Lester Perry v. Arkansas Department of Human Services and Minor Children
669 S.W.3d 865
Ark. Ct. App.2023Background
- DHS removed four children from Lester Perry and Tequila Rice in November 2020 for inadequate supervision; Lester was adjudicated father of MC2 and MC3, but paternity of MC4 was never legally established.
- The court ordered services (parenting classes, counseling, drug/alcohol assessment and screens, psychological evaluation), supervised visitation, and housing/stability requirements; Lester later completed the case plan and had a negative hair-follicle test in November 2021.
- By March 2022 the younger children (MC2–MC4) were placed with a relative and the permanency goal for them became adoption; DHS and the attorney ad litem filed a joint termination petition in June 2022 alleging multiple grounds against both parents.
- At the July 28, 2022 termination hearing DHS witnesses testified Lester remained involved with Tequila and might not protect the children; Lester testified he completed services, obtained a four‑bedroom apartment, remained employed, and had separated from Tequila.
- The circuit court terminated Lester’s parental rights to MC2, MC3, and MC4 based on twelve‑month failure-to-remedy and other subsequent factors, finding Lester not credible; the Court of Appeals reversed termination as to MC2 and MC3 and held termination as to MC4 was erroneous because paternity had not been established, and remanded.
Issues
| Issue | Plaintiff's Argument (Perry) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether Perry was a legally established parent of MC4 | Perry: No; paternity not established by statute | DHS: Treated him as a parent based on prior case and contact | Reversed termination as to MC4—court erred; paternity not established in record |
| Sufficiency of evidence for 12‑month "failure to remedy" (MC2/MC3) | Perry: He completed services, maintained housing/employment, and made measurable progress | DHS: Perry remained unstable and failed to internalize services; contact with Tequila posed ongoing risk | Reversed—record lacks substantiated, material findings showing unresolved conditions to support termination |
| Sufficiency of evidence for "other subsequent factors" (contact with Tequila) | Perry: Alleged contacts were speculative, incidental, and he was never ordered to sever contact | DHS: Multiple incidents showed continued contact and poor judgment that risked children’s safety | Reversed—termination cannot rest on speculation or credibility findings alone; DHS didn’t prove adjudicated subsequent factors or notice required by statute |
| Best‑interest (potential harm/adoptability) | Perry: Returning children posed no proven risk; he had bond and compliance | DHS: Children are adoptable and risk exists from exposure to Tequila | Not reached on appeal—court remanded after reversing statutory‑grounds finding |
Key Cases Cited
- Guthrey v. Arkansas Department of Human Services, 510 S.W.3d 793 (Ark. Ct. App. 2017) (reversing termination where ruling rested on credibility without sufficient substantive evidence)
- Mason v. Arkansas Department of Human Services, 642 S.W.3d 260 (Ark. Ct. App. 2022) (association with third party insufficient to terminate where parent showed compliance and progress)
- Campos v. Arkansas Department of Human Services, 644 S.W.3d 465 (Ark. Ct. App. 2022) (parental status must be established by court order before terminating rights)
- Earls v. Arkansas Department of Human Services, 518 S.W.3d 81 (Ark. 2017) (procedural requirements for termination and parent definition under juvenile code)
- Geren Williams v. Green, 458 S.W.3d 759 (Ark. Ct. App. 2015) (credibility findings must relate to material facts to uphold a termination)
- Bradbury v. Arkansas Department of Human Services, 424 S.W.3d 896 (Ark. Ct. App. 2012) (deference to circuit court credibility determinations in termination cases)
- Gulley v. Arkansas Department of Human Services, 498 S.W.3d 754 (Ark. Ct. App. 2016) (best‑interest potential‑harm inquiry need not show actual harm)