# Renfro v. Arkansas Department of Human Services

> Court of Appeals of Arkansas · June 1, 2011 · 2011 Ark. App. 419

URL: https://www.frixlaw.com/law-library/cases/5111774

## Case

- **Full name:** Honor RENFRO v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
- **Court:** Court of Appeals of Arkansas
- **Decided:** June 1, 2011
- **Citations:** 2011 Ark. App. 419; 385 S.W.3d 285; 2011 Ark. App. LEXIS 434
- **Precedential status:** Published
- **Opinion:** Dissent by Hart
- **Judges:** Abramson, Agree, Brown, Gruber, Hart, Martin, Wynne
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5111774

## How later opinions describe it (automated extraction)

- noting that the appellate courts will not develop a party’s arguments for him

## Opinion text

JOSEPHINE LINKER HART, Judge, dissenting.
Few rights are held more dearly than the right to parent our children. Yet, after today’s opinion, few rights are afforded weaker due-process protection. In achieving this remarkable result, I submit that the majority has made grievous errors of fact and law.
Although the dependency-neglect adjudication of the children was not an issue in this case — Ms. Renfro stipulated to it— the majority has elected to justify its action by making Ms. Renfro out to be a derelict by reciting that she was “too impaired to stand up.” The inconvenient truth is that at the time of her arrest, Ms. Renfro was tested and no traces of illegal drugs of any kind were found and no evidence of alcohol was noted. Furthermore, the trial judge found that Ms. Renfro’s public intoxication was attributed to an “unknown substance believed to be prescription drugs.”
The truth is, Ms. Renfro is a woman with some medical problems — the record indicates that she was taking several prescription drugs, for among other maladies, a seizure disorder — and she had some problems completing the case plan. Steady employment was elusive for her, as was stable housing. In her twenty-seven years, she had shown a pattern of being dependent on the men in her life. The record also indicates that she loved her children, | Mand, even more importantly, they were strongly bonded to her. It is worth noting that there are three children directly involved in this case, and a fourth sibling that is also affected. C.R.l, born April 27, 1998, and C.H., born April 24, 2003, have been placed with Erika and Steven Grimes, while C.R.2, born January 18, 2000, is placed with another “provider.” A fourth child, S.R., born February 22, 2001, who is not listed in the termination order on appeal, is nonetheless profoundly affected by it in that the courts have mandated a scattering of S.R.’s sibling group.
The foster-care experience for C.R.l, C.R.2, and C.H., has not been a completely happy one. Placement with the Grimeses was the third stop for C.R.1 and C.H. Prior to being placed with the Grimeses, C.R.l complained that he was not being fed by the “experienced provider.” While with the Grimeses, according to Erika, C.H. complained on more than one occasion that he was being physically abused by Erika Grimes, but was not believed.
I am troubled by the lack of evidence of adoptability in this ease, but even more by the majority acknowledging that the trial court’s reluctance to find that the children were adoptable was overcome not by evidence but by the assurances of ADHS’s trial counsel that “there were two foster families who had expressed interest in adopting the children.” The majority fails to note that the ADHS attorney also noted that “one of them has expressed more interest than the other, because of housing arrangements.” According to ADHS’s trial counsel, the home being considered as the “primary choice” was the Grimeses’, and Erika 11sGrimes was under investigation by the Arkansas State Police for allegedly abusing C.H. The ADHS trial counsel persuaded the trial court to delay the termination of Ms. Renfro’s parental rights not only to allow the Grimes investigation to be completed, but also to “sort out the grandparents and then talk to the other foster family.” The other supposedly interested foster home was never identified.
When the proceedings were resumed, ADHS submitted a report from the Arkansas State Police indicating that the complaint against Erika Grimes was unfounded. While the majority asserts that, in the formal report of the State Police’s child abuse investigation, Erika Grimes expressed interest in adopting “the children,” the children that she was speaking of were not specifically identified — she had three foster children in her home, one of which was not related to Ms. Renfro. Moreover, this statement, upon which the majority relies so heavily did not even appear in the summary of the State Police’s interview with Erika Grimes. It appeared in a section that was captioned ‘Worker’s observation.” I note, Steve Grimes, a long-haul truck driver, who was seldom at home — his interview was delayed because he was gone on a six-day “haul” — stated that “the children seem to do fine in their home and they would like to adopt them if possible.” Obviously, both “statements” are unsworn double hearsay, offered in an attempt to fend off an allegation of child abuse. I acknowledge that the admission of the State Police report was not objected to. 1 However, even if we are to give the 11fireport its highest possible probative value, it is totally inadequate to answer the question regarding the adoptability of C.R.2, because he was never considered. Although ADHS’s trial counsel promised to “sort out the grandparents and then talk to the other foster family,” he never did. Accordingly, there was no evidence, not even lawyer talk or police reports, presented regarding whether C.R.2 was adoptable and apparently not even any consideration. I cannot excuse this oversight. I believe every child is important.
