure to remedy conditions. | Clear and convincing evidence supports termination under multiple grounds. |
| Whether the trial court properly weighed best interests and remedy progress | Progress toward the case plan should defeat termination if substantial. | Progress does not defeat termination when conditions remain unremedied. | Progress insufficient; termination affirmed as in the children's best interests. |
| Whether Burnett’s partial compliance forecloses termination | She completed a significant portion and complied with portions of the plan. | Noncompliance and relapses override partial compliance. | Partial compliance not determinative; continued abuse and noncompliance support termination. |
Key Cases Cited
- Renfro v. Ark. Dep’t of Human Servs., 385 S.W.3d 285 (Ark. App. 2011) (adoptability is one factor among best-interest considerations)
- Dean v. Ark. Dep’t of Human Servs., 299 S.W.3d 587 (Ark. App. 2009) (court cautions DHS on proving adoptability; requires evidence)
- Camarillo-Cox v. Ark Dep’t of Human Servs., 201 S.W.3d 391 (Ark. 2005) (progress toward remedy does not bar termination; focus on best interest)
- Meriweather v. Ark Dep’t of Human Servs., 255 S.W.3d 505 (Ark. App. 2007) (clear and convincing standard; deference to trial court on credibility)
- Trout v. Ark Dep’t of Human Servs., 197 S.W.3d 486 (Ark. 2004) (heavy burden on party seeking termination; must be in child’s best interest)