King v. Ark. Dep't of Human Servs. & Minor Child
King v. Ark. Dep't of Human Servs. & Minor Child
Opinion of the Court
Appellant James King appeals the March 30, 2018 termination of his parental rights (TPR) with respect to his minor son, T.K., entered by the Washington County Circuit Court. King argues that the circuit court (1) erred in finding statutory grounds to support TPR; (2) erred in finding that TPR was in T.K.'s best interest because it incorrectly analyzed the potential harm; and (3) committed reversible error when it did not file the TPR order until fifty-eight days after the hearing-twenty-eight days beyond the statutory requirement. We affirm.
I. Facts and Procedural History
The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on eight-year-old W.K. and seven-year-old T.K. (half-brothers) on October 24, 2016, removing them from the custody of their mother, Teilor Lybrand, after she was arrested on a warrant for child neglect.
King was identified as T.K.'s putative father at the time of removal, and it was discovered that he was incarcerated in the Arkansas Department of Correction. King's history with DHS dates to 2009 when a true finding was made against him for shaking a child age three or younger and causing internal injuries and bone fracture-the victim in that incident was T.K. DHS records indicate that King was implicated in a total of five reports to the hotline that ultimately resulted in three true findings.
On November 2, 2016, the circuit court held a probable-cause hearing and found that probable cause to exercise emergency custody of T.K. existed and continued to exist. King was not present for that hearing. The first part of the adjudication hearing occurred on December 13, 2016, and concluded on January 20, 2017. The circuit court found T.K. dependent-neglected as a result of neglect and parental unfitness. King did not appear at the adjudication hearing although he was served with the summons, petition, and notice of the hearing.
On May 25, 2017, the circuit court held a review hearing that King did attend. An acknowledgement of paternity of T.K. was entered into the record, and the circuit court found that King was not in compliance with the case plan and court orders. A permanency-planning hearing was held on October 5, 2017, and the goal of the case was changed to adoption. King was present at the hearing, and the circuit court appointed him an attorney. In addition, the circuit court found that King still was not in compliance with the case plan and court orders and that he was making only "minimal progress."
DHS filed a TPR petition on December 29, 2017, collectively against Lybrand, Whittmore, and King, with respect to W.K. and T.K., alleging Ark. Code. Ann. § 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017)-the subsequent-factors ground:
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in the custody of the parents is contrary to the juveniles' health, safety or welfare and that despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parents' circumstances which prevent the placement of the juveniles in the custody of the parents.
The TPR petition also provided from the permanency-planning order, specifically with respect to King:
The Court also found that "James King has not complied with all the court orders and the case plan. Specifically-Mr. King is not in a situation where he can provide what these boys need. He cannot meet the needs of both children, or even the needs of [T.K.]. Mr. King has not demonstrated that he can maintain stability. Mr. King has not been in compliance once in this case." Mr. King did not begin to participate in any services offered by the Department until sometime after the Review Hearing, held before this Court on May 25, 2017. At that Hearing, the Court found that "Mr. King has not availed himself to this Court or the Department. He has not participated in services." It should be noted that Mr. King did not participate in services due to his being incarcerated *230at the Arkansas Department of Correction for Domestic Battery 2nd, with [T.K.] as the victim of that crime. Mr. King is currently on parole until 2020.
....
The juveniles could not safely be placed in the custody of a parent at any point during the life of this case, due to the parents' noncompliance and poor choices. Despite the offer of appropriate family services-including home visits, case management, foster-care services, counseling referral, drug and alcohol assessment referral, and random drug screens-Mother, James King, and Daniel Whittmore have all demonstrated either that they are either unwilling or unable to remedy the subsequent issues that prevent the juveniles from being placed in their custody. No parent in this case has shown that they can provide stability for the juveniles or protect the juveniles and keep them safe from harm.
(Emphasis in original TPR petition.)