As troubling as the majority’s handling of the facts is, it pales in comparison to the majority’s mistakes of law. I am gratified that the majority has reaffirmed the holdings in Haynes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 28 , 2010 WL 185194 , and Grant v. Arkansas Department of Human Services, 2010 Ark. App. 636 , 378 S.W.3d 227 , where the court of appeals has clearly stated that “consideration” of the adoptability of the children must be based on “evidence.” I lament that the applicability of these worthy authorities has somehow eluded the majority. Its attempt to distinguish Grant clearly misses the mark. In Grant, there was a scintilla of evidence regarding adoptability; ADHS worker Glenda Shavers opined, that “all children are adoptable.” I submit that a statement made to a child-abuse investigator where the immediate concern was the resolution of child-abuse allegations, not whether the parties honestly desired to adopt some of Renfro’s children is less than a scintilla of evidence.
Moreover, the majority’s reliance on the Grimeses’ statements is mere sophistry. The trial judge did not delay the termination of Ms. Renfro’s parental rights in hope that the |17Grimeses had somehow expressed a desire to adopt the children as they fended off child-abuse allegations. It is obvious from the record that the trial judge based his decision on the assurances of the ADHS trial counsel that there are “families” interested in adopting Renfro’s children. The State Police report was offered to prove that the child-abuse allegations against Erika Grimes was unfounded, and it was admitted into evidence without the trial court having scanned it for the statements discussed above. We know this fact because the trial judge himself said so:
What happened is, I withheld my ruling as to termination of parental rights until the Department had established a clear path to adoption for these boys. Today they have provided me with an exhibit that exonerates some people who are interested in adoption from a claim that was made. It opens the way for them to adopt all three of these boys.
At all times, the trial judge based his consideration of adoptability on assurances from trial counsel. Again, the trial judge admitted as much when he announced from the bench, “They are also informing me that family members, I think maybe an aunt, or a sister of the mother, has approached the Department seeking placement of the children and maybe someone else. I’m not sure who.” If these alleged facts were presented in the form of “evidence,” perhaps the trial judge would be “sure” who was interested.
It is so well settled as to be axiomatic that statements by counsel are not evidence. Barnes v. State, 346 Ark. 91 , 55 S.W.3d 271 (2001); Montgomery v. Butler, 309 Ark. 491 , 834 S.W.2d 148 (1992); Roberts v. Green Bay Packaging, Inc., 101 Ark.App. 160 , 272 S.W.3d 125 (2008). Indeed, even the majority has acknowledged that statements of counsel are not 11«evidence. Nonetheless, the majority somehow finds that these statements of counsel should be morphed into being evidence, presumably because the decision was made by “an experienced judge.” Our appellate review should be uniform. We should never alter our standards to fit our perception of a trial judge’s experience or ability.
The majority’s admonition to ADHS to “not consider [its] opinion as sanctioning the offering of such scant evidence” rings hollow. The record indicates that ADHS’s trial counsel told the trial judge that Erika Grimes was present in the courtroom and could easily have been called to testify as to her intentions regarding adopting some of Ms. Renfro’s children. Likewise, at the conclusion of the resumed hearing, the trial judge announced that anyone else interested in adopting the “boys” should hire a lawyer and pursue that option. Presumably, if there was any bona fide interest in adopting the minor children, that interest could have been established through testimony, then and there.
I am mindful that, for example, the supreme court in Reid v. Arkansas Department of Human Services, 2011 Ark. 187 , 380 S.W.3d 918 , and this court in McFarland v. Arkansas Department of Human Services, 91 Ark.App. 323 , 210 S.W.3d 143 (2005), have said that proof of adoptability need not be proven by clear and convincing evidence. However, while these worthy authorities excuse ADHS from providing clear and convincing evidence regarding adoptability, they merely beg the question as to what standard of proof is required. As I noted previously, in Haynes and Grant, which the majority does not suggest they are overruling, the court of |19appeals stated unequivocally that a trial judge could not “consider” adoptability without evidence.
It is my understanding that in American jurisprudence, there are three levels of evidence required: beyond a reasonable doubt, clear and convincing, and a preponderance in most civil cases. The case at bar represents a squandered opportunity to define the quantum of proof necessary for a trial judge to “consider” the adopta-bility of the children in question. That is, were the majority not so eager to throw the proverbial baby out with the procedural bath water. Sartin v. State, 2010 Ark. 16 , 362 S.W.3d 877 . However, even if the majority adopted an “any evidence” standard, even that abysmally low showing would not have been met in this case because there was no evidence concerning C.R.2’s adoptability whatsoever. The fact that the majority has failed to acknowledge that there is no evidence concerning C.R.2’s adoptability is tacit admission that their position is manifestly unsound.
