Edward HOWERTON, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Child, Appellees
No. CV-16-561
Court of Appeals of Arkansas, DIVISIONS III & IV.
Opinion Delivered: November 16, 2016
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s termination of his parental rights to G.E., born 9/12/14. On appeal, appellant argues that the circuit court erred in terminating his parental rights to G.E. because his rights were “nonexisting.” We reverse.
On September 26, 2014, appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of G.E. due to her birth to an incarcerated mother.1 Brandon Edgar was listed as G.E.’s putative father in the petition. The circuit court entered an order granting emergency custody on September 29, 2014. Appellant was not listed as a party in the petition or the order.
Following a hearing on September 30, 2014, the circuit court entered a probable-cause order on the same date noting that the parties had stipulated that probable cause existed at the time of removal and continued to exist. A determination of Edgar’s paternity was reserved therein for adjudication and he was listed in the order as G.E.’s “LEGAL/PUTATIVE FATHER[.]”2 Appellant still was not listed as a party.
An agreed adjudication order was entered on November 10, 2014. In that order, Edgar’s status was changed to that of the putative father only, and appellant was added as G.E.’s “LEGAL FATHER[.]” DHS was ordered “to amend the pleadings to make Mr. Howerton a party to this matter.”
A review order was entered on November 25, 2014, after a hearing on the same date. It stated that appellant was incarcerated in Tucker, Arkansas. Both appellant and Edgar were ordered to comply with the case plan and the orders of the circuit court.
DHS filed a motion to terminate reunification services to appellant on December 22, 2014. It alleged therein that appellant had subjected G.E. to aggravated circumstances where an older sibling of G.E. was subjected to sexual abuse by appellant.3 It
The circuit court entered a review-and-no-reunification-services order on April 6, 2015, following a March 12, 2015 hearing. It noted that appellant was G.E.’s legal father “by virtue of his continued marriage” to G.E.’s mother and granted DHS’s no-reunification-services motion finding that G.E. hаd been subjected to aggravated circumstances in that there was little likelihood of successful reunification with appellant based on his thirty-year sentence for his rape conviction.6
Following an October 19, 2015 hearing, a permanency-planning order was entered on January 19, 2015, authorizing a plan of adoption and a petition for termination of parental rights from DHS. Though appellant was referenced as the legal father, the circuit court stated therein that “[h]aving set the goal to be adoption, the Court finds that Brandon Edgar is indigent; the Court finds the putative parent has established significant contacts with the juvenile such that parental rights [h]ave attached.” It stated that appellant “shall be removed as a party to this case as he testified today he is not the biological father of the child.” Appellant was denied any contact with G.E., and Edgar was granted supervised visitation.
DHS filed a petition for termination of parental rights on November 18, 2015, listing appellant as G.E.’s legal father and Edgar as her putative father. It alleged the following grounds for termination of appellant’s rights:
- That G.E. had been adjudicated dependent-neglected and continued out of appellant’s custody for a period of twelve months and the conditions necessitating removal had not been remedied despite a meaningful effort of DHS on account of appellant’s conviction and sentence of thirty years’ imprisonment for rape;7
- That G.E. had lived outside of appellant’s home for a period of twelve months and appellant had willfully failed to provide significant meaningful support or to maintain meaningful contact with G.E. on account of appellant having been imprisoned for the duration of G.E.’s life;8
- That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placing G.E. in appellant’s custody is contrary to G.E.’s health, safety, or welfare and that, despite the offer of appropriate family services, appellant has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate his circumstances that prevent the placement of G.E. in his custody on account of his imprisonment for a sentence of thirty years;9
- That appellant was sentenced in a criminal proceeding for a period of time that would constitute a substantial period of G.E.’s life on account of his thirty-year prison sentence;10
- That appellant, as the presumptive legal father, was not G.E.’s biological father and her welfare could best be served by terminating appellant’s parental rights as the presumptive legal father;11 and
- That appellant had subjected G.E. to aggravated circumstances where the circuit court determined on March 12, 2015, that there was little likelihood that services to appellant would result in successful reunification “due to Edward Howertons [sic] conviction for rape of an 11 year old victim and 8 year old victim. Both of which are [G.E.’s] siblings.”12,13
At the beginning of the hearing, the following exchange ensued:
ATTORNEY FOR MOTHER: Your Honor, I wanted to point out one thing. I don’t know if it will make a difference in this hearing, but I found it odd, so you may too. The permanency planning order that was entered on January thе 19th of 2006, paragraph 8, specifically stated and found that Mr. Howerton shall be removed as a party to this case. As he testified today, he is not the biological father of the child. So I am not understanding exactly why Mr. Howerton, at this point not being a party in this matter, would be entitled to pursue any rights whatsoever or to defend himself against termination of parental rights to which he does not have.
