Josue Tovias v. Arkansas Department of Human Services and Minor Child
596 S.W.3d 66
Ark. Ct. App.2020Background
- JT2 was born prematurely on April 30, 2018; DHS filed for emergency custody and dependency-neglect on May 18, 2018.
- A prior case involving JT2’s half‑brother (JT1) resulted in findings of aggravated circumstances and termination of Tovias’s parental rights; this court reversed that termination in Tovias I because DHS had not established paternity for JT1.
- DHS filed a separate petition to terminate Tovias’s parental rights to JT2 on March 4, 2019.
- The circuit court denied Tovias’s March 8, 2019 motion to reinstate reunification services, relying on the caseworker’s testimony that no services were likely to produce reunification given the severity of past abuse.
- At the termination hearing the court found aggravated circumstances as to JT2: although Tovias completed parts of the case plan, the court credited evidence that he continued a relationship and cohabitation with JT2’s mother (Melissa), lied about it, and would not protect the child from her.
- The circuit court terminated parental rights; the Court of Appeals affirmed.
Issues
| Issue | Tovias’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether denial of reinstating reunification services was reviewable and timely appealed | Denial was improper; reunification should be reinstated | DHS argued the denial was not immediately appealable and that any challenge was untimely | Court treated the point as properly before it in the appeal of the final termination order and affirmed denial on the merits (no evidence services would succeed) |
| Whether Tovias may now challenge adjudication of JT2 as dependent‑neglected | Contended adjudication was erroneous | DHS did not contest procedural appealability | Court held Tovias waived direct challenge to the adjudication by not appealing that order earlier and barred review now |
| Whether the court improperly relied on findings from the reversed Tovias I when finding aggravated circumstances for JT2 | Argued reversal of Tovias I vitiates reliance on prior findings and independent evidence here was insufficient | DHS relied on pleadings and evidence in the separate JT2 petition and on current testimony showing little likelihood of reunification | Court rejected the claim: Tovias I was reversed on paternity grounds (not sufficiency of aggravated‑circumstances findings), and DHS expressly pleaded aggravated circumstances in the JT2 petition; the aggravated‑circumstances finding stood |
| Whether evidence supported aggravated‑circumstances termination (sufficiency and credibility) | Pointed to completion of case plan and urged reweighing to favor reunification | DHS emphasized history of severe abuse, father’s failure to protect, his ongoing cohabitation with mother, and testimony that he lied and would not keep mother away | Court deferred to circuit court credibility determinations and affirmed: clear‑and‑convincing evidence supported aggravated circumstances and termination |
Key Cases Cited
- Pine v. Ark. Dep’t of Human Servs., 379 S.W.3d 703 (2010 Ark. App.) (standard of review and proof in parental‑termination appeals)
- Dinkins v. Ark. Dep’t of Human Servs., 40 S.W.3d 286 (2001 Ark.) (deference to circuit court credibility in child‑placement matters)
- Tovias v. Arkansas Department of Human Services (Tovias I), 575 S.W.3d 621 (2019 Ark. App.) (reversal of prior termination based on failure to establish paternity)
- McLemore v. Ark. Dep’t of Human Servs., 540 S.W.3d 730 (2018 Ark. App.) (definition and application of aggravated circumstances)
- Blasingame v. Ark. Dep’t of Human Servs., 542 S.W.3d 873 (2018 Ark. App.) (appellate refusal to reweigh evidence; credibility for trial court)
- Ashcroft v. Ark. Dep’t of Human Servs., 374 S.W.3d 743 (2010 Ark. App.) (failure to appeal adjudication order precludes later challenge)
- Lewis v. Ark. Dep’t of Human Servs., 217 S.W.3d 788 (2005 Ark.) (same principle on appellate review of adjudication)