Smithee v. Department of Human Services
2015 Ark. App. 506
Ark. Ct. App.2015Background
- Emily Smithee’s parental rights to her son E.S. (born Nov. 27, 2013) were terminated by the Clay County Circuit Court; she appealed.
- DHS relied on two statutory grounds: (1) prior involuntary termination of parental rights to another child (J.S.), and (2) "aggravated circumstances" (a judicial determination that services were unlikely to achieve reunification).
- Smithee previously voluntarily relinquished rights to two children (H.H. and A.H.) and had parental rights involuntarily terminated to J.S. in April 2013 based on aggravated-circumstances findings.
- E.S. was removed shortly after birth due to Smithee’s failure to follow medical instructions and concerns about her ability to care for a medically fragile infant; DHS filed for termination July 11, 2014.
- The circuit court entered an order terminating reunification services after an August 2014 hearing and ultimately terminated Smithee’s rights to E.S. in December 2014.
- On appeal Smithee argued (1) J.S. could not be a "sibling" because his parental-termination predated E.S.’s birth, and (2) DHS relied at trial on an aggravated-circumstances finding not alleged in its petition.
Issues
| Issue | Plaintiff's Argument (Smithee) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether a prior involuntary termination (to J.S.) can support termination of Smithee’s rights to E.S. | A prior termination that occurred before E.S.’s birth divests legal relationship so J.S. is not a sibling for § 9-27-341(b)(3)(B)(ix)(a)(4) purpose. | DHS relied on certified order showing the involuntary termination of J.S.; that termination is admissible evidence supporting the statutory ground. | Not preserved for appeal: Smithee did not raise this issue below, so appellate court declined to consider it. |
| Whether the court relied on an aggravated-circumstances ground not pled in DHS’s petition | Petition alleged only that there was "little likelihood of successful reunification," not that a judge had made the specific judicial determination about services before filing. | Petition referenced the statutory aggravated-circumstances ground and gave notice; a judicial determination that services were unlikely was made at the August 2014 no-reunification hearing (after the petition but before termination order). | Court held DHS sufficiently pled the aggravated-circumstances ground and the later judicial finding satisfied the statutory requirement; reliance on that ground was proper. |
Key Cases Cited
- Camarillo-Cox v. Arkansas Dep’t of Human Servs., 360 Ark. 340 (2005) (termination requires clear and convincing proof)
- Strickland v. Arkansas Dep’t of Human Servs., 103 Ark. App. 193 (2008) (trial-court findings not reversed unless clearly erroneous)
- Samuels v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 527 (2014) (appellate de novo review of termination orders)
- Belue v. Arkansas Dep’t of Human Servs., 104 Ark. App. 139 (2008) (parental rights are fundamental but may be terminated to protect child’s welfare)
- Jackson v. Arkansas Dep’t of Human Servs., 2013 Ark. App. 411 (2013) (due-process notice requirement in termination proceedings; alleging statutory ground and informing parent of supporting facts satisfies notice)
- Miller v. Arkansas Office of Child Support Enforcement, 2015 Ark. App. 188 (2015) (issues not raised below are generally not considered on appeal)
- Kight v. Arkansas Dep’t of Human Servs., 94 Ark. App. 400 (2006) (due process requires notice reasonably calculated to inform parent before termination)