GEORGE BRUMLEY v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND G.B., MINOR CHILD
No. CV-15-156
SUPREME COURT OF ARKANSAS
October 8, 2015
2015 Ark. 356
HOWARD W. BRILL, Chief Justice
Opinion Delivered October 8, 2015. APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. J12-785-3]. HONORABLE STACEY A ZIMMERMAN, JUDGE. AFFIRMED; COURT OF APPEALS OPINION VACATED.
Appellant George Brumley appeals an order of the Washington County Circuit Court terminating his parental rights to his son, G.B., pursuant to Arkansas Code Annotated section
I. Facts
On October 7, 2012, appellee Arkansas Department of Human Services (DHS) received a call from Washington County Deputy Sheriff Eric Bryant, who reported that
That same day, on October 7, 2012, DHS exercised a seventy-two-hour hold on the children because they had been left without a legal caregiver at the time of the removal. DHS filed a petition for emergency custody, and the circuit court placed custody of the children with DHS. The circuit court later entered a probable-cause order finding the children dependent-neglected. Following an adjudication hearing, the court ruled that the children would live with their aunt, Amanda Green, and stated that Brumley could send appropriate letters and could contact his son by phone. The court ordered Brumley to participate in individual counseling, to follow the recommendations of the counselor, to keep counseling appointments, to refrain from using illegal drugs and alcohol, to obtain and maintain stable housing and employment, to maintain housing for himself and the children, and to follow the case plan and court orders.
After a review hearing on May 8, 2013, the circuit court subsequently entered a review order, filed May 9, 2013, and ruled that Brumley had not complied with the court orders and
The case proceeded to a permanency-planning hearing on September 25, 2013. Following the hearing, the circuit court entered an order that same day, finding that Brumley was the child‘s legal father and that he had not complied with all the court orders and the case plan. The circuit court ruled that Brumley remained incarcerated and had minimally participated in reunification services. The circuit court noted that Brumley had participated in parenting classes, life-skills classes, and sobriety classes in prison but that he could not care for the child because of his imprisonment. The court changed the case goal from reunification to adoption.
On October 18, 2013, DHS filed a petition for termination of parental rights, stating the following statutory grounds:
(i) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
. . . . .
(iii) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile‘s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent‘s circumstances that prevent the placement
of the juvenile in the custody of the parent. . . . . .
(iv) The parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile‘s life[.]
At the termination-of-parental-rights hearing on December 13, 2013, Miranda Collins, a DHS caseworker, testified that the child lived with Elizabeth and Lee Francis, his aunt and uncle; that he was in special-education classes; and that the Francises wished to pursue adoption of the child and his sister. Collins testified that Brumley had written letters to his son and had taken parenting classes, but that he had been incarcerated throughout the entirety of the case and had no plans for stable housing or employment upon discharge. She also stated that he had never submitted to a drug screen. She testified that she believed it was in the child‘s best interest to have Brumley‘s rights terminated because she did not “want [him] out in the air about where [he] will be.”
Brumley testified that he had supported his son while in prison by calling him and by sending checks, gifts, and letters. He stated that he had participated in three parenting classes, drug-treatment classes, and PALS, a faith-based program that taught life skills. He testified that he believed that he would reside at his mother‘s house, his sister‘s house, or a halfway house after his release date. On cross-examination, Brumley admitted that he last saw his son in 2007 and that out of nine years of the child‘s life, Brumley had lived with him for only six months.
Following the termination hearing, the circuit court entered an order, filed December 20, 2013, terminating Brumley‘s parental rights and granting DHS the power to consent to adoption. The circuit court‘s ruling was based on two grounds alleged in DHS‘s termination
II. Applicable Law
For the sole point on appeal, Brumley argues that the circuit court erred in terminating his parental rights on two grounds. First, Brumley contends that the circuit court erred in terminating his parental rights on the twelve-month ground and on the subsequent-factors ground because he was incarcerated at the time of the child‘s removal. Second, Brumley argues that the circuit court erred in finding that it was in the child‘s best interest to terminate the father‘s parental rights. DHS and G.B. jointly respond that the circuit court properly terminated parental rights on both statutory grounds and in its best-interest analysis.