CIRCUIT COURT: Well, I vaguely remember the hearing, and I think that the Court would have been correct to make a ruling that based upon his testimony and the time of his incarceration and thе lack of access for the purposes of intercourse and conception that he couldn’t be the biological father supporting his testimony that, in fact, he was not the biological father.
I don’t have a problem with all that. I don’t remember saying—and I may
ATTORNEY FOR MOTHER: Well, it was my understanding that Mr. Edgar was found to be the legal father. And to me, I—
CIRCUIT COURT: He was found to be the biological father.
ATTORNEY AD LITEM: Correct.
ATTORNEY FOR MOTHER: Not ever made to be the legal father—
CIRCUIT COURT: I didn’t find that he was. Now, if there’s an order that said so, there was some—in my review, there was some—and I didn’t focus on that particular issue, but my recollection is, from my review, that he said he was father. There was some testimony about access. And he eventually got around to doing some DNA testing that said he was the biological father or maybe his name’s on the birth certificate. I don’t remember that part. I may have it confused with another case. But I didn’t see that we got to the part where we established and maybe we did.
ATTORNEY FOR MOTHER: I’ll look for that.
ATTORNEY FOR DHS: Your Honor, the Department has submitted to the Court before a paternity test showing that Brandon Edgar was the biological father.
CIRCUIT COURT: Yeah. I’ve got that in my notes. I mean, I remember making that finding. I just didn’t know what we—
ATTORNEY FOR DHS: I think the hangup was at the time of the—
CIRCUIT COURT: Do you have a birth certificate with his name on it?
ATTORNEY FOR DHS: No, Your Honor, I don’t.
CIRCUIT COURT: Because that would—
ATTORNEY FOR DHS: I’m being told we submitted it. But I cannot remember doing so.
CIRCUIT COURT: Okay. Well, if there’s a birth certificate with his name on it, then by operation of law, he has rights that the Court has to deal with today. You think it’s been оffered as an exhibit already? Even if I didn’t make a finding of paternity—if y’all can help me, just take a minute and figure that out. Birth certificate of the juvenile naming Brandon Edgar as the biological father. Paternity established 10/19/15 is my note.
Testimony at the hearing was as follows.
Holly Johnson, family services worker for DHS, testified in pertinent part that appellant is the legal father of G.E. due to her mother being married to appellant at the time G.E. was conceived. However, Edgar was the putative father who was at that time the biological father.
In the midst of Johnson’s testimony, appellant’s attorney questioned why the court was “terminating on [his] client” when Edgar was the legal father and the biological father, to which the attorney for DHS responded that it was because appellant was married to G.E.’s mother when G.E. was conceived, making him a legal father. Appellant’s attorney sought clarification on whether the court had just “made a finding that the other gentlemen
Following Johnson’s testimony, appellant’s counsel moved for a directed verdict, arguing lack of sufficiency on each ground. Of pertinence to this court was his argument regarding the parent-sentenced-to-a-substantial-period-of-the-juvenile’s-life and presumptive-legal-father-not-biological-father grounds in which he argued that appellant was not a parent because the circuit court made a finding that Edgar was G.E.’s biological and legal father and G.E. “can’t have two legal fathers.” He argued that onсe Edgar was found to be G.E’s legal father, appellant was “divested” of any parental rights and “[had] no parental rights to be terminated.” The circuit court questioned why the parties were “going through this hearing” and why appellant’s counsel did not file a motion at the beginning to have appellant removed as a party. He responded that he was representing his client as appointed. His motion for directed verdict was denied.