On January 31, 2018, the circuit court held a TPR hearing. Whitney Muller, the assigned family-service worker in this case since April 2017, testified that the children were in their fourth foster-home placement and had been there since August 2017. Muller testified that they are doing "very, very well." She described the children's progress since she was assigned, stating that at both boys were very shy and quiet. She explained that during their current placement, they had transformed and had become engaging, talkative, friendly, and excited. Their teachers told Muller that they had made great strides academically and socially after having been below grade level.
Muller testified that DHS had not considered a trial placement with Lybrand because she had not complied at any point during this case. She also explained that DHS had not been able to place the boys with King because of his history of true findings of having shaken T.K., causing a subdural hematoma and bone fracture. She confirmed that King had been arrested, charged, and incarcerated for domestic battery due to the incident that resulted in these true findings. Although Muller acknowledged that King had been in nearly full compliance since the last hearing, she clarified that over the entirety of the case there had never been a point in which he had been in full compliance.
With respect to T.K., Muller recommended that he remain with DHS; that at no point would it be safe for him to return to Lybrand's custody-that her rights be terminated; that due to the true findings against King, T.K. should not be placed in his custody out of concern for his safety; and that it was not in his best interest to ever be in King's custody.
Muller explained that T.K. was placed in resource services for reading, received occupational therapy where he works on skills that he would utilize in the classroom, such as handwriting, and had been evaluated to need vision therapy. She told the court that the special services T.K. received did not, in any way, prevent him from being adoptable.
The boys' foster mother-since their placement on August 11, 2017-testified and corroborated Muller's testimony regarding the boys' progress and changes since coming into her care. She further explained that other issues, such as day and night wetting; various fears; and explosive behaviors-which happened multiple times a day, including at school; and an inability to express emotions had greatly subsided. She acknowledged that T.K. does sometimes pout or cry but that he is able to talk through what is going on and is working with his therapist to talk about *231emotions and how he is feeling. She confirmed that the boys are now outgoing, happy, smiling, and making eye contact. They talk to family and friends, are engaging at school, and are making good progress in school.
She specified that T.K. is in special education at school and that he is reading below a kindergarten grade level in the second grade. T.K. had a full psycho-educational evaluation through the school, and it found that he has special needs due to traumatic brain injury. He receives services for reading and math, resource services an hour a day, occupational therapy, individual help in the classroom, and participates in a home program for reinforcement. T.K. requires vision therapy because his eyes and brain are not able to work together to track from left to right, which is thought to also be due to the previous brain injury.
The foster mother confirmed that if the circuit court were to terminate parental rights, it is her desire to adopt both W.K. and T.K. She assured the court that the boys had bonded not only with her but also with her husband and two biological sons. She said that they have no behavioral issues or medical needs that would prevent someone from adopting them should she, for some reason, be unable to adopt them.
King testified, confirming his subsequent incarceration for third-degree battery from mid-June 2016 through January 2017 after a fight with Lybrand. He then attempted to explain the incident that resulted in the true findings of abuse in 2009, stating that he had shaken T.K. when he awoke to find two-month-old T.K. unresponsive in the bed with him, afraid for T.K.'s life. He did not take T.K. to the hospital until two days later. He pled guilty after being arrested and was incarcerated for seventeen months. He then stated he resumed his relationship with the boys and Lybrand on his release between 2011 and the 2016 incident.
With respect to his new apartment, King acknowledged DHS's concern about its being in a dangerous area, but he did not think it was a problem. He stated that he was working at McDonald's and doing his best to comply with court orders. He acknowledged that he would be on parole until 2020. He told the court that the individuals of concern listed in the CASA report would be strictly off limits to the boys.
Evidence was admitted of (1) his achievements while incarcerated, (2) payment of fines and fees, (3) clean drug screens, and (4) letters from his employer. But on cross-examination, King acknowledged that those achievements had occurred before the 2016 domestic-battery incarceration. His only explanation as to any steps he had taken to get his anger under control was to say that he had broken up with Lybrand.
