Fenstermacher v. Arkansas Department of Human Services
2013 Ark. App. 88
Ark. Ct. App.2013Background
- DHS removed Fenstermacher's three daughters from their mother's custody on August 25, 2010 after a police investigation revealed hazardous home conditions and neglect.
- Emergency custody was ordered on August 30, 2010; probable cause supported removal was found in a September 2, 2010 order.
- The children were adjudicated dependent-neglected on September 30, 2010, with reunification as the case goal and DHS services offered to support family reunification.
- A May 26, 2011 review ordered the parent to complete parenting classes, submit to drug testing, obtain employment, and engage in counseling; the court later changed the goal to termination/adoption for the mother in a permanency order on August 4, 2011.
- The mother’s parental rights were terminated in January 2012; subsequently, DHS filed a petition to terminate Fenstermacher’s parental rights on March 5, 2012, alleging two statutory grounds.
- At the termination hearing, DHS presented evidence of housing instability, lack of a driver’s license, incomplete drug screening/treatment, and inability to meet the children’s special needs; Fenstermacher contested the grounds but acknowledged past counseling and housing changes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the alternate ground (subsequent factors) proven? | Fenstermacher argues the ground does not apply to him. | DHS contends the subsequent-factors ground was proven. | Yes; termination affirmed on subsequent-factors ground. |
| Was the termination in the children’s best interest? | Not contested by Fenstermacher. | DHS presented evidence supporting best interest for adoption. | Yes; termination in the best interest established. |
Key Cases Cited
- Hune v. Ark. Dep’t of Human Servs., 2010 Ark. App. 543 (Ark. App. 2010) (de novo review; clear and convincing standard for termination)
- J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243 (Ark. 1997) (clear and convincing evidence standard; credibility of witnesses matters)
- Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240 (Ark. App. 2010) (one statutory ground sufficient for termination)
- Bradbury v. Ark. Dep’t of Human Servs., 2012 Ark. App. 680 (Ark. App. 2012) (de novo review supports termination on alternative grounds)
- Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288 (Ark. App. 2011) (presence of alternate grounds analyzed in termination)
- Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340 (Ark. 2005) (credibility and factual sufficiency in review of termination decisions)
- Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328 (Ark. App. 2007) (extreme remedy; balancing health and safety of child in termination)