Of pertinence, appellant then testified that he was not G.E.’s biological father and did not believe he could be hеr father because he had been incarcerated since April 6, 2012. He did not have conjugal visits with G.E.’s mother. Following appellant’s testimony, he renewed his motion for directed verdict. The motion was denied.
Appellant’s counsel then reiterated his argument stating that “[i]f Mr. Edgar has been found, factually, to be the biological father and legally to be legal father, then my client is not the legal father. I don’t think that you can have two legal fathers, so his rights shouldn’t be terminated because he has not [sic] rights to be terminated.” The circuit court responded:
For the record, the Court found a copy of the birth certificate which has previously been filed as an exhibit in this case. It was DHS No. 1 on September 24th, 2015, showing Brandon Edgar to be the biological father of G.E. By operation of law, that’ll make Mr. Edgar a parent to her. That does not change the legal rights that Mr. Howerton has by virtue of the marriage to the mother of the child.
The circuit court then terminated appellant’s parental rights. Its order terminating appellant’s parental rights was entered on March 28, 2016. Therein, the circuit court stated that “Edward Howerton was marriеd to Samantha Howerton at the time of [G.E.’s] birth. It was determined by this court through evidence of a birth certificate with Brandon Edgar’s name included as father and evidence of genetic testing that Brandon Edgar is the biological father of [G.E.]” This timely appeal followed.
This court reviews termination orders de novo.14 According to Arkansas Code Annotated section 9-27-303, 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 § 9-10-120 or who has been found by a court of competent jurisdiction to be the biological father of the juvenile[.]”15 We
A plain reading of the statute means that a parent can be biological, or by adoption, or by a man who is married to a biological mother at the time of conception or by a man who has signed an acknowledgement of paternity, or by being found by a court of competent jurisdiction to be the biological father. In this case, though initially not included, appellant was eventually added as a party and deemed G.E.’s legal father because she was conceived while appellant was married to her mother. Though Edgar was initially named a legal/putative father and then only a putative father, the circuit court eventually deemed him to be G.E.’s legal father on account of his acknowledged paternity from being listed as the legal father on G.E.’s birth certificate and on account of being found to be G.E.’s biological father through a paternity test. Accordingly, the circuit court gave G.E. two legal fathers. In reference to establishing Edgar’s paternity, it stated “If that means I made two legal fathers, that’s what I did.”
The circuit court gave no legal basis to support its finding that G.E. had or could have two legal fathers. A review of Arkansas statutes provides no definition of a “legal father.”18 Likewise, a review of Arkansas law reveals no basis for a child having two legal fathers, and there is no case directly on point addressing whether a child can have more than one legal father. A review of case law from other jurisdictions shows a consensus that a child can have only one legal father.19
Notes
Once the circuit court found that Edgar was G.E.’s legal father, it changed appellant’s status.20 Appellant could not be G.E.’s legal father—presumptive or otherwise—once the circuit court found that Edgar was G.E.’s legal father. By finding Edgar to be G.E.’s legal father, the circuit court effectively divested appellant of all parental rights to G.E.; therefore, appellant had no rights to G.E. that the circuit court could terminate. We note that an alternative ruling would mean that if appellant were to have another child and became subject to a petition for termination of his parental rights to that child, this termination could be used to justify termination in that case.21 We hold that the circuit court’s ruling terminating appellant’s parental rights to G.E. was clearly erroneous because he had no rights. We reverse.
Reversed.
Whiteaker, Hixson and Hoofman, JJ., agree.
