Faussett v. Ark. Dep't of Human Servs.
2017 Ark. App. 168
| Ark. Ct. App. | 2017Background
- Children M.F., D.F., J.B., and A.B. were removed after emergency custody/ dependency-neglect proceedings beginning January–April 2015; Drew County found them dependent-neglected and at risk from drugs, housing, and educational neglect.
- Permanency-planning hearing occurred January 15, 2016; court changed goal to termination and adoption because both parents were incarcerated and had not complied with case plans.
- The Department filed a petition to terminate parental rights on March 24, 2016 (filed after the 30-day period set in Ark. Code Ann. § 9-27-338(g)).
- Father Arvol Baty appealed via a no-merit appeal; appellate counsel moved to withdraw after finding no arguable issues and Baty filed pro se points that were not persuasive.
- Mother Lisa Faussett moved to dismiss the termination petition as untimely (filed beyond 30-day statutory window); the circuit court denied the motion and later terminated both parents’ rights; both parents appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Baty’s no-merit appeal | Baty filed pro se points asserting errors | Counsel reviewed record and concluded no-merit; adverse rulings supported termination | Affirmed termination; appellate counsel’s no-merit compliance and motion to withdraw granted |
| Timeliness of termination petition (Ark. Code Ann. § 9-27-338(g)) | Faussett: petition filed late (post-30 days); dismissal or new permanency hearing required | Dept.: statute provides no remedy for late filing; dismissal would harm children; court should consider best interest | Denied dismissal; court may proceed despite late filing where statute prescribes no sanction; termination affirmed |
| Whether mandatory statutory language requires a remedy for late filing | Faussett: mandatory language must be enforced; timing integral to statutory scheme | Dept.: where legislature provides no sanction, courts will not invent one; past precedent refuses automatic loss of jurisdiction | Followed precedent (Hill, Newman): no remedy intended by legislature; denial of dismissal proper |
| Need to show prejudice from delay | Faussett: prejudice is presumed or not required to show | Dept.: no prejudice shown; delay gave more time to comply; best interests of juveniles justify proceeding | No prejudice established; proceeding was in children’s best interest; denial affirmed |
Key Cases Cited
- Linker-Flores v. Arkansas Dep’t of Human Servs., 359 Ark. 131 (discussing no-merit appellate duties in termination cases)
- Hill v. Arkansas Dep’t of Human Servs., 2012 Ark. App. 108 (refusing to find loss of jurisdiction where statute mandatory but provided no sanction)
- Newman v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 207 (holding delay in filing termination petition did not require dismissal absent statutory remedy or prejudice)
- Hardy v. Arkansas Dep’t of Human Servs., 2009 Ark. App. 751 (mandatory notice provisions require reversal when notice not given)
- Mayberry v. Flowers, 347 Ark. 476 (due process requires notice reasonably calculated to allow a parent to be heard before termination)
- Gerber Prod. Co. v. Hewitt, 2016 Ark. 222 (statutory-construction principles: give words ordinary meaning and avoid surplusage)