Criswell v. Arkansas Department of Human Services
435 S.W.3d 26
Ark. Ct. App.2014Background
- E.C. (b. 8/29/08) was removed March 16, 2012; DHS custody over twelve months at time of termination hearing.
- Father (Paul Criswell) was incarcerated when child was removed, released Aug 2012, but later returned to federal prison and remained incarcerated at the July 23, 2013 termination hearing; earliest possible release argued by father was April 2014 (best case).
- Circuit court ordered services (psych eval, counseling, parenting, drug screens); father completed some services but then received a long federal sentence that would occupy a substantial portion of the child’s life.
- DHS recommended termination based on prolonged absence/incarceration, concerns about anger/domestic violence, and lack of substantial measurable progress toward reunification; adoption specialist testified child was adoptable.
- Trial court found clear-and-convincing evidence of statutory grounds (including aggravated circumstances related to incarceration), that child was adoptable, and that termination was in the child’s best interest; terminated father’s parental rights (order filed Sept. 5, 2013).
Issues
| Issue | Plaintiff's Argument (Criswell) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Sufficiency of evidence to terminate based on incarceration/aggravating circumstances | Termination improper; record inaccuracies and counsel didn’t review record with him | Father’s prolonged incarceration would keep child in foster care for substantial portion of childhood; constitutes aggravating circumstances | Court held evidence supported termination by clear and convincing evidence (aggravating circumstances due to incarceration) |
| Best interest / adoptability | Father argued he would be released and could reunify; relative placement available | DHS: child is adoptable and permanency should not be delayed awaiting father’s release | Court found child adoptable and termination was in child’s best interest |
| Consideration of relative placement | Father argued relatives (cousin) could care for child | DHS raised concerns about relative’s limited relationship and ability/willingness to protect permanency; court noted termination doesn’t preclude relative consideration but refused to delay termination | Court denied placement preference at hearing but allowed agency to consider appropriate relatives post-termination |
| Appellate counsel’s withdrawal / no-merit procedure | Father contended counsel failed to consult and omitted meritorious issues; sought new counsel | Appellate counsel filed no-merit brief per Linker-Flores after record review; argued no nonfrivolous issues exist | Court found counsel complied with Linker-Flores, granted motion to withdraw, and affirmed termination as frivolous to appeal |
Key Cases Cited
- Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (Ark. 2004) (procedure and standards for appointed counsel to petition to withdraw in TPR appeals)
- Lewis v. Arkansas Department of Human Services, 364 Ark. 243, 217 S.W.3d 788 (Ark. 2005) (appellate scope of review for no-merit withdrawal in TPR appeals)
- J.T. v. Arkansas Department of Human Services, 329 Ark. 243, 947 S.W.2d 761 (Ark. 1997) (standard for reviewing clear-and-convincing findings and clearly erroneous rule)
- Camarillo-Cox v. Arkansas Department of Human Services, 360 Ark. 340, 201 S.W.3d 391 (Ark. 2005) (deference to trial court credibility findings in TPR cases)
- Meriweather v. Arkansas Department of Health & Human Services, 98 Ark. App. 328, 255 S.W.3d 505 (Ark. Ct. App. 2007) (parental-rights termination as an extreme remedy balanced against child’s welfare)
- Gossett v. Arkansas Department of Human Services, 2010 Ark. App. 240, 374 S.W.3d 205 (Ark. Ct. App. 2010) (only one statutory ground is required to support TPR)
- Reed v. Arkansas Department of Human Services, 2012 Ark. App. 369, 417 S.W.3d 736 (Ark. Ct. App. 2012) (adoptability evidence supports best-interest finding)
- Hewitt v. State, 317 Ark. 362, 877 S.W.2d 926 (Ark. 1994) (failure to articulate specific grounds for an objection precludes appellate consideration)