McElroy v. Arkansas Department of Human Services
432 S.W.3d 109
Ark. Ct. App.2014Background
- Children H.F. (b. Dec. 21, 2011) and Z.F. (b. Nov. 23, 2010) were removed after H.F. was hospitalized for failure to thrive and a DHS investigation revealed prior findings of inadequate supervision and residence with a person on the maltreatment registry.
- An emergency custody order was entered Jan. 2012; children adjudicated dependent-neglected Mar. 14, 2012; reunification was the primary goal with adoption concurrent.
- A trial home placement began May 15, 2012 but ended May 29, 2012 when appellants smoked methamphetamine in the children’s presence; subsequent drug positives and noncompliance followed.
- DHS changed the goal to adoption Jan. 11, 2013 and filed a TPR petition Jan. 22, 2013, alleging statutory grounds including more-than-12-months out of home and subsequent factors making return contrary to children’s welfare.
- Trial court found both statutory grounds proven by clear and convincing evidence and that termination was in the children’s best interests; court terminated parental rights Apr. 5, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination of McElroy’s rights was supported where she made progress toward compliance | McElroy: she completed counseling, enrolled in college, obtained a 3‑bedroom trailer, and asserted she was drug free — progress should preclude termination | DHS/Court: despite some progress, McElroy continued drug use, failed to maintain stable housing/employment, and did not remedy conditions that caused removal for 12+ months | Affirmed: clear-and-convincing evidence supported statutory ground (12+ months out of home without remedy); termination not clearly erroneous |
| Whether the court abused its discretion by denying Fritter’s motion for continuance after appointment of counsel | Fritter: newly appointed counsel (two weeks before trial) needed more time; incarceration hampered counsel access and preparation | DHS/Court: Fritter was available in jail; counsel could have visited; no prejudice shown and appellant failed to raise certain arguments below | Affirmed: denial of continuance was not an abuse of discretion and appellant showed no prejudice |
Key Cases Cited
- Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992) (definition of clear-and-convincing evidence)
- J.T. v. Arkansas Department of Human Services, 329 Ark. 243, 947 S.W.2d 761 (1997) (standard for appellate review of factual findings in TPR cases)
- Dinkins v. Arkansas Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001) (de novo review applicable in termination cases)
- Cobbs v. Arkansas Department of Human Services, 87 Ark. App. 188, 189 S.W.3d 487 (2004) (trial-court credibility and weight given to judge’s observations in child-welfare matters)