FRIEDRICH DREHER v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD
No. CV-21-405
ARKANSAS COURT OF APPEALS
February 9, 2022
2022 Ark. App. 64
RITA W. GRUBER, Judge
DIVISION II
Opinion Delivered February 9, 2022
APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63JV-19-295]
HONORABLE ROBERT HERZFELD, JUDGE
REVERSED AND REMANDED
RITA W. GRUBER, Judge
Appellant Friedrich Dreher appeals from an order of the Saline County Circuit Court terminating his parental rights to his child, FD. On appeal, he argues that the Arkansas Department of Human Services (DHS) failed to prove any of the grounds relied on by the circuit court in the termination order because he was never found to be FD’s parent. Both DHS and the attorney ad litem concede error in this case. We reverse and remand.
On October 9, 2019, DHS filed a petition for dependency-neglect alleging that it had exercised a seventy-two-hour hold on FD (03/24/2010), LD (06/25/2013), and MB (08/27/2017). The children were removed from the custody of their mother, Chelsea Bedoy.1 Appellant was identified as FD’s putative father, who has had significant contact with FD and whose name is on the birth certificate. The affidavit of the Arkansas State
On January 3, 2020, the Saline County Circuit Court entered an adjudication order finding the children dependent-neglected and that the children were at a substantial risk of harm as a result of abuse, neglect, and parental unfitness. The order provides that appellant was served with a copy of the petition on October 13, 2019, and states that he is a defendant because he is a putative parent under the Arkansas Juvenile Code as he had significant contact with FD, and his rights as a putative parent had attached. He was not listed as being present at the December 2, 2019 adjudication hearing, but the order requires that appellant participate in DNA testing to establish paternity.
The order set the goal of reunification, and the parents were ordered to submit to random drug screens on request; participate and attend all visitation; schedule and keep all appointments; obtain and maintain a safe, suitable, and appropriate home for themselves and the juveniles; maintain an environment free from illegal substances or other health and safety
On June 15, after a May 15 review hearing, the circuit court ordered that the children remain in DHS custody and continued the goal of reunification with the concurrent goal of fictive-kin placement. The court found that appellant had not complied with the case plan and the court’s orders and was not making progress toward alleviating or mitigating the cause of the out-of-home placement. Appellant was ordered to follow all court orders and the case plan. The circuit court found that DHS had complied with the case plan and had provided services to achieve the goal of reunification. A review hearing was scheduled for August 3.
Following the August 3 hearing, the court entered a review order on August 21. Appellant was not listed as being present at the hearing.2 The court ordered that the children remain in DHS custody and continued the goal of reunification with the concurrent goal of fictive-kin placement. The court found that appellant had not complied with the case plan and court orders and had not had contact with DHS since June 2020. Appellant was
The circuit court entered a permanency-planning order on October 27, changing the goal of the case to adoption with DHS filing a termination petition. The court again found that appellant had not complied with the case plan and orders of the court and had not had contact with DHS since June 2020. It also noted that he was reportedly homeless and unemployed.
DHS filed its petition for termination of parental rights on December 16, seeking termination of Bedoy’s rights to all three juveniles and appellant’s rights as to FD. The petition noted that DNA testing of the putative parent named in the petition for LD was determined not to be the parent and that the putative parent of MB had not provided evidence to the court to establish paternity and no rights as a putative parent had attached. The grounds for termination included (1) failure to remedy; (2) failure to provide support and maintain meaningful contact; (3) subsequent factors; and (4) aggravated circumstances, specifically little likelihood that services to the family would result in reunification.
Appellant requested and was appointed counsel to represent him at the termination hearing. After several continuances, the termination hearing was held May 20, and the court entered a June 10 order terminating his parental rights based on three of the grounds alleged by DHS—failure to remedy, failure to provide meaningful support, and subsequent factors. Appellant filed a timely notice of appeal on June 16, 2021.
Pursuant to
Termination-of-parental-rights cases are reviewed de novo. Wright v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 263, at 9, 576 S.W.3d 537, 543. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id. Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. As with all issues when addressing child placement, the appellate court affords heightened
Appellant argues that the termination decision must be reversed because DHS failed to prove he is FD’s parent and thus failed to prove an essential element as to each ground on which the termination was granted. “Parent” means a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has signed an acknowledgment of paternity pursuant to section 9-10-120 or who has been found by a court of competent jurisdiction to be the biological father of the juvenile.
