McHenry v. Ark. Dep't of Human Servs.
2013 Ark. App. 711
Ark. Ct. App.2013Background
- Albert and Joyce McHenry were the paternal grandparents and legal custodians of three grandchildren removed from their parents in 2009.
- In July 2011 DHS filed for emergency custody alleging extreme environmental neglect at the grandparents’ home (unsanitary conditions, infestation, trash and filth), and obtained ex parte custody.
- The children were adjudicated dependent-neglected (Sept. 29, 2011); review orders in 2012 continued DHS custody and found return to the McHenrys contrary to the children’s best interests.
- Permanency planning in Nov. 2012 designated adoption as the plan and authorized filing to terminate parental rights; DHS filed to terminate the parents’ rights in July 2012 and included the McHenrys as custodians.
- After hearings in March–April 2013, the trial court found a material change in circumstances and, by clear and convincing evidence, terminated the McHenrys’ custodianship and ended reunification services/visitation; appellants appealed.
- On appeal the McHenrys raised arguments about confusion between guardianship and custodianship and lack of proof of legal custody/guardianship, but those claims were not preserved below and therefore were rejected; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court improperly terminated the McHenrys’ custodianship by confusing guardianship and custodianship | McHenrys: court and parties used guardianship/custodianship interchangeably, so termination is legally unclear | DHS: trial court expressly treated appellants as custodians and terminated that custodianship | Trial court clearly found appellants were legal custodians and properly terminated custodianship; affirmed |
| Whether appellants proved they held legal custody/guardianship such that termination was improper | McHenrys: no documentation was presented proving legal custodian or guardian status | DHS: record and court findings establish appellants’ status as custodians for purposes of the proceedings | Issue not preserved below; alternatively, court found appellants were custodians and dismissal/termination was proper |
| Whether arguments about sufficiency, best interest, or material change were preserved | McHenrys: challenged the termination on substantive grounds on appeal | DHS: record shows appellants abandoned sufficiency challenge on appeal and did not preserve other arguments | Appellants abandoned sufficiency claims and failed to preserve the custodianship/guardianship arguments; appellate court affirmed |
Key Cases Cited
- Bank of the Ozarks v. Jim Wood Co., 379 S.W.3d 548 (Ark. App. 2010) (appellate review requires preservation of arguments below; issues not raised at trial are generally not preserved for appeal)