Nicholas Burks, Sr. v. Arkansas Department of Human Services and Minor Children
634 S.W.3d 527
Ark. Ct. App.2021Background
- DHS removed N.B. (4) and Z.B. (3) after finding the home hazardous and parents fled when DHS attempted to place a 72-hour hold; children later taken into custody.
- DHS filed emergency-custody and dependency-neglect petitions; circuit court entered temporary custody, appointed counsel to parents, and an AAL for the children.
- At adjudication the court found both children dependent-neglected, found Burks to be N.B.’s parent, but ordered Burks to submit to DNA testing to establish paternity for Z.B.; Burks did not comply or petition to establish paternity.
- The AAL petitioned to terminate parental rights; the circuit court terminated both parents’ rights on the aggravated‑circumstances ground (little likelihood services would lead to reunification).
- Burks has a history of prior DHS involvement, admitted long-term drug use, had positive and refused drug tests, attended minimal recommended treatment, had limited visitation, and was incarcerated at the time of the termination hearing.
- Burks appealed, arguing DHS/AAL failed to prove he is Z.B.’s legal “parent,” that aggravated circumstances were not proven as to both children, and that termination was premature.
Issues
| Issue | Burks' Argument | DHS/AAL Argument | Held |
|---|---|---|---|
| Whether Burks was proven to be Z.B.’s “parent” for termination | DHS and AAL failed to prove parentage; no court finding; violates Earls/Northcross | Burks was treated and litigated as the father/putative father; prior records and conduct support parent status | Reversed and remanded as to Z.B.; court must make an express finding of parentage before terminating rights |
| Whether aggravated‑circumstances supported termination (N.B.) | Insufficient evidence; premature; DHS failed to provide inpatient treatment and adequate time | Extensive DHS history, persistent substance abuse, failure to follow through with services, poor visitation, incarceration, ongoing relationship with mother | Affirmed for N.B.; clear-and-convincing evidence supports aggravated circumstances |
| Whether termination was premature | Needed more time and specific services to rehabilitate | No temporal requirement for aggravated‑circumstances; prior case history and lack of available services justify termination | Rejected as to N.B.; aggravated‑circumstances ground does not require a time period — termination not premature |
Key Cases Cited
- Earls v. Ark. Dep’t of Human Servs., 518 S.W.3d 81 (Ark. 2017) (circuit court must make an express finding of parentage before terminating parental rights)
- Northcross v. Ark. Dep’t of Human Servs., 550 S.W.3d 919 (Ark. App. 2018) (reversed termination where court never found father to be the child’s parent)
- Terry v. Ark. Dep’t of Human Servs., 591 S.W.3d 824 (Ark. App. 2019) (parentage requires an express circuit‑court finding; mere assertions or DNA are insufficient alone)
- Tovias v. Ark. Dep’t of Human Servs., 575 S.W.3d 621 (Ark. App. 2019) (reversed where record lacked basis for finding man was a legal parent)
- Brown v. Ark. Dep’t of Human Servs., 542 S.W.3d 899 (Ark. App. 2018) (father waived challenge where he acquiesced to court’s prior finding of parental status)
- Kloss v. Ark. Dep’t of Human Servs., 585 S.W.3d 725 (Ark. App. 2019) (affirmed termination on aggravated‑circumstances where parent had persistent, unresolved drug issues and failed to follow through with treatment)
- Trogstad v. Ark. Dep’t of Human Servs., 609 S.W.3d 661 (Ark. App. 2020) (aggravated‑circumstances supported by extensive prior DHS history and lack of additional services to effect reunification)
- Willis v. Ark. Dep’t of Human Servs., 538 S.W.3d 842 (Ark. App. 2017) (aggravated‑circumstances does not require proof that meaningful services were provided)