Although DHS pled four grounds in its petition to terminate parental rights, the circuit court found that DHS had established three of the grounds. These included
In Earls, DNA testing in a dependency-neglect proceeding revealed that Earls was the biological father to twins. The circuit court later appointed legal counsel to represent him; however, he was consistently recognized as a putative father, including in DHS’s petition to terminate his parental rights. At the termination hearing, the circuit court stated that Earls’s status as a parent needed to be addressed. Although there was a discussion regarding his status, no order was entered finding him to be the parent. Earls was listed as the putative father in the order terminating his parental rights. We affirmed the termination, but our supreme court reversed and remanded on a petition for review, holding that the record did not demonstrate that Earls’s legal status “as a biological parent was established to apply to the twelve-month time period described in the statute.” Earls, 2017 Ark. 171, at 11, 518 S.W.3d at 88. The supreme court concluded that Earls’s rights had not attached to
In Northcross, the circuit court ordered the father to submit to DNA testing and to establish paternity. In an amended termination petition, DHS asserted that that DNA testing revealed that Northcross was the biological father; he had been appointed counsel at the permanency-planning hearing; and he had sufficient contacts with the children for parental rights to attach. DHS asked for a specific finding whether parental rights had attached, and if so, requested that those rights be terminated. The termination order referred to Northcross as a putative father. Relying on Earls, we reversed the termination order, holding that Northcross’s rights could not be terminated without a finding establishing his status as a parent. We stated, “This court cannot make a finding regarding paternity when the circuit court deliberately did not do so.” Northcross, 2018 Ark. App. 320, at 13, 550 S.W.3d at 925 (referring to circuit court’s having reopened the hearing to comment that Northcross had not petitioned to establish paternity).
In addition to the cases cited by appellant, this court also reversed and remanded a termination in Burks v. Arkansas Department of Human Services, 2021 Ark. App. 309, at 11, 634 S.W.3d 527, at 533. There, we stated that the circuit court made Burks’s legal status an issue but failed to resolve the matter before terminating his parental rights. We noted that pursuant to supreme court precedent in Earls, the circuit court was required to make a specific finding that Burks is the parent before terminating his rights. Id. See also Tovias v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 228, 575 S.W.3d 621 (reversing and remanding due to DHS’s failure to establish that Tovias was a parent under statute where, although
In the present case, appellant was identified as the putative parent of FD at the outset of the case. The petition for dependency-neglect identified appellant as the putative parent of FD who had significant contacts with FD and whose name appeared on the birth certificate. Appellant was listed as “parent” in the caption of the pleadings, which was the same as the other defendants, including Bedoy and the putative fathers of the other children. In the probable-cause order, the court identified appellant as “putative father” and ordered him to establish paternity through DNA testing. The adjudication order provided that “because [appellant] is a putative parent for the purposes of the Arkansas Juvenile Code as he had significant contact with the juvenile [FD], his rights as a putative parent have attached.” It again ordered that appellant participate in DNA testing to establish paternity. In the August 21, 2020 review order, the court addressed DNA results of one putative father, indicating that DNA testing revealed the putative father was not the biological father and ordered that he be removed from the case. The petition for termination referred to appellant as the parent and father. The order terminating Bedoy’s rights also identified appellant as father and stated that he requested counsel be appointed. Counsel was appointed, and termination as to appellant was bifurcated and continued. Finally, the order terminating appellant’s parental rights found appellant to be a “putative parent” only whose
At the May 20, 2021 termination hearing, the court asked if appellant wanted a DNA test, and his counsel stated that he admits that he is FD’s father. However, at no point did the circuit court make a finding that appellant was a parent for purposes of the termination process. Although appellant’s counsel stated at the termination hearing that he admits he is FD’s father, case law indicates that “a lay person’s reference to himself as a father—or even a DNA test showing a 99.9% probability that a man is the biological father of a child—is insufficient to establish ‘parent’ status for purposes of the termination process until and unless there is an express finding by the circuit court that the man is, in fact, a parent.” Terry v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 591, at 8, 591 S.W.3d 824, 829 (additional emphasis added) (citing Northcross v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 320, 550 S.W.3d 919; Earls v. Ark. Dep’t of Hum. Servs., 2017 Ark. 171, 518 S.W.3d 81).
Each of the grounds relied on by the circuit court to terminate appellant’s rights to FD requires DHS to prove he is a parent. For termination purposes, “parent” means a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has signed an acknowledgment of paternity pursuant to section 9-10-120 or who has been found by a court of competent jurisdiction to be the biological father of the juvenile.
Reversed and remanded.
VAUGHT and MURPHY, JJ., agree.
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.
Andrew Firth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor child.