Mahone v. Arkansas Department of Human Services
383 S.W.3d 854
Ark.2011Background
- Department removed T.M. (b. 1997) and K.M. (b. 2000) from their mother Faith Randolph’s custody in Dec 2008 after she was arrested for cocaine possession; D.R., a half-brother, also placed with maternal grandmother Teresa Taylor.
- Adjudication in Feb 2009 found the children dependent-neglected due to Randolph’s actions; Mahone’s home study allowed unsupervised visitation with T.M. and K.M.; Randolph had supervised visitation.
- Permanency planning on Nov 18, 2009 shifted goal to termination of Randolph’s rights while continuing reunification chances for Mahone; Mahone’s compliance varied (some missed reporting, but drug screens were clean) and visits were generally positive; custody remained with Taylor, with reevaluation for Mahone.
- Hearing on Mar 19, 2010 DHS recommended placement with Mahone; April 7, 2010 permanency order placed permanent custody with Taylor and allowed standard visitation with Mahone plus optional extra arrangements; Mahone appeals.
- Court ultimately held that the first statutory preference applies to Mahone as a parent; the circuit court erred by using a sibling-separation concept rather than applying 9-27-338(c); reversed and remanded to apply the proper statutory preference and best-interests analysis.
- Constitutional arguments raised by Mahone were not preserved or briefed, so not addressed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the first statutory preference applies to Mahone as a parent | Mahone should receive the first preference since he is a parent | Taylor/DHS contends the first preference does not apply to noncustodial parents in this setting | First preference applies to Mahone as a parent |
| Whether the court used the correct framework (9-27-338) and avoided sibling-separation | Circuit court’s reasoning relied on sibling separation rather than statutory preferences | Court may consider best interests including keeping siblings together | Court erred by not applying proper statutory preferences; remanded for proper analysis |
| Whether remand was required to correct the analysis | Remand needed to reassess best interests under correct preference | Remand ordered to apply proper preference and review best-interests analysis |
Key Cases Cited
- Judkins v. Duvall, 97 Ark.App. 260, 248 S.W.3d 492 (Ark. App. 2007) (statutory interpretation of first preference not limited to a parent actually living with child)
- Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (Ark. 1998) (avoid adding words to statute to convey absent meaning)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (fundamental right of parents to raise children absent unfitness)
- Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (individual parental rights require individualized assessment)
- Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (Ark. 2008) (context of permanency and appellate review)