562 S.W.3d 883
Ark. Ct. App.2018Background
- Newborn J.H. removed at birth (Aug. 19, 2016) after mother and child tested positive for amphetamines; Derrick Hunter identified as putative father and later established as biological father by DNA (99.99%).
- Hunter tested negative initially but admitted past marijuana use; DHS records showed a long history with true findings for sexual misconduct and physical abuse, and he is a level‑three sex offender.
- Court ordered services and testing; Hunter completed some services but had positive drug tests, violated visitation restrictions, and was ordered to complete a psychosexual evaluation.
- DHS filed to terminate parental rights (Oct. 17, 2017) on grounds including failure to remedy, subsequent factors, and aggravated circumstances; permanency hearing found no significant, measurable progress.
- At the January 19, 2018 termination hearing the court appointed counsel for Hunter (found indigent and requested counsel) and terminated his parental rights based on aggravated circumstances and best interest findings.
Issues
| Issue | Hunter's Argument | State/Court's Argument | Held |
|---|---|---|---|
| Whether Hunter was denied due process by not having counsel until the termination hearing | He was entitled to counsel earlier and was prejudiced by its late appointment | Statute requires appointment only for indigent parents from whom custody was removed and who request counsel; Hunter was adjudicated parent later and counsel was appointed once conditions were met | No due‑process violation; Wicks exception not triggered; appointment before termination was proper/harmless |
| Whether sufficient evidence supported termination under the "aggravated circumstances" ground | Insufficient evidence; court relied on speculation that services would not reunify | Record shows incarceration for drug charges, long DHS history with multiple true findings for sexual and physical abuse, substance issues, court‑order violations, and credibility problems | Affirmed: clear and convincing evidence supported aggravated‑circumstances finding |
| Whether termination was in the child’s best interest | Hunter claimed measurable progress and that some convictions were old | Court considered adoptability and potential harm; prior findings and risk factors weigh against reunification | Affirmed: best‑interest finding supported; appellant failed to litigate statutory factors on appeal |
| Whether appellate review should consider unpreserved constitutional claim | Hunter raised due‑process claim for first time on appeal and urged Wicks exception | Contemporaneous‑objection rule applies; Wicks exception requires flagrant error | Court declined to consider new due‑process claim absent demonstration of flagrant error |
Key Cases Cited
- Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (termination‑of‑parental‑rights cases reviewed de novo)
- Maxwell v. Ark. Dep't of Human Servs., 90 Ark. App. 223, 205 S.W.3d 801 (issues raised first on appeal are not considered)
- Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (contemporaneous‑objection rule and narrow court‑intervention exception)
- Sills v. Ark. Dep't of Human Servs., 2018 Ark. App. 9, 538 S.W.3d 249 (appointment of counsel before termination hearing can render earlier non‑appointment harmless)
- Jefferson v. Ark. Dep't of Human Servs., 356 Ark. 647, 158 S.W.3d 129 (appointment timing and harmlessness discussion)
- McLemore v. Ark. Dep't of Human Servs., 2018 Ark. App. 57, 540 S.W.3d 730 (aggravated‑circumstances standard requires more than mere prediction)
- Christian‑Holderfield v. Ark. Dep't of Human Servs., 2011 Ark. App. 534, 378 S.W.3d 916 (best‑interest analysis protects child health and well‑being)
- Jones v. Ark. Dep't of Human Servs., 2017 Ark. App. 125, 515 S.W.3d 151 (potential‑harm analysis conducted broadly)