Newman v. Arkansas Department of Human Services
2016 Ark. App. 207
| Ark. Ct. App. | 2016Background
- Child C.N., a Cherokee Nation member born July 7, 2012, was removed May 2013 after medical professionals reported a one-week-old broken arm and insufficient parental explanation; child adjudicated dependent-neglected on Sept. 10, 2013.
- DHS developed a reunification plan requiring visitation, substance-abuse treatment and testing, psychological evaluation, parenting classes, domestic-violence course for Brent, and other services; permanency goal later included adoption.
- DHS filed a petition to terminate parental rights on Jan. 12, 2015 (after C.N. had been in care 22 months and past the 15-month filing guideline); termination hearing held March 13, 2015; oral grant of termination at hearing; written order entered Aug. 12, 2015.
- Evidence at hearing: medical testimony that injury was inconsistent with parents’ account; history of domestic violence between Brooke and Brent (multiple police calls, arrests, Taser video), ongoing substance abuse (positive drug tests, attempts to defeat testing), limited acceptance of responsibility for injury, and testimony from Cherokee Nation representative and DHS that return posed risk of serious harm and child was adoptable.
- Trial court found DHS proved three statutory grounds, found termination in child’s best interest, and expressly found, under ICWA, by beyond-a-reasonable-doubt standard (with qualified-expert testimony from the tribe rep) that continued custody was likely to result in serious physical or emotional damage.
Issues
| Issue | Plaintiff's Argument (Newmans) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| 1) Motion to dismiss termination petition as untimely under Ark. Code § 9-27-359(c) (filed after 15 months in foster care) | Filing after 15-month statutory deadline divested court of subject-matter jurisdiction; dismissal required | Statute’s timing is mandatory but contains no sanction; failure to meet deadline does not divest jurisdiction and delay caused no prejudice | Court affirmed denial of motion; no jurisdictional loss; delay benefitted parents and no prejudice shown |
| 2) Sufficiency of evidence to terminate parental rights (clear and convincing; ICWA §1912(f) beyond reasonable doubt) | Parents argue evidence was insufficient, urged reweighting: they attended services, improved, had not used drugs since Oct. 2014, counselor testified progress, and some police contacts did not result in convictions | DHS points to continued domestic violence, positive/attempted-subversion drug tests, failure to accept responsibility for injury, tribe rep expert testimony, and child’s adoptability; ICWA burden satisfied by beyond-a-reasonable-doubt finding and expert testimony | Court affirmed termination: failure-to-remedy ground proved by clear and convincing evidence; ICWA §1912(f) requirement met beyond a reasonable doubt; termination was in child’s best interest |
| 3) Motion to set aside/new trial based on trial court’s failure to file written termination order within 30 days (Ark. Code § 9-27-341(e)) | Five-month delay in entry of written order constituted irregularity/miscarriage of justice and warranted relief under Ark. R. Civ. P. 59/60 | Delay was unfortunate but did not prejudice parents or affect fairness; posthearing conduct showed no improvement (Brent’s subsequent assault) | Court affirmed denial of motion; delay did not render proceedings unfair or cause miscarriage of justice |
Key Cases Cited
- Hill v. Ark. Dep’t of Human Servs., 389 S.W.3d 72 (Ark. Ct. App. 2012) (timing violations in termination procedures do not automatically divest court of jurisdiction absent legislative sanction or prejudice)
- Ford v. Ark. Dep’t of Human Servs., 434 S.W.3d 378 (Ark. Ct. App. 2014) (standards for review in termination cases: de novo review; clear-and-convincing proof; best-interest factors include adoptability and potential harm)
- Burks v. Ark. Dep’t of Human Servs., 61 S.W.3d 184 (Ark. Ct. App. 2001) (ICWA §1912(f) requires proof beyond a reasonable doubt, including qualified expert testimony, that continued custody is likely to result in serious damage)
- Lee v. Ark. Dep’t of Human Servs., 285 S.W.3d 277 (Ark. Ct. App. 2008) (only one statutory ground is necessary to terminate parental rights)
- Ark. Dep’t of Human Servs. v. Fort Smith Sch. Dist., 455 S.W.3d 294 (Ark. 2015) (standard of review and deference regarding denials of motions to dismiss in DHS termination context)
- Jones v. Double "D" Properties, Inc., 98 S.W.3d 405 (Ark. 2003) (abuse-of-discretion standard for Rule 60 motions)