Gruber and Vaught, JJ., dissent.
Larry D. Vaught, Judge, dissenting.
I dissent from the majority’s holding that Arkansas Code Annotated section 9-27-303 (40) (Repl. 2015), which defines the term “parent” as used throughout the juvenile code, allows only one man to be deemed a “parent” for each child in a dependency-neglect case. I fear that the majority’s approach prioritizes the interests of adult defendants at the expense of the juveniles’ need for permanency.
Section 9-27-341(a)(2) states that termination may only be used in order to clear juveniles for permanent placement. Section 9-27-341(a)(3) states that it is the intent of the legislature that termination be used to provide permanency for the juvenile. In order to accomplish that goal, all outstanding rights to the child that may be claimed now or in the future must be conclusively disposed of. Section 9-27-303(40) establishes that certain persons are automatically deemed to have parental rights as a matter of law. It defines “parent” as “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.”
Nowhere in the juvenile code or the caselaw does it state that only one man can be recognized as a parent for each child in a dependency-neglect case. While there can certainly be only one biological father, the code recognizes that there are alternative definitions of a parent and establishes five different avenues by which а person may be legally deemed a parent. Ark. Code Ann. § 9-27-303(40). I believe the circuit court was correct in recognizing that section 9-27-303(40) vests parental rights in anyone who meets the statutory definition of a parent and that termination is the only mechanism for extinguishing those rights.
I mention the presumption of legitimacy for two reasons. First, the majority appears to be applying section 16-43-901 to thе case at bar and interpreting the circuit court’s findings as having sufficiently rebutted the presumption of G.E.’s legitimacy. Such an approach ignores the fact that section 9-27-303(40)’s definition of a “parent” addresses a separate and distinct area of the law. Legitimacy is not the issue in a dependency-neglect case. The aim of section 9-27-303(40) is to clear a juvenile for permanent placement. As such, the definition is not framed as a rebuttable presumption but instead establishes that anyone who meets the definition is a “parent” under the juvenilе code.
Second, the presumption of legitimacy illustrates the legislature’s wisdom in broadly defining “parent” in section 9-27-303(40). As evidenced by the presumption, both the mother’s husband and the child’s biological father may attempt to assert parental rights to the child. Section 9-27-303(40) recognizes this fact by empowering the circuit court to conclusively address the legal rights of everyone who falls within the statutory definition of a “parent.”
Clearly, it is factually possible that multiple individuals may simultaneously meet the statutory definition of a “parent.” For example, one man mаy be married to the mother at the time of the birth, while a second man acknowledges paternity and signs the birth certificate, and a third man is found by a court of competent jurisdiction to be the biological father. The majority’s approach assumes that, once the third man is found to be the biological father, such a finding will automatically divest the first two men of parental rights. This approach ignores the fact that those two men continue to meet the statutory definition of a “parent” under section 9-27-303(40). The majority has essentially invented an entirely new рrocedure for changing a person’s status from “parent” to “nonparent,” wholly unsanctioned by the juvenile code. The code establishes termination of parental rights, either voluntarily or involuntarily, pursuant to section 9-27-341, as the only legal mechanism for a circuit court to extinguish the legal rights of a person meeting the statutory definition of a “parent.”
Arkansas Code Annotated section 9-27-102 mandates that “the best interests of the children must be paramount and shall have precedence at every stage of juvenile court proceedings.” Here, termination of Howertоn’s parental rights provided G.E. with a level of permanency unavailable otherwise. The majority focuses on the prejudice that Howerton might suffer in the future as a result of being subject to an involuntary termination.2 Our legislature has made clear, however, that the parent’s best interest and the child’s best interest are not on equal footing; courts are unequivocally directed to favor the child’s best interest. Ark. Code Ann. § 9-27-102. Therefore, I would affirm the circuit court’s termination of Howerton’s parental rights as being necessary to conclusively clear G.E. for adoption and provide her with true permanency.
Gruber, J., joins.