Ross v. Ark. Dep't of Human Servs.
529 S.W.3d 692
Ark. Ct. App.2017Background
- Two children, JR (born 2008) and MR (born 2009), entered DHS custody in April 2015 after being found in an unsafe home with a drug-using grandmother; Jessie Ross was incarcerated and later excluded as JR’s father by DNA.
- Krista Jameson (mother) had a history of drug use, mental-health issues, unstable housing, and lived with a man (David) on the child-maltreatment registry; she partially complied with case-plan services but did not secure adequate, safe housing.
- Jessie Ross remained incarcerated throughout the case on long felony sentences (including a 20-year sentence) and had no definite release date.
- DHS changed the permanency goal to adoption at the September 2016 permanency-planning hearing; a termination petition was filed in November 2016 and tried in January 2017.
- Trial court found statutory grounds for termination as to Krista (multiple statutory grounds) and Jessie (lengthy incarceration and aggravated circumstances) and concluded termination served the children’s best interests; both parents appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in changing permanency goal to adoption in Sept. 2016 (Krista) | Krista: court should have given 3 more months under the third-ranked preferential goal because she was making measurable progress and DHS failed to provide needed services | DHS/AL: permanency order moot once parental rights terminated; trial court had discretion and later afforded Krista additional months before termination | Held: No clear error. Court had already given Krista additional time; termination hearing occurred ~4 months later and Krista still lacked readiness; trial court permissibly considered later improvements. |
| Whether termination as to Krista was supported by statutory grounds and best-interest finding | Krista: argued the permanency decision foreclosed consideration of her subsequent progress | DHS: Krista’s housing, living with a registered sex offender, and chronic instability justified termination | Held: Termination affirmed — trial court relied on full record, found clear-and-convincing evidence of statutory grounds and best interest. |
| Whether termination as to Jessie was appealable / merits (no-merit brief) | Jessie (pro se): DHS failed to seek relative placement before terminating rights | Counsel (no-merit): incarceration and sentences constitute statutory ground; no meritorious appellate issue | Held: No merit. Jessie’s 20-year sentence is a statutory ground; incarceration created potential harm and precluded placement; relative-placement claim not preserved and has no merit. Counsel granted leave to withdraw. |
| Admissibility of caseworker testimony about "potential harm" from returning child to incarcerated parent | Jessie: objection as speculative | DHS/AL: statute requires consideration of potential harm; testimony permissible | Held: Testimony admissible; potential harm may be prospective and trial court properly considered lack of stability from incarceration. |
Key Cases Cited
- Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (Ark. 2004) (standards for counsel withdrawing in no-merit appeals in DHS termination cases)
- Ellis v. Ark. Dep’t of Human Servs., 2016 Ark. 441, 505 S.W.3d 678 (appellate review standard for permanency-planning orders)
- Murray v. Ark. Dep’t of Human Servs., 2013 Ark. App. 431, 429 S.W.3d 288 (two-step termination analysis: unfitness and best interest)
- Hamman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, 435 S.W.3d 495 (clear-and-convincing evidence standard on termination appeals)
- Myers v. Ark. Dep’t of Human Servs., 2011 Ark. 182, 380 S.W.3d 906 (best-interest factors: adoptability and potential harm from return)
- Woodward v. Ark. Dep’t of Human Servs., 2017 Ark. App. 91, 513 S.W.3d 284 (parent’s prison sentence can constitute a substantial period of the child’s life)