Termination of parental rights is an extreme remedy and in derogation of the natural
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep‘t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Arkansas Code Annotated section
A. Ground for Termination
Section
Whether parental rights should be terminated on the imprisonment ground depends on the particular facts and circumstances of each case. See, e.g., Moore v. Ark. Dep‘t of Human Servs., 333 Ark. 288, 969 S.W.2d 186 (1998) (affirming the termination of parental rights based on a twenty-eight-year prison sentence when the child was one year old); Basham v. Ark. Dep‘t of Human Servs., 2015 Ark. App. 243, 459 S.W.3d 824 (affirming the termination of parental rights based on a twenty-year prison sentence when the child was four years old); Hill v. Ark. Dep‘t of Human Servs., 2012 Ark. App. 108, 389 S.W.3d 72 (affirming the
In the instant case, DHS alleged this imprisonment ground in its petition, but the circuit court failed to rule on this ground in its termination order. Nevertheless, we may reach this issue in our de novo review. While our de novo review does not mean that the findings of fact of the circuit court are dismissed out of hand and that the appellate court becomes the surrogate circuit court, it does mean that a complete review of the evidence and the record may take place as part of the appellate review to determine whether the trial court clearly erred either in making a finding of fact or in failing to do so. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). This de novo standard opens the entire record for our review. Conagra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). Moreover, under this standard of review, an appellate court is not constrained by the trial court‘s
Our de novo review of the evidence convinces us that the imprisonment ground warrants termination of Brumley‘s parental rights. The record reveals that the child was born in 2004. At the termination hearing in 2013, after the child had turned nine years old, Brumley testified that he had not seen his child since “probably 2007.” Brumley further testified that his son had lived with him for only six months. In its December 20, 2013 termination order, the circuit court stated that “George Brumley has remained incarcerated throughout the case. He has not seen [his child] since 2007, when he went to prison.” The court further stated that Brumley “has only resided with his son [six] months back in 2006. [The child] does not have a relationship with his father.” While incarceration is not, in and of itself, conclusive on the termination issue, imprisonment does not toll a parent‘s responsibilities toward his or her children. Linker-Flores v. Ark. Dep‘t of Human Servs., 364 Ark. 224, 217 S.W.3d 107 (2005). Based on our de novo review of the record, we conclude
Because DHS is required to prove only one statutory ground for termination, see Arkansas Code Annotated section
B. Best-Interest Analysis
Brumley further challenges the circuit court‘s finding that termination of his parental rights was in G.B.‘s best interest. The two factors to consider in determining best interest are the likelihood of adoption and potential harm caused by returning the child to the custody of the parent.
Next, Brumley challenges the circuit court‘s finding of potential harm. He claims that the record is devoid of any potential harm to his son that would prevent him from seeking custody and placement upon his release from incarceration. The potential-harm analysis must be conducted in broad terms, including the harm the child suffers from the lack of stability in a permanent home. See Lunon v. Ark. Dep‘t of Human Servs., 2010 Ark. App. 647.
In the instant case, Collins testified that Brumley remained incarcerated and, as a result,
Affirmed; court of appeals opinion vacated.
WOOD, J., and Special Justice ROBERT S. SHAFER concur.
HART, J., dissents.
WYNNE, J., not participating.
RHONDA K. WOOD, Justice, concurring. I join the majority opinion, but write separately to address the circuit court‘s decision to terminate on the “subsequent factors” ground. I would affirm on this statutory ground as well as on the incarceration ground.
In Arkansas, we have a very complex statutory scheme for how courts handle dependency-neglect cases.
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile‘s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or
indifference to remedy the subsequent issues or factors or rehabilitate the parent‘s circumstances that prevent the placement of the juvenile in the custody of the parent.
- subsequent issues arose after the original petition was filed that demonstrate it is contrary to the juvenile‘s health, safety, or welfare to place the child with that parent;
- appropriate family services were offered; and
- parent is indifferent or lacks the capacity to remedy the
- subsequent factors or
- rehabilitate the parent‘s circumstances that prevent placement of the juvenile with that parent.
Turning to the facts of the present case, Brumley is correct in his argument that incarceration alone cannot be a subsequent factor because his incarceration predated the dependency-neglect petition. However, this court has stated repeatedly for decades that imprisonment does not toll a parent‘s responsibilities to his or her child. See Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976). Here, there is ample evidence that the subsequent-factors statutory ground applies to this case.
First, subsequent to the petition, the court specifically ordered Brumley to accomplish certain goals in order to provide a home for his child. The court ordered him to obtain individual counseling, not use illegal drugs or alcohol, obtain and maintain stable housing and employment adequate for him and his child, maintain a safe home for him and his child, complete twelve hours of parenting classes, demonstrate an ability to protect his child and keep him safe from harm, and follow the case plan and court orders. Brumley failed to meet these requirements, and this failure to comply with court orders is a subsequent factor that prevented the court from returning the juvenile to his custody. When a court orders a child
Second, the court must look to whether the parent‘s failure to remedy the subsequent factors occurred despite appropriate family services being offered. While the record is not specific about the precise services offered, the circuit court made repeated findings at multiple hearings that the Department of Human Services had provided reasonable family services to Brumley. Brumley failed to object when the court made this finding and did not argue at termination that reasonable family services were not provided. He does not raise this issue until his appellant‘s brief, and we will not entertain an argument not raised to the circuit court. Weatherspoon v. Ark. Dep‘t of Human Servs., 2013 Ark. App. 104.
