Swangel v. Ark. Dep't of Human Servs.
547 S.W.3d 111
Ark. Ct. App.2018Background
- DHS removed J.S., R.M., and A.R. after all three children tested positive for methamphetamine and Donna had a long history of methamphetamine use during the ~2-year case.
- Donna did not dispute statutory grounds for termination but contested best interest and ICWA compliance; she also argued DHS never filed/served a termination petition as to R.M.
- The circuit court found repeated positive drug tests (28 of 37 positive for methamphetamine), unstable living conditions (eviction notice, lack of electricity), inability to meet children’s basic needs, and ongoing relationships with drug-using partners.
- The court credited testimony that prospective adoptive placement (Estes) was willing and that no barriers to adoption were foreseeable; legal father Joey Musgrove asserted R.M. should live with him in Florida.
- The circuit court had earlier set adoption/termination as the permanency goal; Donna did not appeal that permanency-plan order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over R.M. | Donna: DHS never filed/served termination petition re: R.M.; court lacked jurisdiction | DHS/State: termination order encompassed children; court proceeded appropriately | Not separately resolved on jurisdiction as a basis for reversal; overall termination affirmed |
| Best interest of the children | Donna: termination was "draconian," two children placed with an aunt, continued contact and relative placement would serve stability | DHS: mother's persistent meth use, instability, and risk of harm make termination necessary for permanency/adoption | Affirmed — clear-and-convincing evidence supported best-interest finding (risk of harm, likelihood of adoption) |
| Weight of relative placement | Donna: relative placement and bonds weigh against termination | DHS: relative placement not controlling; public policy can favor termination/adoption over permanent relative placement | Court rejected argument; relative placement did not undermine best-interest finding |
| ICWA compliance / expert testimony | Donna: ICWA requires expert testimony showing continued custody likely to cause serious harm | DHS: expert-compliance issue not preserved below | Not preserved — appellate review barred because no contemporaneous objection to expert qualifications in circuit court |
Key Cases Cited
- Miller v. Ark. Dep't of Human Servs., 492 S.W.3d 113 (Ark. Ct. App.) (standard for termination: grounds by clear-and-convincing evidence and best-interest factors)
- Furnish v. Ark. Dep't of Human Servs., 529 S.W.3d 684 (Ark. Ct. App.) (continuing illegal drug use supports risk-of-harm finding)
- White v. Ark. Dep't of Human Servs., 530 S.W.3d 402 (Ark. Ct. App.) (drug-related issues can support termination even with relative placement)
- Bunch v. Ark. Dep't of Human Servs., 523 S.W.3d 913 (Ark. Ct. App.) (relative placement and bonding can counsel against termination where stability exists)
- McElwee v. Ark. Dep't of Human Servs., 489 S.W.3d 704 (Ark. Ct. App.) (public policy may prefer termination and adoption over permanent relative placement)
- Harbin v. Ark. Dep't of Human Servs., 451 S.W.3d 231 (Ark. Ct. App.) (past behavior may predict future harm)
- L.W. v. Ark. Dep't of Human Servs., 380 S.W.3d 489 (Ark. Ct. App.) (court need not find actual harm; potential harm viewed forward-looking)
- Johnson v. Ark. Dep't of Human Servs., 481 S.W.3d 463 (Ark. Ct. App.) (ICWA expert-evidence challenges are evidentiary and must be raised in circuit court)
- Howell v. Ark. Dep't of Human Servs., 517 S.W.3d 431 (Ark. Ct. App.) (refusing to overrule Johnson; panel bound by requirement to preserve ICWA expert objections)