Melissa Everly v. Arkansas Department of Human Services and Minor Child
589 S.W.3d 425
Ark. Ct. App.2019Background
- DHS removed BE (b. 11/05/06) after BE alleged sexual contact by Melissa’s boyfriend; CACD found the allegation true and BE was adjudicated dependent-neglected.
- Court ordered services and conditions for reunification (housing, employment, parenting classes, psychological evaluation, substance screens, no contact with boyfriend); BE was placed with paternal grandparents.
- Over ~21 months Melissa repeatedly missed or failed services, tested positive for THC on most screens, maintained relationships with unstable adults, and continued to deny BE’s allegations against the boyfriend.
- DHS filed to terminate parental rights alleging failure to remedy, failure to provide meaningful support, abandonment, and subsequent factors; termination hearing occurred October 23, 2018.
- The circuit court terminated Melissa’s parental rights on three statutory grounds and found, by clear and convincing evidence, termination was in BE’s best interest (child adoptable; return would risk psychological/physical harm).
- On appeal Melissa limited her challenge to the best-interest finding (arguing relative permanent custody was a less-restrictive alternative and termination severed sibling ties); the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was in child’s best interest vs. less-restrictive permanent-relative custody | Melissa: permanency with relatives (grandparents) was a less-restrictive alternative that should have been used | DHS/Court: mother remained unrehabilitated and posed ongoing risk; child is adoptable and needs permanency | Affirmed: less-restrictive alternative inappropriate given mother’s continued instability and risk |
| Whether court erred by not considering effect on sibling relationships | Melissa: termination severs ties with half-siblings and court failed to weigh that adequately | DHS/Court: no evidence of a meaningful sibling bond; best-interest of the child controls | Affirmed: no evidence of genuine sibling relationship; absence of specific finding not reversible error |
| Whether evidence supported finding mother was not rehabilitated | Melissa: claimed improved stability (medication, brief abstinence, housing) | DHS: multiple positive THC tests, dependence on others for finances/housing, missed services, denial of allegations | Affirmed: factfinder credited DHS and BE; Melissa’s testimony found not credible |
| Whether the best-interest determination met the clear-and-convincing standard | Melissa: contends termination not in BE’s best interest | DHS: adoptability and potential harm supported the finding; appellate standard is de novo review but defer to factfinder on credibility | Affirmed: appellate court found best-interest supported by clear and convincing evidence; no clear error |
Key Cases Cited
- Roland v. Arkansas Department of Human Services, 552 S.W.3d 443 (Ark. App. 2018) (standard for appellate review in termination cases)
- Ware v. Arkansas Department of Human Services, 503 S.W.3d 874 (Ark. App. 2016) (best-interest factors: adoptability and potential harm)
- Pine v. Arkansas Department of Human Services, 379 S.W.3d 703 (Ark. App. 2010) (potential-harm analysis may be broad and need not identify specific harm)
- Singleton v. Arkansas Department of Human Services, 468 S.W.3d 809 (Ark. App. 2015) (best-interest finding must be by clear and convincing evidence)
- Fisher v. Arkansas Department of Human Services, 569 S.W.3d 886 (Ark. App. 2019) (appellate reversal standard for termination orders)
- Kerr v. Arkansas Department of Human Services, 493 S.W.3d 342 (Ark. App. 2016) (credibility determinations left to factfinder)
- Phillips v. Arkansas Department of Human Services, 585 S.W.3d 703 (Ark. App. 2019) (less-restrictive-alternative argument rejected where parent remained incapable of remedying issues)
- Cranford v. Arkansas Department of Human Services, 378 S.W.3d 851 (Ark. App. 2011) (reversal where child already in permanent custody of relative and parents might be afforded more time)
- Clark v. Arkansas Department of Human Services, 493 S.W.3d 782 (Ark. App. 2016) (distinguishing change-of-custody contexts)
- Allen-Grace v. Arkansas Department of Human Services, 577 S.W.3d 397 (Ark. App. 2019) (best interest of each child is controlling; sibling considerations relevant but not dispositive)
- Brown v. Arkansas Department of Human Services, 584 S.W.3d 276 (Ark. App. 2019) (insufficient evidence of sibling bond does not require reversal)
- Rice v. Arkansas Department of Human Services, 572 S.W.3d 907 (Ark. App. 2019) (no reversible error where court made no sibling-impact finding and visitation status did not support reversal)