Jack Nelson Jones Professional Association

December 2-8, 2019

Hardiman v. Arkansas Department of Human Services and Minor Children, 2019 Ark. App. 542, Nov. 13, 2019


This case arose as on appeal from the Columbia County Circuit Court, Honorable David W. Talley, Jr., presiding. Counsel for appellant Catherine Hardiman (Hardiman) brought this no-merit appeal from the court’s order terminating appellant’s parental rights to her sons, D.H.1 (DOB: 02/27/05) and D.H.2 (DOB: 05/11/06). Hardiman’s counsel filed a motion to withdraw and a no-merit brief contending that there were no meritorious issues that would support an appeal. The clerk of the circuit court mailed a certified copy of counsel’s brief and motion to be relieved to Hardiman informing her of her right to file pro se points for reversal, which she elected to do. The termination order and granting of counsel’s motion to withdraw were both affirmed.


The Court of Appeals (“Court”) noted that it reviews termination-of-parental-rights cases de novo. 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. The only inquiry before the Court is only whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. A finding is clearly erroneous only 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. In resolving the clearly erroneous question, due regard is given to the circuit court to judge the credibility of witnesses. 


The Court observed that, to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination 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. The circuit court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. The Court noted that, while termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights, parental rights will, nonetheless, not be enforced if it would be to the detriment or destruction of the health and well-being of the child.


On Oct. 26, 2015, the Arkansas Department of Human Services (DHS) was contacted after a call had been made to the child-abuse hotline, involving several children. At the Dec. 4, 2015 adjudication hearing, Anthony Pugh was found to be the legal father of D.H.1, D.H.2, and T.H.  On April 13, 2016, DHS removed three siblings (K.H., J.A., and T.H.) from the custody of Hardiman, and they were adjudicated be dependent-neglected due to sexual abuse of K.H. by Hardiman’s boyfriend, Anthony Pugh. An agreed temporary order was entered on September 16, 2016, placing K.H. and J.A. in the temporary custody of a relative. T.H. was placed in the temporary custody of a different relative on April 12, 2017. On July 7, 2017, a review, permanent-custody, and partial-closure order was entered placing K.H., J.A., and T.H. in the permanent custody of their respective temporary custodians and closing the case as to them. D.H..1 and D.H.2 were removed from the legal custody of Hardiman and the physical custody of their paternal grandmother, Debbie Daniels. 


The circuit court ordered DHS to work with Daniels toward achieving the goal of permanent custody after finding Hardiman was not in compliance with the case plan or orders of the court. At a second permanency-planning hearing held on Nov. 3, 2017, the circuit court found Hardiman unfit and unable to protect D.H.1 and D.H.2’s health and safety if returned to her. The court further found that despite reasonable efforts by DHS, appellant had not been involved herself in the case planning process. 


Consequently, the goal of the case was changed from reunification to termination of parental rights and adoption. DHS filed a petition for termination of parental rights on Dec. 12, 2018, alleging five grounds for termination. Following a hearing, the circuit court granted DHS’s petition to terminate appellant’s parental rights based on two of the grounds alleged in the petition: (1) aggravated circumstances and (2) abandonment. A termination order was entered on Feb. 13, 2019.


Evidence presented at the Jan. 18, 2019 termination hearing supported the abandonment ground for termination. Specifically, Hardiman testified that she had not attended any court hearings, nor had she seen D.H.1 and D.H.2 since July 2017. 


Although she claimed she had no transportation, she admitted she was able to get rides to other places she wanted to go. She stated that DHS was on the other side of town, and that was just too far to go to see her children. Additionally, Hardiman claimed that she thought the case was closed despite the fact that she was present at the July 2017 hearing at which a future court date was set. The Court observed that the permanent loss of custody of K.H., J.A., and T.H. might have confused her, but she was given notice of future responsibilities and hearing dates for these two remaining children, D.H.1 and D.H.2. 


Although Hardiman went more than a year without seeing her children, she serendipitously contacted DHS on Jan. 16, 2019, only two days prior to the termination hearing. The Court noted that abandonment is defined as the failure of a parent to support or maintain regular contact with a child without just cause. It also observed that the termination statute does not require that the abandonment last for any particular length of time. The Court found that evidence presented at the termination hearing also supported the circuit court’s best-interest finding. An Adoption Specialist testified that D.H.1 and D.H.2 were adoptable. She stated that the boys did not have any medical or physical barriers to adoption and that they were a match for one-hundred-nine possible adoptive families. The Court observed that the testimony of an adoption specialist is sufficient to support a circuit court’s adoptability findings. As for potential harm, it noted that Hardiman’s noncompliance with the case plan and court orders was sufficient evidence of potential harm to a child. 


In her pro se points for reversal, Hardiman asserted that she loved her sons and asked for another chance to be part of their lives. She submitted that her other children wanted to see their brothers because they are a family. Nevertheless, as previously discussed, the Court found that the circuit court’s termination decision was supported by sufficient evidence, and, therefore her pro se points provided no grounds for reversal. 


The Court also noted that it had carefully examined the record and counsel’s brief and concluded that counsel complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in termination cases and that the appeal was wholly without merit. Accordingly, the termination of appellant’s parental rights to D.H.1 and D.H.2 and grant counsel’s motion to withdraw were affirmed.