Nicholas Myers and Myrtle Myers v. Arkansas Department of Human Services and Minor Child
660 S.W.3d 357
Ark. Ct. App.2023Background
- DHS removed the Minor Child (b. Oct. 29, 2020) after responding Dec. 10, 2020 to allegations that both parents used methamphetamine while caring for the child and that the child had been inadequately supervised; DHS placed the child in foster care and obtained emergency custody.
- The child was adjudicated dependent-neglected (Feb. 9, 2021); reunification was the initial goal but the plan was changed to adoption after the parents failed to show stability.
- DHS filed a termination petition (Feb. 25, 2022) asserting three statutory grounds: twelve-month failure to remedy, subsequent factors, and aggravated circumstances—little likelihood of successful reunification; DHS also alleged termination was in the child’s best interest.
- At the April 12, 2022 hearing DHS’s family-service worker testified the parents were only minimally compliant: missed the majority of ordered drug screens (Nicholas missed 33 of 42), neither completed an ordered hair-follicle test, and visits were inconsistent; the child has developmental delays and receives therapies in foster care.
- Nicholas was incarcerated near the end of the case and had recent DWI arrests; Myrtle is a C5 quadriplegic who had difficulty holding the child and relied on Nicholas and family for care and transportation.
- The circuit court terminated both parents’ rights (May 23, 2022) and found termination in the child’s best interest; the Court of Appeals affirmed despite noting some factual misstatements in the circuit court’s order because the full record supported termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to remedy (12-month) | Myerses: DHS failed to prove by clear and convincing evidence they did not remedy drug use or inability to care for the child. | DHS: Missed drug screens, positive tests earlier in the case, refusal/noncompletion of hair-follicle testing, minimal compliance, and lack of a care plan show failure to remedy. | Affirmed: Court held clear-and-convincing evidence supported termination for both parents. |
| Subsequent factors | Myerses: DHS did not prove reasonable services or that returning the child would be contrary to health/safety; Myrtle argued a relative could assist her care. | DHS: Earlier orders established reasonable efforts; parents’ continued noncompliance, criminal charges, and failure on drug testing show incapacity/indifference and risk to child. | Affirmed: Court found sufficient evidence of subsequent factors supporting termination. |
| Aggravated circumstances — little likelihood | Myerses: Court’s findings relied on unsupported or speculative evidence; services might have succeeded. | DHS: Caseworker testimony and parents’ history show little likelihood additional services would achieve reunification. | Affirmed: Whole-record review showed little likelihood reunification would succeed. |
| Best interest | Nicholas did not challenge best-interest; Myrtle argued the court relied on unsupported findings about sobriety and service participation. | DHS: Child is adoptable; parents’ past conduct and continued noncompliance posed potential harm. | Affirmed: Court found termination was in the child’s best interest based on adoptability and potential harm. |
Key Cases Cited
- Bright v. Zega, 186 S.W.3d 201 (Ark. 2004) (appellate courts may affirm for the right result even if lower court gave wrong reasons)
- Conn v. Ark. Dep’t of Hum. Servs., 85 S.W.3d 558 (Ark. App. 2002) (termination requires statutory grounds plus best-interest finding)
- Yarborough v. Ark. Dep’t of Hum. Servs., 240 S.W.3d 626 (Ark. App. 2006) (aggravated-circumstances requires more than mere prediction that services will fail)
- Ekberg v. Ark. Dep’t of Hum. Servs., 513 S.W.3d 307 (Ark. App. 2017) (parent’s refusal to accept responsibility supports failure-to-remedy finding)
- Furnish v. Ark. Dep’t of Hum. Servs., 529 S.W.3d 684 (Ark. App. 2017) (failure to submit to drug screens supports subsequent-factors ground)
- Lloyd v. Ark. Dep’t of Hum. Servs., 655 S.W.3d 534 (Ark. App. 2022) (caseworker testimony that no further services can reunify family supports aggravated-circumstances finding)
- Del Grosso v. Ark. Dep’t of Hum. Servs., 521 S.W.3d 519 (Ark. App. 2017) (failure to appeal earlier orders waives challenge to services finding)
- Hollinger v. Ark. Dep’t of Hum. Servs., 529 S.W.3d 242 (Ark. App. 2017) (partial compliance with case plan does not preclude termination when parents make adverse decisions)
- Renfro v. Ark. Dep’t of Hum. Servs., 385 S.W.3d 28 (Ark. App. 2011) (best-interest analysis requires considering adoptability and potential harm)
- In re Adoption of K.M.C., 969 S.W.2d 197 (Ark. App. 1998) (court must consider parental discharge of duties and risk of serious harm when assessing best interest)