McElwee v. Arkansas Department of Human Services
2016 Ark. App. 214
| Ark. Ct. App. | 2016Background
- M.M., born April 2013, was taken into emergency custody April 17, 2014, after reports of domestic violence, parental drug use, unsafe home conditions, and a healing burn on the child that medical personnel said was not consistent with the parents’ explanation.
- A case plan (May 2014) required Michael McElwee to establish paternity, complete parenting/anger-management/domestic-violence classes, undergo drug/alcohol and psychological assessments, secure stable housing and employment, resolve criminal matters, and submit to drug screens.
- DNA later confirmed McElwee as the father. The child was adjudicated dependent-neglected May 27, 2014; a review found McElwee noncompliant with the plan, repeatedly incarcerated, and visiting infrequently. The goal remained reunification with a concurrent goal of adoption.
- The Department petitioned to terminate McElwee’s parental rights; McElwee was serving a lengthy sentence for delivery of methamphetamine and had a prior termination of parental rights involving another child.
- At the termination hearing McElwee testified to changed views, some in-custody programming, and requested more time; the caseworker testified McElwee had a long-standing pattern of drug use, criminality, and lack of progress and that additional time would risk the child’s safety.
- The circuit court found several statutory grounds for termination (including subsequent incarceration, prior termination, substantial criminal sentence, aggravated circumstances tied to drug addiction) and held termination was in the child’s best interest. McElwee appealed only the best-interest finding.
Issues
| Issue | McElwee's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether termination was in child’s best interest despite relative placement | Termination unnecessary because M.M. was placed with a relative; less-restrictive permanent relative custody preferred | Termination appropriate because returning M.M. posed potential harm due to parents’ drug use, domestic violence, mental-health issues, and chronic incarceration | Court affirmed termination as not clearly erroneous; best-interest finding supported by clear and convincing evidence |
Key Cases Cited
- Madison v. Arkansas Department of Human Services, 428 S.W.3d 555 (recognizing best-interest factors for termination include adoptability and potential harm if returned to parent)
- Renfro v. Arkansas Department of Human Services, 385 S.W.3d 285 (court need not prove every factor by clear and convincing evidence; overall finding must be clear and convincing)
- Cranford v. Arkansas Department of Human Services, 378 S.W.3d 851 (reversing termination where relative placement posed no danger and continued parental contact presented no risk)
- Drake v. Arkansas Department of Human Services, 442 S.W.3d 5 (prior terminations may indicate ongoing risk and be considered in potential-harm analysis)
- Whittiker v. Arkansas Department of Human Services, 469 S.W.3d 396 (past behavior is a predictor of potential harm if child returned)