The circuit court terminated King's parental rights by order filed on March 30, 2018, fifty-eight days after the TPR hearing. The TPR order stated that the circuit court considered and reviewed all the evidence submitted and the testimony of the witnesses and found that DHS had proved by clear and convincing evidence the following grounds:
a. The juveniles have been adjudicated by the court to be dependent-neglected and have continued to be out of the custody of the parents for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied by the parents.
b. The juveniles have lived outside the home of the parents for a period of twelve (12) months and the father, *232[Whittmore], has willfully failed to maintain meaningful contact with his son, [W.K.].
c. Other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in the custody of the parents is contrary to the juveniles' health, safety, or welfare and that despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parents' circumstances that prevent the placement of the juveniles in the custody of the parents.
d. The parents have subjected the juveniles to aggravated circumstances in that: a) there is little likelihood that services to the parents will result in successful reunification; b) [King] has abused a juvenile to the extent that it could endanger the life of the juvenile; and c) [Whittmore] has abandoned [W.K.]
e. A court of competent jurisdiction has found that [King] has committed a felony battery against [T.K.] that resulted in serious bodily injury to the juvenile.
The circuit court made specific findings with respect to King:
James King was convicted of the offense of Felony Battery against his child, [T.K.], and that the injuries suffered by [T.K.] resulted in serious bodily injury to [T.K.] and endangered his life. The Court finds that James King battered Teilor Lybrand after his release from prison. The Court finds that none of the parents are fit and that continuing contact between the parents and children would be harmful to the children.
In addition, the circuit court specifically found that it was in T.K.'s best interest to terminate King's rights:
The Court notes the history of violence by James King, the history of drug use by the mother[,] and the abandonment of [Whittmore] in support of this finding. The Court finds that both juveniles are very adoptable. Although [T.K.] has special needs associated with his traumatic brain injury, the Court finds that both children are flourishing in their foster home placement and that the placement has expressed an interest in adopting the children.
King filed a timely notice of appeal on April 4, 2018.
II. Standard of Review and Applicable Law
A circuit court's order terminating parental rights must be based upon findings proved by clear and convincing evidence.
In order to terminate parental rights, a circuit court must find by clear and convincing evidence that TPR is in the *233best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the TPR petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent.
III. Statutory Grounds
King argues that the circuit court erred regarding the statutory-grounds element because, although DHS alleged just one ground in its TPR petition-subsequent issues-the circuit court based TPR on four grounds: (1) failure to remedy conditions that caused removal; (2) subsequent issues; (3) aggravated circumstances; and (4) felony battery against a juvenile. King argues that basing TPR on three grounds not pleaded violated his Fourteenth Amendment due-process rights. See Jackson v. Ark. Dep't of Human Servs. ,
King maintains that the facts here are similar to those in Jackson. He claims that DHS did not plead against him the failure to remedy the conditions that caused removal, aggravated circumstances, or felony battery of a juvenile. Likewise, DHS did not amend its petition or move to conform to the evidence. Although the circuit court stated from the bench that it would terminate based on felony battery of a juvenile, King urges that that was too little notice too late. This court has found post- Jackson that DHS's failure to amend its petition or move to conform the pleadings to the proof prevents our review. See Moses v. Ark. Dep't of Human Servs. ,
We disagree. First, with respect to the failure to remedy the condition that caused removal, we note that the circuit court referred to "parents" without specifying which ones. The order cites the statutory language for custodial parents, which does not apply to King because he was incarcerated when the children were removed from Lybrand's custody. See
Regarding the statutory ground DHS specifically alleged in its TPR petition-subsequent issues-DHS had to prove by clear and convincing evidence that (1) other issues arose after the dependency-neglect petition was filed in October 2016; (2) the other issues indicated that placing T.K. in King's custody was contrary to T.K.'s health, safety, or welfare; (3) DHS offered appropriate family services to address the issues; and (4) despite those services, King manifested the incapacity or indifference to remedy the issues or rehabilitate the circumstances that prevented DHS from placing T.K. in his custody.
King argues that the only findings of fact that the circuit court made as to him on this point were that he had been convicted of felony battery against T.K., that the injuries resulted in serious bodily injury and endangerment to life, and that he subsequently had been involved in a domestic-battery incident with Lybrand.
*234King notes that each of those occurred before DHS removed the children in October 2016. He maintains that those issues could not constitute "subsequent issues" because they arose before DHS filed the dependency-neglect petition.
