WAYMOND M. BROWN, Judge.
Appellant Michael Edwards appeals the termination of his parental rights to
A call was made to the Arkansas Child Abuse Hotline on February 26, 2014, stating that A.E. had approximately twenty bruises at different stages of healing. Appellant was incarcerated at this time, and A.E. was in the custody of her mother, Michelle Edwards. A.E. was taken for a health-and-safety assessment at Le Bonheur in Memphis, Tennessee, where it was discovered that she had two skull fractures, multiple bruising, and internal injuries. A.E.'s perpetrator was unknown. A seventy-two hour hold was taken on March 1, 2014, due to severe maltreatment and substantial risk of serious harm. DHS subsequently petitioned for emergency custody of A.E., who was approximately nineteen months old at the time. The court entered an ex parte order for emergency custody on March 11, 2014. The court entered a probable-cause order on April 23, 2014, finding that the emergency conditions which necessitated removal still existed and ordering A.E. to remain in the custody of DHS.
On May 5, 2014, Donna Baker, A.E.'s paternal grandmother, filed a petition for guardianship of A.E. Attached to the petition was a handwritten letter signed by both appellant and Michelle on December 28, 2012, granting Baker permission to take temporary custody of A.E. if they were absent and/or unable to care for A.E. DHS and the attorney ad litem filed a joint petition for termination of parental rights on May 19, 2014. The petition stated the following in relation to appellant:
A continuance order was entered on May 19, 2014, continuing the case for good cause to June 23, 2014. Appellant was appointed counsel in an order filed on June 5, 2014. On that same date, appellant filed an answer to the termination of parental rights petition. In the answer, he affirmatively pled "lack of service of process and any and all defenses and affirmative defenses set forth under Arkansas Civil Procedure Rules 8 and 12." He also filed a motion for transport order on June 5, 2014, so that he could be present at a hearing set for June 10, 2014. The court denied the motion on June 10, 2014, and the order was filed on June 23, 2014. The adjudication hearing took place on July 2, 2014. A.E. was adjudicated dependent-neglected based on "inadequate supervision and failure to protect due to the extent, nature, seriousness and the location of the injuries on the minor child and extreme physical abuse by Herbert McCaig."
Appellant filed a motion for continuance on March 31, 2015. The motion stated that appellant would be paroled on November 24, 2015, and that there were "no allegations against the defendant Michael Edwards except for that he is incarcerated." Attached to the motion was an offender sentence letter, which reflected that appellant began an eight-year sentence on July 7, 2013, and that his release eligibility date was November 24, 2015. The letter also showed that the full expiration date of appellant's sentence was June 29, 2021. Appellant filed a pro se letter with the court on March 31, 2015. He attached a certificate of completion for a Pro-Social Life Skills Program.
The court entered an order granting the Strongs' motion to intervene on April 20, 2015. The order from a placement hearing held on January 30, 2015, was filed on May 18, 2015. In that order, the court acknowledged that Donna and Shad Baker had an approved ICPC home study through the state of Tennessee. The court found that it was in A.E.'s best interest to remain in the home with the Strongs, stating that "there is more stability and continity of care and more structure and routine with Paul and Tiffany Strong. The Strong's [sic] are a more traditional family... and they have had physical custody of [A.E.] in excess of nine months." The order further stated:
The termination hearing took place on April 15, 2015. Appellant was not present for the hearing, although his attorney was present. The court addressed appellant's motion for continuance at the beginning of the hearing. Appellant's attorney asked the court to continue the case "to allow [appellant] to be released and have an opportunity to work the plan." The attorney further stated that the "allegations that brought the child in to Court really has nothing to do with my client, other than the fact that he is incarcerated." The
Sylvia Ware, a family service worker supervisor with DHS, testified that she became involved with the case on January 26, 2015. She stated that she had not had any contact with appellant, and that appellant had been incarcerated throughout the duration of the case. She said that she was unaware of any contact with or support of A.E. by appellant. She opined that A.E. was adoptable and that termination was in A.E.'s best interest. She testified that A.E. had been in foster care since coming into DHS's custody. She stated that appellant had not provided anything to DHS in regards to A.E. and that, to her knowledge, he had not provided anything to his parents to give DHS.
