Lively v. Arkansas Department of Human Services
2015 Ark. App. 131
| Ark. Ct. App. | 2015Background
- Jonathan Lively, an Iraq combat veteran, has PTSD and a history of substance abuse; DHS removed his two children and placed them with their mother, Kayla.
- DHS obtained a no-contact order and adjudicated the children dependent/neglected in May 2013 after a stipulation citing Jonathan’s drug use, mental-health issues, and domestic violence; Jonathan did not attend that hearing but had counsel.
- Jonathan completed VA rehabilitation in July 2013, relapsed in August, reentered treatment, later lived with his parents, and had intermittent drug tests and an arrest for public intoxication.
- DHS filed a petition to terminate Jonathan’s parental rights in February 2014; a termination hearing occurred in June 2014, after which the circuit court terminated his rights on multiple statutory grounds and found termination in the children’s best interest based in part on adoptability.
- On appeal, the Arkansas Court of Appeals reviewed de novo, upheld service and sufficiency findings, but reversed because the trial court’s adoptability finding was unsupported and legally irrelevant given the children’s stable placement with their mother.
Issues
| Issue | Plaintiff's Argument (Lively) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| 1. Was Lively denied due process because of defective service at the adjudication stage? | Defective service at adjudication prejudiced his rights at termination. | Termination is a separate proceeding; Lively was properly served and appeared at termination. | Not considered on appeal (issue not before court); termination-stage service was proper and Lively appeared. |
| 2. Was there sufficient evidence of statutory grounds to terminate parental rights? | Argues insufficient evidence for statutory grounds challenged on appeal. | Court relied on multiple statutory grounds supported by record; at least one unchallenged ground suffices. | Sufficient evidence for statutory grounds overall; unchallenged alternative grounds upheld termination-prong findings. |
| 3. Was termination in the children's best interest (adoptability)? | Trial court erred: no evidence of adoptability; children have a stable home with their mother so adoptability is irrelevant. | Court found children adoptable (citing CASA report and DHS testimony) and that termination served children’s welfare. | Reversed: adoptability finding unsupported by the record and legally irrelevant given permanent placement with mother; best-interest determination was therefore clearly erroneous. |
Key Cases Cited
- Yarborough v. Arkansas Department of Human Services, 96 Ark. App. 247, 240 S.W.3d 626 (Ark. Ct. App. 2006) (standard for termination review and clear-and-convincing burden)
- Dinkins v. Arkansas Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (Ark. 2001) (deference to trial court on credibility in parental-rights cases)
- Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (Ark. 2002) (failure to attack alternative independent grounds precludes reversal)
- Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (Ark. 1989) (same)
- Ross v. Arkansas Department of Human Services, 378 S.W.3d 253 (Ark. Ct. App. 2010) (termination may be appropriate absent adoptability where child would be at risk if returned)
- Fredrick v. Arkansas Department of Human Services, 377 S.W.3d 306 (Ark. Ct. App. 2010) (termination is an extreme remedy and rights are fundamental)