We hold that sufficient evidence does support the circuit court's TPR decision based on the subsequent-factors ground. A parent's "failure to comply with the court orders and case plan [is] sufficient evidence of other factors arising subsequent to the filing of the original petition." Clements v. Ark. Dep't of Human Servs. ,
The record is replete with evidence of King's failure to follow both the case plan and the circuit court's orders. When King finally appeared before the circuit court in the seventh month of the case, the circuit court found that he was not in compliance because he had not made himself available to the court or DHS, had not participated in services, and had not made progress toward completing the requirements of the court orders and case plan. King was ordered to cooperate with DHS; maintain weekly contact with the caseworker; keep DHS up to date with his contact information; abstain from illegal drug use; obtain and maintain stable housing and employment; maintain a clean, safe home for T.K.; follow the case plan and court orders; resolve all criminal charges; and follow the terms of his parole.
At the next hearing, the circuit court found that King still had not complied, stating:
[King] is not in a situation where he can provide what these boys need. He cannot meet the needs of [T.K.] [King] has not demonstrated that he can maintain stability. [King] has not been in compliance even once in this case. He has made minimal progress towards ... completing the court orders and requirements of the case plan. [King] has not made measurable, sustainable progress toward reunification with [T.K.], and [is] not following all court orders.
At the TPR hearing, Muller, the caseworker, testified that King was "nearly" compliant since the last hearing. But she also stated that "[a]s far as the entire case ... [h]e's never been in full compliance." DHS claims that King's eleventh-hour efforts were insufficient to prove that he had what it would take to be a safe and stable parent capable of adequately meeting the needs of T.K. See Burleson v. Ark. Dep't of Human Servs. ,
Additionally, DHS's court report provided evidence that King fell short in his ability to provide T.K. with a clean, stable home and further showed that he had failed to demonstrate the ability to protect T.K. and keep him safe from harm. This court has held that "[a] stable home is one of a child's most basic needs."
*235Howell v. Ark. Dep't of Human Servs. ,
Moreover, despite the traumatic brain injury King inflicted on T.K. that happened before the filing of the original dependency-neglect petition, it was the severity of the abuse King perpetrated on T.K. that subsequently prevented the circuit court from considering King for placement upon his release from prison and the establishment of paternity. We have recognized that a parent's past behavior is often a good indicator of future behavior. McGaugh v. Ark. Dep't of Human Servs. ,
Those are subsequent issues that came to the Court's attention after the original Petition for Dependency-Neglect that demonstrate that placing of these children with [King] is contrary to the children's health, safety and welfare. And that despite the services that DHS has provided, that father has the incapacity to show this Court that he won't subject these two little kids to more domestic battery or fracture somebody else's skull or cause traumatic brain injury through a shaking ... DHS caseworker Muller explained that DHS was "unable to consider a trial home placement for T.K. with his father, [King]" due to King's "history and true findings."
The circuit court recognized that it was the subsequent effect of King's prior actions that prevented placement of T.K. in King's custody and constituted a subsequent factor.
With respect to family services, DHS offered King family services by contacting him to determine his suitability as a caretaker, conducting a home study to assess the appropriateness of his home, and providing him services such as home visits, case management, transportation, and supervised visitation with the juveniles. In Brown v. Arkansas Department of Human Services. ,
The circuit court made repeated findings that DHS had provided reasonable family services, none of which were appealed. See Miller v. Ark. Dep't of Human Servs. ,
Finally, the circuit court also terminated King's rights based on the aggravated-circumstances ground--a ground supported by both oral and documentary evidence--and King failed to object to the finding at trial. Even in TPR cases, this court will not address arguments raised for the first time on appeal. Andrews v. Ark. Dep't of Human Servs. ,
*236We distinguish the facts of this case from the facts in Jackson , supra , in which this court held that the appellant was not placed on notice to defend against a particular ground because the circuit court took the matter under advisement without ruling from the bench, and the first specific mention of this ground was in the circuit court's TPR order. Conversely, here, the circuit court specifically stated in its oral ruling "that a court of competent jurisdiction has found [King] to be guilty of committing a felony battery that resulted in serious bodily injury" to T.K., which is "one of the aggravated-circumstances findings." See Potterton v. Ark. Dep't of Human Servs. ,
IV. Best-Interest Analysis
In addition to a statutory ground, a circuit court must also determine that TPR is in the child's best interest.
