Dalana Phillips v. Arkansas Department of Human Services and Minor Children
585 S.W.3d 703
Ark. Ct. App.2019Background
- May 2017: Police found a five-year-old home alone; father (Aaron) arrested for drug-related offenses; DHS placed the three children (R.M., S.M., C.P.) in custody on a 72-hour hold.
- May 25, 2017: Mother Dalana tested positive for amphetamines, methamphetamine, and oxycodone; children adjudicated dependent-neglected; reunification ordered but services required.
- Case history: Dalana had repeated incarcerations, parole violations, relapses, unstable housing/employment, mixed compliance with treatment and visitation over ~20 months.
- Children were placed with paternal grandparents but remained in DHS custody (temporary placement); grandparents were not clearly committed to a permanent custodial arrangement.
- DHS filed to terminate parental rights (TPR) Nov. 2018; TPR hearing Jan. 3, 2019; circuit court terminated Dalana’s rights Jan. 14, 2019; Dalana appealed limited issues (best interest/ICWA expert testimony).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TPR was in children’s best interest given placement with grandparents | Dalana: TPR unnecessary because children live with grandparents; permanency already served by relative placement (citing Cranford/Bunch). | DHS: Children still in DHS custody (temporary), grandparents not committed to permanency, parents’ instability and substance abuse risk harm; permanency via adoption/TPR needed. | Court affirmed TPR: grandparents were temporary placement; permanency required; reunification unlikely. |
| Whether ICWA expert satisfied “likely to result in serious emotional or physical damage” standard | Dalana: Choctaw expert said there was a “risk” of harm, not that harm was “likely”; expert didn’t clearly recommend TPR—ICWA standard unmet. | DHS: Expert testified risk and placement compliance; trial court reasonably construed testimony to satisfy ICWA requirement. | Court rejected the semantic distinction between “risk of” and “likely to”; expert’s testimony sufficient; ICWA requirement met. |
| Sufficiency / statutory grounds for termination | Dalana: did not challenge statutory grounds on appeal. | DHS: statutory findings supported by evidence (drug use, incarceration, instability). | Appellate court deemed statutory-ground challenges waived; findings affirmed. |
| Whether less-restrictive alternatives should have been used (analogy to Cranford/Bunch) | Dalana: this case is like Cranford/Bunch where TPR was reversed because relative custody provided permanency. | DHS: Those cases differ—here children remained in DHS custody and needed permanency; prospects for reunification were poor. | Court distinguished Cranford/Bunch and similar authority; TPR appropriate. |
Key Cases Cited
- Cranford v. Ark. Dep’t of Human Servs., 2011 Ark. App. 211, 378 S.W.3d 851 (reversal of TPR where child was in legal custody of relative and permanency not at issue)
- Bunch v. Ark. Dep’t of Human Servs., 2017 Ark. App. 374, 523 S.W.3d 913 (relying on Cranford to reverse TPR where relative custody provided stability)
- Scrivner v. Ark. Dep’t of Human Servs., 2016 Ark. App. 316, 497 S.W.3d 206 (distinguishing Cranford where children remained in DHS custody and needed permanency)
- Ross v. Ark. Dept. of Human Servs., 2010 Ark. App. 660, 378 S.W.3d 253 (affirming TPR despite stable placement where parental conduct posed clear harm)
- Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 251 (setting out best-interest factors for TPR analysis)
- Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (issues not argued on appeal are waived)
- Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356 (Cranford’s stability/hope for reunification standards contrasted with cases lacking those features)