Third, Brumley lacked the capacity to remedy the subsequent factors because he remained incarcerated and could not provide a home for his child. In addition, he was indifferent to the circumstances because he never asked the court for custody. Rather, he asked for time, after his release from prison, to get to know his son, manifesting an indifference to obtaining permanent custody and providing his child a permanent home.
The goal of dependency-neglect cases is to obtain a permanent, safe home for the involved children.
Special Justice ROBERT S. SHAFER joins.
JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent because conspicuously absent from the majority‘s opinion is a frank discussion of what should be the most pivotal fact in this case—George Brumley had nothing to do with the removal of his child, G.B., from the custody of the child‘s mother. Conversely, the record shows that Brumley, although incarcerated, was doing everything he could to liberate G.B. from ADHS custody. After ADHS intervention, caseworker Miranda Collins admitted that she had never contacted Brumley in prison, much less provided, or even offered reunification services.
In my view, the majority‘s reliance on the fact that Brumley was incarcerated as its sole statutory ground for termination is unsound. In Crawford v. Arkansas Department of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997), this court expressly stated that imprisonment is “not conclusive on the termination issue.” Id. at 157, 951 S.W.2d at 313. Today, the majority is apparently saying that any prison sentence is sufficient ground for termination of parental rights; the requirement that the sentence constitutes a significant amount of time in a child‘s life, has ceased to have any meaning. The majority‘s conclusion that whether a prison sentence constitutes a significant amount of time in a child‘s life now apparently hinges on the amount of prison time that a parent was originally sentenced to, not how much time remained before he or she could assume custodial responsibility for his child. None of the cases support this extraordinary change in the law. In Moore v. Arkansas Department of Human Services, 333 Ark. 288, 969 S.W.2d 186 (1998), the father‘s parental rights were terminated after he had received a 28-year prison sentence for battery of his then five-month-old child who had suffered a fractured skull, fractured ribs, and a fractured upper arm. In Basham v. Arkansas Department of Human Services, 2015 Ark. App. 243, 459 S.W.3d 824, the
Conversely, Brumley is close to the end of his prison sentence, having but six months left before his parole. His disciplinary record is not an impediment to his pending release.
Although not discussed by the majority, Brumley persuasively argues that the other potential statutory grounds are equally unavailing. I agree with Brumley that the circuit court erred in finding that the 12-month-failure-to-remedy ground was a basis for terminating his parental rights because he was not responsible for the conditions that caused ADHS to take custody of G.B. For this ground to apply, at a minimum, he had to contribute to the cause of removal.
I likewise find persuasive Brumley‘s argument that the “subsequent factors” ground does not support the termination of his parental rights because he was incarcerated when G.B. was removed from his mother‘s custody, and he was incarcerated when the termination hearing took place. Accordingly, his incarceration was “known” when G.B. was removed from the custodial parent‘s home and did not arise subsequent to ADHS filing its petition for custody. Further, I agree that the record shows that he did not demonstrate indifference to remedying the situation. He took parenting classes, established paternity, corresponded with the child, and engaged in substance-abuse treatment. All of these efforts were made without ADHS assistance—the caseworker admitted that she had never contacted Brumley during the dependency-neglect case.
While it is true, as Brumley concedes, that he did not have independent housing or employment, he did participate in work release and sent all the money to the G.B.‘s mother before G.B. was taken into ADHS custody, and he has attempted to work with child-support
Assuming, arguendo, that there is a valid statutory ground for terminating Brumley‘s parental rights, the best interest of the child does not dictate that the State of Arkansas impose this extreme solution. At the time of the termination hearing, G.B. was nine-years old. Although he had not resided with his father for a significant period of time, he was aware that he had a father; his mother, Angela Poss, testified that G.B. had a “fascination” with the idea that he had a father. She further testified, and it was not disputed, that Brumley was sending “significant support” for the child earned on work release. Brumley‘s uncontradicted testimony was that he had contacted child-support enforcement and insisted on sending twice what they recommended—$150 per week—to support G.B.
Contrary to the majority opinion, it was also uncontradicted that Brumley had a plan for his child upon Brumley‘s release from prison. Depending on whether he would be allowed to reside with his child, upon release, he planned to either move in with his mother and G.B., or leave the child with his mother and reside either with his sister or in a halfway
What the State is offering G.B. as compensation for these losses is the holy grail of parental-rights terminations: permanency. Or so it seems. While G.B. has been out of his mother‘s home for more than twelve months, the child‘s current placement had been in effect for only eight weeks. Foster mother Elizabeth Francis testified that she was still trying to find medical providers and set up appointments. Francis did testify that she was “wanting to pursue adoption of G.B. and his half sibling, but there is certainly a question as to whether the adoption could be accomplished before Brumley‘s release from prison. To put it mildly, in this case, “permanency” for G.B., or more accurately, the promise of permanency, does not seem to justify preventing G.B. from reuniting with his father and cutting off his relationships with all the members of his extended paternal family.
Dusti Standridge, for appellant.
Tabitha McNulty, for appellee.
The Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.