Appellant's attorney did not call any witnesses during the termination hearing. At the conclusion of the hearing, the court granted DHS's petition to terminate appellant's parental rights.
Appellant filed a timely notice of appeal on June 4, 2015. This timely appeal followed.
On appeal, appellant argues that (1) DHS and the attorney ad litem failed to demonstrate that termination was in A.E.'s best interest, (2) the evidence was insufficient to establish at least one available ground for termination, and (3) his due process rights were violated where he was incarcerated and not given an opportunity to participate in the proceeding concerning his child.
We review termination-of-parental-rights cases de novo.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents.
An order terminating parental rights must be based on the court's finding by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration that (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm caused by returning the child to the custody of the parent.
In arguing that DHS and the attorney ad litem failed to demonstrate that termination was in A.E.'s best interest, appellant contends that he was not the cause of A.E.'s injuries, that he was not found to be unfit, and that he did not pose any danger to A.E. DHS concedes these facts. In addition, appellant argues that A.E. was not dependent-neglected because, prior to his incarceration, he arranged for his mother to take care of A.E. in his absence, and that his mother should have been given preference under Ark. Code Ann. § 9-27-355. Appellant further argues that termination was not in A.E.'s best interest because it adversely affected A.E.'s relationship with his mother. DHS contends that appellant's argument concerning his mother being a fit and willing caregiver goes beyond sufficiency and is not preserved because it was not raised below. We agree. To the extent that appellant argues that his mother should have been given preference in place of termination of parental rights, appellant failed to appeal from the order setting the goal of the case to termination of parental rights and adoption.
Despite appellant's contention, there was evidence that termination of his parental rights was in A.E.'s best interest. He had been incarcerated throughout the life of the case. There was no evidence that he had any contact with the child during his incarceration. Although he was
To the extent that appellant argues that termination adversely affected A.E.'s relationship with his mother, there was no evidence of the nature and extent of the relationship A.E. shared with appellant's mother. Although appellant's mother had been granted unsupervised visitation, that visitation had been modified. And at the time of the termination hearing, appellant's mother had not seen A.E. for ten weeks because she thought that she had to submit a negative hair follicle test before continuing visitation. Therefore, this case is unlike the situation in Caldwell v. Ark. Dep't of Human Servs.,
Next, appellant argues that the evidence was insufficient to establish at least one available ground for termination. According to appellant, the termination petition failed to plead either ground employed by the court at the hearing, so both grounds should be excluded. DHS concedes that one ground found by the court for terminating appellant's parental rights was not pled and should not be considered. Although appellant admits that the termination petition had a sentence in it that stated that he was incarcerated and not expected to be released in the near future, he contends that this was not enough to place him on notice that his parental rights were subject to termination based upon the substantial-incarceration ground. In addition, he argues that even if the ground was sufficiently pled to place him on notice, there was no sufficient evidence to support that ground because DHS and the ad litem did not produce any evidence or proof of his sentence. These arguments are without merit.
Appellant never raised an argument about lack of notice or failure to plead grounds properly below. In fact, his attorney stated that the only evidence against appellant was his incarceration. To the extent that appellant argues that evidence of his sentence had to be placed into evidence by DHS or the ad litem, he is mistaken. Evidence of the length of his sentence was properly before the court in the form of appellant's motion for a continuance. The sentence letter attached to appellant's motion showed that appellant had been sentenced to eight years' imprisonment in July 2013. The court addressed and denied appellant's motion at the beginning of the termination hearing. Termination
Finally, appellant argues that his due process rights were violated because he was not given an opportunity to participate in the proceeding concerning his child due to his incarceration. This argument focuses on both the placement hearing and the termination hearing. However, this argument was not raised below and is not properly before us. Appellant contends that he should have been allowed to participate at the termination hearing and that the lack of his presence at that hearing should be a Wicks exception.
In Wicks v. State,
Here, although appellant was not present, his attorney fully participated during the hearing. There is no indication that appellant's due-process rights could not have been safeguarded in his absence. Therefore, there was no reason for the court to step in on its own motion and raise appellant's due-process argument. Thus, this does not fall within the third Wicks exception, and we cannot address it due to lack of preservation.
Affirmed.
Gladwin, C.J., and Abramson, J., agree.