Howell v. Arkansas Department of Human Services
2017 Ark. App. 154
Ark. Ct. App.2017Background
- Ricky and Susan Howell had prior DHS protective-services involvement for illegal drug use, poor home conditions, and failure to provide children's medications; children were removed after Ricky stated he could not handle them.
- March 12, 2015: circuit court found probable cause to keep children in DHS custody and ordered services (psych evaluation, counseling, drug assessment and testing, housing, compliance with case plan); Cherokee Nation notified of Indian-child eligibility.
- April 14, 2015: adjudication—children found dependent-neglected; ICWA applied because Susan is an enrolled Cherokee Nation member.
- Parents received services and visitation; Ricky tested positive for THC, failed to complete anger-management and drug programs, and showed limited parenting ability at visits; Susan was compliant but showed minimal progress caring for special-needs children.
- March 16, 2016: permanency changed to adoption; court found return would likely cause serious emotional or physical harm and parents had not made substantial measurable progress.
- DHS petitioned to terminate parental rights (grounds: failure to remedy conditions after 12 months under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a); and subsequent factors under § 9-27-341(b)(3)(B)(vii)(a)); trial court terminated both parents; appeals followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether parents failed to remedy conditions causing removal (Ark. Code) | Ricky: drug positives questionable; had been sober since ~one month after removal; disputed testing procedures. Susan: adjudication used lower ICWA burden; challenges that order. | DHS: parents remained noncompliant; Ricky continued drug use and failed required programs; Susan made only minimal progress and could not meet children’s special needs. | Court: affirmed — findings not clearly erroneous as to Ricky; Susan waived challenge to adjudication (no timely appeal / no contemporaneous objection). |
| Whether subsequent factors support termination (Ark. Code) | Parents argued insufficiency; temporal element alleged. | DHS relied on additional failures and lack of rehabilitation after removal. | Court: did not need to decide because one ground suffices to terminate parental rights. |
| Whether ICWA’s "qualified expert" requirement was satisfied (25 U.S.C. § 1912(f)) | Susan: Cherokee Nation witness (Nicole Allison) was not shown to be a qualified expert; her qualification not preserved at trial. | DHS/court: Allison designated as qualified expert; testimony relied upon; no contemporaneous objection. | Majority: issue waived/unpreserved; affirmed termination. Dissent: sufficiency under ICWA is an element the State must prove and may be raised on appeal in bench trial; trial record lacks adequate foundation for expert qualification. |
| Whether returning children would likely result in serious emotional or physical harm (ICWA standard) | Ricky: no evidence he could not parent or home was unfit. | DHS: parental drug use, inability to manage children at visits, and past behavior predict likely harm. | Court: affirmed — past drug use and visitation behavior supported finding of likely harm; deference to trial-court credibility findings. |
Key Cases Cited
- Ullom v. Arkansas Department of Human Services, 340 Ark. 615 (standard of review and deference in termination appeals)
- Jefferson v. Arkansas Department of Human Services, 356 Ark. 647 (untimely appeal from adjudication waives challenges to that order)
- Williamson v. Elrod, 348 Ark. 307 (timing of challenges to sufficiency of proof; directed-verdict timing discussion)
- Harbin v. Arkansas Department of Human Services, 2014 Ark. App. 715 (parental drug use as predictor of harm)
- Wade v. Arkansas Department of Human Services, 337 Ark. 353 (definition of clearly erroneous review standard)