Finally, I cannot understand why the majority seems to think that the termination of Ms. Renfro’s parental rights to her children is in the children’s best interest — or anybody else’s. 2 Again, the record reveals that the children were strongly bonded to Ms. Renfro and the trial judge correctly noted that the children were at an age where they were certain to 12flremember their devoted mother. There is no evidence to suggest that it is in the children’s best interest to deny them access to a loving mother, who has not physically harmed them in any way. Moreover, the holy grail of “permanency” is likely to be elusive in this case. The purported best alternative, the current foster-home placements for these children is their third stop, and we do not know if C.R.2’s foster family is even interested in adoption. Regarding the foster parents who, according to ADHS’s trial counsel and the State Police child-abuse investigators, may be interested, the “family” consists of a mother whose job is providing foster care and a father who is a long-haul truck driver who claimed he was on the road for six days at a time.
It is impossible to predict how successful adoptive parents will be, if indeed a full compliment of adoptive parents can be found. However, we need not look any further than Ms. Renfro herself to realize that adoption is not a panacea. Ms. Ren-fro herself was separated from her mother at age eight and adopted by a stepmother. Ms. Renfro married at age fourteen and shortly thereafter gave birth to the first of her four children. Significantly, Ms. Ren-fro’s adoptive mother has been identified as a potential “permanent placement” for one or more of the children. Interestingly, Ms. Renfro reunited with her birth mother when she turned nineteen.
I am compelled to note that in “freeing up” the children for adoption, two fathers 3 and a mother have been excused from not only rearing the children, but also supporting the | ⅞1 children that they brought into this world. As a sibling group and as older children, the adoption — if it actually takes place — will be eligible for a subsidy that will cost the taxpayers almost $1400 per month, plus the cost of medicaid. 016-15-011 Ark.Code R. VIII — I (Weir 2011). That means that the taxpayers will probably be out well over $200,000 by the time the children reach their majority. Ironically, $1400 per month is likely more than the take-home pay Ms. Renfro and many other working mothers could expect to earn.
It is apparent that as termination-of-parental-rights jurisprudence continues to evolve, we are straying farther and farther from the stated intent of our juvenile code. In Arkansas Code Annotated section 9-27-302, the legislature stated that the purpose was in pertinent part:
(1) To assure that all juveniles brought to the attention of the courts receive the guidance, care, and control, preferably in each juvenile’s own home when the juvenile’s health and safety are not at risk, that will best serve the emotional, mental, and physical welfare of the juvenile and the best interest of the state;
(2)(A) To preserve and strengthen the juvenile’s family ties when it is in the best interest of the juvenile;
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(D) To assure, in all cases in which a juvenile must be permanently removed from the custody of his or her parents, that the juvenile be placed in an approved family home and be made a member of the family by adoption.
(Emphasis added.)
Here, the Arkansas Department of Human Services, which supposedly entered the lives of Ms. Renfro and her children under a program charged with helping the family has utterly failed. As the trial judge correctly noted, we are dealing with older children who will carry the memory of their mother and some sense of responsibility for their family being shredded. | ?,;>The final living arrangement for at least one child, if not all, is far from certain. At the same time, the taxpayers have been burdened with the cost of raising those children while the natural parents are relieved of that obligation. I cannot agree that this is in anybody’s best interest.
. The majority’s citation of Donahue v. Arkansas Department of Health and Human Services, 99 Ark.App. 330 , 260 S.W.3d 334 (2007), betrays its understanding of my point regarding the information contained in the report. Donahue stands for the unremarkable proposition that appeals of evidentiary rulings must be preserved by a specific contemporaneous objection. Whether or not the statements in question were objected to does not make them something that they are not.
. The majority’s suggestion that “Renfro raises no serious argument that termination of her parental rights was not in the children's best interest,” betrays its shallow understanding of the requirements of Arkansas Code Annotated section 9-27-341. The statute requires that termination of parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the child, including consideration of factors such as "the likelihood of adoption of the child.” McFarland v. Arkansas Dep’t of Human Servs., 91 Ark.App. at 327 , 210 S.W.3d at 147 . The adoptability of the child is an integral part of the best-interest-of-the-child analysis.
. Apparently, the parental rights of both fathers were terminated when neither showed up at the hearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5111774. Public record. Not legal advice.