Sills v. Ark. Dep't of Human Servs.
538 S.W.3d 249
Ark. Ct. App.2018Background
- B.S. born Feb. 5, 2016, tested positive for THC; DHS removed the child from the mother. Father Brett Sills was incarcerated at the time for a probation revocation.
- Sills was declared legal father at probable cause and adjudication hearings but was incarcerated, unrepresented at early stages, and ordered to complete standard services before placement or visitation.
- Sills did not attend or have counsel at several review and permanency-planning hearings; the court changed the goal to adoption and later DHS filed to terminate parental rights of both parents.
- At the termination hearing (May 12, 2017) Sills had counsel and testified that DHS never provided him the case plan, did not communicate with him while incarcerated, and never explored placement with his relatives.
- DHS presented testimony showing the child had been in foster care ~15 months, the foster family sought adoption, and the caseworker believed the child needed permanency; the circuit court found statutory incarceration ground (long sentence) proven and that termination served the child’s best interest.
Issues
| Issue | Plaintiff's Argument (Sills) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Sufficiency of evidence for incarceration ground (Ark. Code Ann. § 9-27-341(b)(3)(B)(viii)) | Sills: only his testimony showed sentence length; evidence insufficient. | DHS: father’s testimony is admissible evidence of sentence length; five-year exposure (parole date) and >15 months already served are a substantial period. | Held: Sills’s testimony sufficed; sentence length (substantial portion of child’s life) proven. |
| Relevance of DHS’s failure to provide services while incarcerated | Sills: DHS’s failure to provide case plan/services violated due process and undermines termination. | DHS: For incarceration-ground terminations, providing services to imprisoned parents is not a prerequisite. | Held: DHS’s lack of services does not defeat the incarceration statutory ground. |
| Best-interest determination (adoptability and potential harm returning to parent) | Sills: No evidence of harm; relatives willing to care for child; only issue is his incarceration. | DHS: Continued uncertainty and “wait-and-see” while child ages causes instability; child is adoptable and bonded to foster family. | Held: Termination was in child’s best interest—permanency outweighs indefinite delay. |
| Due process / appointment of counsel | Sills: Denied meaningful participation and counsel early, impairing defense. | DHS/Court: Sills was named a party, participated in early hearings, later appointed counsel before termination hearing; statutory appointment rules limit early appointment. | Held: No reversible due-process violation found; appointment before termination hearing cured any earlier lack of counsel; court distinguished Tuck but warned DHS to better engage parents. |
Key Cases Cited
- Dade v. Ark. Dep't of Human Servs., 503 S.W.3d 96 (Ark. Ct. App. 2016) (standard of review for termination appeals)
- Edwards v. Ark. Dep't of Human Servs., 480 S.W.3d 215 (Ark. Ct. App. 2016) (other documents may prove sentence length)
- Moses v. Ark. Dep't of Human Servs., 441 S.W.3d 54 (Ark. Ct. App. 2014) (incarceration sufficient ground; services need not be provided while parent is imprisoned)
- Hamman v. Ark. Dep't of Human Servs., 435 S.W.3d 495 (Ark. Ct. App. 2014) (best-interest factors: adoptability and potential harm)
- Knuckles v. Ark. Dep't of Human Servs., 469 S.W.3d 377 (Ark. Ct. App. 2015) (forward-looking potential-harm inquiry)
- Tuck v. Ark. Dep't of Human Servs., 288 S.W.3d 665 (Ark. Ct. App. 2008) (due-process protections and service presumptions in dependency-neglect cases)
- Jefferson v. Ark. Dep't of Human Servs., 158 S.W.3d 129 (Ark. 2004) (failure to appoint counsel at early stages can be harmless if counsel is provided before termination)