Hunter v. Ark. Dep't of Human Servs. & Minor Child
Hunter v. Ark. Dep't of Human Servs. & Minor Child
Opinion of the Court
Appellant Derrick Hunter appeals from the March 28, 2018 order of the Columbia County Circuit Court terminating his parental rights to his son, J.H. Hunter argues that he was denied due process because (1) he was not provided assistance of counsel until the termination hearing and (2) sufficient evidence did not support the termination. We affirm.
On August 19, 2016, the Arkansas Department of Human Services (DHS) exercised an emergency seventy-two-hour hold on newborn J.H. when both J.H. and his mother, Jessica Otwell, tested positive for amphetamines at the time of J.H.'s birth.
A petition for emergency custody was filed on August 25, 2016, and an ex parte order for emergency custody was signed that same day. A probable-cause hearing was conducted on September 2, 2016, and the order entered found that the emergency conditions that necessitated removal of J.H. from his mother's custody continued to exist. Hunter was present at the hearing and was ordered to submit to a DNA test to determine paternity as to J.H.
On October 7, 2016, Hunter attended the adjudication hearing, and the circuit court found J.H. dependent-neglected. In addition, it was established that Hunter did not have significant contacts with J.H., and putative-parent rights had not attached. The circuit court reiterated its order for Hunter to submit to DNA testing.
A review hearing was held on January 6, 2017, and DNA test results were entered into evidence showing that there was 99.99 percent probability that Hunter is J.H.'s biological father. The circuit court ordered Hunter to "participate in the services outlined *886in the case plan, including random drug testing, and ... submit to a hair follicle drug screen." Additionally, the circuit court found that Hunter had completed parenting classes and submitted to a psychological evaluation, but he had tested positive for illegal substances.
Another review hearing was held on February 17, 2017, and the circuit court found that Hunter was complying with the case plan and court orders and that he had been testing negative for illegal substances. On March 6, 2017, an amended review order was filed pertaining to the review hearing held on January 6, 2017. The order was amended to reflect the addition of Hunter as a defendant and to add language adjudicating Hunter the legal father of J.H.
On April 21, 2017, a third review hearing was held. The circuit court found that Hunter was complying with the case plan and ordered him to submit to a psychosexual evaluation. A fourth review hearing was held June 23, 2017, and the circuit court found that Hunter had "violated the Court's previous order restricting [his] visitation to supervised visits only."
On October 17, 2017, DHS filed a petition for termination of Hunter's parental rights based on three grounds: "failure to remedy,"
The circuit court held the termination-of-parental-rights hearing on January 19, 2018. After finding that Hunter was indigent and had requested counsel, the court appointed counsel to represent him at the termination hearing. The circuit court terminated Hunter's parental rights based on the aggravated-circumstances ground. Moreover, the circuit court found that it was in J.H.'s best interest to terminate Hunter's parental rights. This timely appeal follows.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. ,
In this appeal, Hunter first argues that he was denied due process because he was not appointed counsel until the termination-of-parental-rights hearing. However, Hunter failed to raise any due-process argument to the circuit court and we have held that that we will not consider issues raised for the first time on appeal, even constitutional ones. Maxwell v. Ark. Dep't of Human Servs. ,
A Wicks exception will not apply absent a flagrant error so egregious that the circuit court should have acted on its own initiative.
Next, Hunter challenges both the ground for termination and the best-interest finding. The termination-of-parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. The first step requires proof of one or more of the nine enumerated statutory grounds for termination.
Hunter asserts that insufficient evidence supported the circuit court's reliance on the statutory ground of "aggravated circumstances" to terminate his parental rights. The aggravated-circumstances ground requires proof that there is little likelihood services to the family will result in successful reunification.
Here, the record at the termination hearing reflects there was ample *888evidence to support more than a "mere prediction" that reunification services would not result in successful reunification under the "aggravated-circumstances" ground. At the time of the termination hearing, Hunter, a level-three sex offender, was incarcerated awaiting trial for delivery of a controlled substance. He had a long history with DHS, including two true findings of sexual misconduct and a true finding of physical abuse. He has had a history of substance abuse and failure to follow court orders. Lastly, he lacked credibility as evidenced by the fact that he lied to the circuit court about a drug test in which he first claimed he used his cousin's urine and he would not disclose his cousin's name but then later claimed the urine as his own. Based on these circumstances, the circuit court did not clearly err in finding there was little likelihood that services would result in reunification.
Next, in determining the best interest of the child, the circuit court should consider factors such as the likelihood of adoption and the potential harm to the health and safety of a child if subjected to continuing contact with the parent.
Hunter challenges the circuit court's best-interest finding but does not specifically contest either the adoptability prong or the potential-harm prong of the best-interest analysis. Rather, he argues that he made measurable progress toward remedying the situation and that he is being punished for a conviction that occurred when he was a teenager. However, when an appellant fails to make a specific argument in his or her brief regarding the factors outlined in the termination statute, this court will consider any argument pertaining to those factors abandoned on appeal. See Thomas v. Ark. Dep't of Human Servs. ,
Affirmed.
Abramson and Gladwin, JJ., agree.
Otwell's one-year-old son C.O. was also removed from her custody, but neither C.O. nor Jessica is a party to this appeal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.