Sharks v. Arkansas Department of Human Services & Minor Child
2016 Ark. App. 435
| Ark. Ct. App. | 2016Background
- DHS took emergency custody of four-month-old D.S. after Tomeko Sharks was seen swinging the child and was arrested for public intoxication while making threats; child adjudicated dependent-neglected.
- Court-ordered services for Sharks included psychological evaluation, counseling, substance assessment/treatment, random drug screens, parenting classes, stable housing and income; Sharks had a guardian ad litem due to concerning behavior.
- Sharks repeatedly missed or delayed compliance: positive drug/alcohol screens, missed drug tests and parenting classes, multiple arrests for public intoxication, intermittent visitation, and late completion of evaluations and treatment shortly before the termination hearing.
- D.S. has significant medical and therapy needs (speech, developmental, occupational therapy; reactive-airway disease; reflux) and required frequent medical care; foster mother provided intensive daily care.
- DHS filed to terminate Sharks’s parental rights under Arkansas Code § 9-27-341(b)(3)(B)(vii)(a) (other-factors ground) and (ix) (aggravated circumstances); the circuit court terminated rights, finding (1) subsequent factors made placement with father contrary to child’s welfare and (2) father showed incapacity/indifference to remedy them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was in child’s best interest considering adoptability and potential harm | Sharks: DHS produced only minimal evidence of adoptability and insufficient proof of potential harm if child returned | DHS/Court: Child’s need for permanency, testimony about many potential adoptive families, and risks from Sharks’s alcohol/violence justify termination | Court affirmed: best-interest finding not clearly erroneous; adoptability need not be proved by clear-and-convincing evidence; potential harm shown by history of substance use and violence |
| Whether the court improperly discounted Sharks’s recent improvements as “too late” (Prows issue) | Sharks: Court improperly refused to weigh recent compliance and improvements | DHS/Court: Court considered whole case history and weighed recent improvements against long-term noncompliance | Court affirmed: unlike Prows, the court here considered and weighed recent efforts but found them insufficient given the full record |
| Whether sufficient statutory ground existed under “other factors” (§ 9-27-341(b)(3)(B)(vii)(a)) | Sharks: Record does not show the case-plan issues were unremedied or sufficiently unaddressed to warrant termination | DHS/Court: Subsequent factors (positive alcohol screen, missed screens, arrests, late evaluations, unstable housing) persisted despite services | Court affirmed: clear evidence supports termination under the other-factors ground |
| Whether the trial court erred in crediting DHS witnesses and foster-parent testimony | Sharks: Witnesses did not establish claimed harms and adoptability was overstated | DHS/Court: Credibility determinations favor DHS testimony about risk and adoptability prospects | Court affirmed: appellate review gives deference to trial court credibility findings and did not find clear error |
Key Cases Cited
- Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207 (clear-and-convincing standard for termination)
- Cheney v. Ark. Dep’t of Human Servs., 2012 Ark. App. 209 (de novo review with deference to trial court credibility findings)
- Hamman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295 (likelihood of adoption is to be considered but need not be proven by clear and convincing evidence)
- Caldwell v. Ark. Dep’t of Human Servs., 2016 Ark. App. 144 (caseworker testimony on adoptability can support adoptability finding)
- Prows v. Ark. Dep’t of Health & Human Servs., 102 Ark. App. 205 (court must consider recent improvements; distinguishing precedent where court excluded consideration)