Willis v. Ark. Dep't of Human Servs.
538 S.W.3d 842
Ark. Ct. App.2017Background
- DHS filed petitions after (1) M.H. (b. 12/16/2014) was removed June 1, 2015 based on mother’s drug use, arrests, homelessness; father Jonathan Harris was incarcerated at that time; and (2) K.W. (b. 4/8/2016) was removed April 11, 2016 for newborn illegal-substance exposure; mother initially misidentified K.W.’s father as "Rasheed Wilson."
- Jonathan was confirmed as M.H.’s father by DNA; he had periods of incarceration and release, failed to timely contact DHS for services, did not visit the child, and attended few hearings.
- Kelvin Rasheed Willis (corrected name) was located after initial misidentification; he had a significant criminal history, was incarcerated at the time of termination, and DHS found no meaningful contact or rehabilitation efforts.
- DHS filed termination petitions August 22, 2016. Both fathers were represented by counsel by the time of the review and termination hearings; termination hearing held December 2, 2016 (neither father effectively participated in factfinding).
- Trial court terminated parental rights of Jonathan, Rasheed, and the mother, finding clear-and-convincing evidence of statutory grounds under Ark. Code Ann. § 9-27-341(b)(3)(B) (including aggravated circumstances) and that termination was in each child’s best interest; appeals by Jonathan and Rasheed followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of statutory grounds — Jonathan | Jonathan: incarceration/absence ≠ abandonment or aggravated circumstances; DHS didn’t include him in case plan or provide services | DHS: Jonathan was out of jail months, failed to contact or cooperate, didn’t visit; aggravated circumstances shown | Affirmed — aggravated circumstances proven; trial court not clearly erroneous |
| Best interest — Jonathan | Jonathan: DHS did not investigate potential to safely parent; no showing of specific potential harm | DHS: child is adoptable; Jonathan had no contact for prolonged period; forward-looking potential harm supports termination | Affirmed — termination in child’s best interest |
| Sufficiency of statutory grounds & best interest — Rasheed | Rasheed: DHS failed to prove any statutory ground; not offered services; he visited hospital and planned stability post-release | DHS: child born exposed to methadone; Rasheed has lengthy felony history, on suspended sentences, incarcerated, little/no subsequent contact | Affirmed — aggravated circumstances shown; termination in child’s best interest |
| Right to counsel / due process — Rasheed | Rasheed: entitled to appointed counsel at outset and was denied basic due process | DHS/State: father was misidentified by mother, DHS could not locate him; counsel appointed at earliest opportunity once identified; no preserved due-process claim below | Affirmed — no deprivation of right to counsel; due-process claim not preserved |
Key Cases Cited
- Mitchell v. Ark. Dep’t of Human Servs., 430 S.W.3d 851 (Ark. Ct. App. 2013) (standard of review in termination appeals)
- Anderson v. Douglas, 839 S.W.2d 196 (Ark. 1992) (definition of clear and convincing evidence)
- J.T. v. Ark. Dep’t of Human Servs., 947 S.W.2d 761 (Ark. 1997) (appellate review of clear-and-convincing findings)
- Yarborough v. Ark. Dep’t of Human Servs., 240 S.W.3d 626 (Ark. Ct. App. 2006) (clearly erroneous standard explained)
- M.T. v. Ark. Dep’t of Human Servs., 952 S.W.2d 177 (Ark. Ct. App. 1997) (statutory requirement: at least one ground plus best interest)
- Wafford v. Ark. Dep’t of Human Servs., 495 S.W.3d 96 (Ark. Ct. App. 2016) (only one statutory ground needed to terminate)
- Draper v. Ark. Dep’t of Human Servs., 389 S.W.3d 58 (Ark. Ct. App. 2012) (aggravated-circumstances finding does not require proof that meaningful services were provided)
- Ware v. Ark. Dep’t of Human Servs., 503 S.W.3d 874 (Ark. Ct. App. 2016) (potential harm need not be specifically identified; forward-looking analysis)
- Samuels v. Ark. Dep’t of Human Servs., 443 S.W.3d 599 (Ark. Ct. App. 2014) (viewing potential-harm evidence in forward-looking, broad terms)
- Villaros v. Ark. Dep’t of Human Servs., 500 S.W.3d 763 (Ark. Ct. App. 2016) (credibility determinations lie with factfinder)
- Briscoe v. Arkansas Department of Human Services, 912 S.W.2d 425 (Ark. 1996) (failure to appoint counsel may be harmless where counsel later represents parent at termination hearing and can contest evidence)