ALBERT LEE McHENRY and JOYCE C. McHENRY v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN
No. CV-13-644
ARKANSAS COURT OF APPEALS, DIVISION II
December 4, 2013
2013 Ark. App. 711
APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT [NO. JV-11-62], HONORABLE RALPH WILSON, JR., JUDGE, AFFIRMED
Appellants Albert and Joyce McHenry are the paternal grandparents of A.M. (born 7-26-04), C.M. (born 6-29-05), and B.M. (born 2-3-09). The children were removed from the custody of their parents, Calvin and Suzann McHenry, in 2009 and placed with the paternal grandparents. This appeal involves the subsequent termination of appellants’ custodianship of their grandchildren. Their arguments are not preserved for appeal.
The Process
On July 11, 2011, the Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect, alleging that DHS‘s removal of the children from appellants was necessary to protect the children‘s health, safety, and well-being from immediate danger. Specifically, DHS alleged extreme environmental neglect—roaches falling from the ceiling of appellants’ house, trash scattered over the floors, the floors matted with
DHS filed a petition to terminate Calvin and Suzann‘s parental rights on July 17, 2012; the petition also included appellants as defendants for termination of parental rights in their capacity as legal custodians. A hearing on this petition was held on March 27, 2013. When DHS rested, appellants’ attorney stated that he was not making a motion for a directed verdict because it was his understanding the termination statute only applied to the termination of parental rights and did not, in and of itself, create a cause of action to terminate grandparental rights. DHS‘s response was that it desired to dismiss appellants from the case because the children had been removed from appellants’ home more than twelve months ago, the conditions that caused removal from appellants’ home had not been remedied, and there was not any proof that conditions could improve if appellants were given more time. DHS
On April 15, 2013, DHS filed a motion to terminate appellants’ custodianship and to dismiss them as parties to the case or, alternatively, to terminate reunification services to appellants. A hearing on this motion was held on April 29, 2013; when DHS rested, appellants’ counsel moved for a directed verdict, arguing that there was not sufficient evidence to terminate appellants’ custodianship, that it was not in the children‘s best interest to do so, and that there had not been a material change in circumstance proven. This motion was denied; when it was renewed at the close of appellants’ case, it was again denied. The trial court then granted DHS‘s motion to terminate appellants’ custodianship. An order to this effect was filed on May 15, 2013, and appellants filed their notice of appeal the same day.1
The Appeal
On appeal, appellants abandon any sufficiency argument as to the trial court‘s best-interest or material-change findings. Instead, they argue that the trial court terminated a custodianship, but continued to interchange guardianship and custodianship when those two things are different creatures. They also argue that documentation was never presented to the
Even if appellants’ arguments had been preserved, they would still fail. They argue that when none of the parties to the case are clear as to the status of appellants, there is no accurate way to apply the law. Here, though the parties and their counsel used guardianship/custodianship interchangeably, the trial court did not. The order appealed from is styled “Order Terminating the Custodianship of Albert and Joyce McHenry,” and within that order, the trial court found that because appellants are not the parents, they had no parental rights to be terminated, and “their status in this matter is that of legal custodians of the juveniles.” The trial court further found by clear and convincing evidence that the children‘s removal from appellants’ home and the children‘s adjudication as dependent-neglected “constitute[d] a material change in circumstances, and that it [was] not in the best interests of the children that Albert and Joyce McHenry continue as custodians.” The trial court further found that reunification services, including visitation, were not in the children‘s best interest and should be terminated; it also found appellants’ testimony not credible. The trial court never treated appellants’ status as that of guardianship—it clearly was always considered to be a custodianship.
Affirmed.
HIXSON and WOOD, JJ., agree.
Janet Lawrence, for appellants.
Tabitha Baertels McNulty, Office of Policy and Legal Servs., and Chrestman Group, PLLC, by: Keith Chrestman, for appellees.