King submits that the circuit court's finding of potential harm was based solely on "the history of violence by" him. He states that this "history" consisted of two incidents that occurred seven years apart and that only the one involving Lybrand involved anger on his part. He claims that when looking at potential harm, one incident between parents does not mean a child is at risk of harm. King reiterates that Lybrand is now out of the picture, and her rights having been terminated; and he argues that the circuit court erred in finding potential harm.
We disagree. The "potential-harm inquiry is but one of the many factors that a court may consider, and the focus is on the potential harm to the health and safety of a child that might result from continued contact with the parent." Whitaker v. Ark. Dep't of Human Servs. ,
Regarding potential harm, the circuit court specifically found that "[A]DHS has proven by clear and convincing evidence that any unsupervised, continuing contact between ... [T.K.] and [King] would be extremely harmful, very dangerous, and not in the children's best interest." In its written order, the circuit court stated:
*237The Court finds by clear and convincing evidence that it is in the best interest of [T.K.] to terminate parental rights. In making this finding, the court specifically considered ... the potential harm to the health and safety of [T.K.] caused by returning [him] to the custody of the parents. The Court finds the testimony and documentary evidence demonstrate how ... [T.K.] would be at risk of potential harm if returned to any parent. The court notes the history of violence by [King] ... in support of this finding.
As compelling proof of potential harm, evidence was presented of King's history of violence and the fact that T.K. continues to suffer the effects of the trauma experienced at his hands. See McDaniel v. Ark. Dep't of Human Servs. ,
Testimony at the TPR hearing confirmed that T.K. still experiences the effects of this trauma. T.K.'s foster mother testified that T.K. had been "ruled as special needs due to traumatic brain injury." Furthermore, T.K. needed vision therapy due to his brain injury because "[h]is eyes and brain are not able to work together to track from left to right." As a result, T.K. "reads below kindergarten level in second grade." In its ruling, the circuit court accurately acknowledged that due to King's maltreatment, "[f]or the rest of his life, [T.K.] will have to work ten times harder than other kids his age to stay up."
The potential harm posed by King was further evidenced by his failure to benefit from services. Willingham v. Ark. Dep't of Human Servs. ,
The record also reflects King's past use of illegal drugs, which supports the circuit court's determination regarding potential harm. See Earls v. Ark. Dep't of Human Servs. ,
V. Untimely Filing of TPR Order
Finally, King correctly notes that a circuit court "shall" file a TPR order within thirty days after the hearing.
This court has recently restated that "our precedents unequivocally hold that compliance with this part of the statute is little more than a 'best practice,' the violation of which does not warrant reversal or any other sanction." Blasingame v. Ark. Dep't of Human Servs. ,
This court has consistently held that a strong "litmus test" for reversible error is prejudice. See Picinich v. Ark. Dep't of Human Servs. ,
Without prejudice, a circuit court's error is recognized as harmless.
*239Hooks v. Ark. Dep't of Human Servs. ,
Our appellate-court precedents consistently demonstrate that the Juvenile Code must be interpreted with a juvenile's best interests in mind and that time requirements for filings and hearings should not be interpreted to require reversal when the legislature did not provide such a remedy and reversal would not be in a juvenile's best interest. See
Affirmed.
Abramson and Murphy, JJ., agree.
Neither Lybrand, W.K., nor W.K.'s father, Daniel Whittmore, are parties to this appeal-although they were part of the original TPR action.
The TPR petition also specifically alleged that Whittmore had abandoned W.K. pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(iv).
King challenges only the potential-harm element of the best-interest analysis; therefore, he abandons any other arguments against the circuit court's best-interest finding. See, e.g. , Anderson v. Ark. Dep't of Human Servs. ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.