Clements v. Ark. Dep't of Human Servs.
2013 Ark. App. 493
Ark. Ct. App.2013Background
- DHS took emergency custody of two children in Aug. 2011 after parents tested positive for methamphetamine; C.C. (child of appellant Kim Clements) was adjudicated dependent-neglected.
- Court-ordered reunification services included drug/alcohol assessment, random drug screens, counseling, parenting classes, stable housing/employment, and supervised visitation conditioned on clean tests.
- Clements had multiple positive drug tests (including a Dec. 2011 hair-follicle test), intermittent contact with DHS, periods of noncompliance, and jail time; parents lost regular visitation.
- DHS filed a termination petition Sept. 5, 2012; termination hearing held Dec. 14, 2012. Caseworker testified to appellant’s noncompliance and positive tests; appellant disputed some facts and claimed limited engagement with services.
- Trial court’s termination order (Jan. 14, 2013) incorporated prior filings/testimony and found appellant failed to remedy conditions and had shown incapacity/indifference to rehabilitate; court terminated parental rights.
Issues
| Issue | Appellant's Argument | DHS/Respondent's Argument | Held |
|---|---|---|---|
| Whether termination relied on unpled statutory grounds | Clements: petition did not allege C.C. under the 12-month adjudication ground and didn’t plead failure-to-support/contact ground; thus termination on those grounds violates due process | DHS: petition did allege “other factors” and the court’s handwritten notations show it relied on the post-petition factors ground (§ 341(b)(3)(B)(vii)) | Court: No error — court’s markings and petition support reliance on the “other factors” ground; appellant had notice |
| Whether evidence was sufficient for “other factors” ground (post-petition issues) | Clements: “Other factors” must be new circumstances post-petition; his housing/employment were unchanged from removal so statute not satisfied | DHS: Post-removal refusal/noncompliance with orders and services are proper “other factors;” failure to take services shows incapacity/indifference | Court: Sufficient evidence — appellant’s post-removal noncompliance and failure to utilize services satisfied the statutory standard |
| Whether trial court improperly incorporated prior hearing testimony without transcripts | Clements: Court incorporated earlier testimony without transcript, so record unclear what was considered; cited repeal of cited statute | DHS: Reliance on existing authority allowing incorporation and judicial notice of prior proceedings | Court: Adopted reasoning in Kelso; incorporation was permissible under controlling precedent and not reversible error |
| Whether termination was in child’s best interest (adoptability and harm) | Clements: Implied challenge via factual disputes about improvement and engagement | DHS: Children were highly adoptable; returning them posed risk given parents’ ongoing drug issues and noncompliance | Court: Termination in best interest — children adoptable and return contrary to health/safety |
Key Cases Cited
- J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997) (standard for appellate review and when a finding is clearly erroneous)
- Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005) (deference to trial court credibility determinations)
- Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007) (termination is extreme remedy but may be necessary to protect child’s welfare)
- Porter v. Ark. Dep’t of Human Servs., 378 S.W.3d 246 (Ark. Ct. App. 2010) (use of subsequent, post-petition factors can support termination)
- Allen v. Ark. Dep’t of Human Servs., 384 S.W.3d 7 (Ark. Ct. App. 2011) (parent’s failure to comply with orders/services can constitute sufficient "other factors")
- K.C. v. Ark. Dep’t of Human Servs., 374 S.W.3d 884 (Ark. Ct. App. 2010) (parents must have notice of grounds; cannot be terminated on unpled provision without notice)