                                Cite as 2017 Ark. App. 625


                ARKANSAS COURT OF APPEALS

                                 DIVISIONS I, II, and IV
                                    No. CV-17-418


                              Opinion Delivered: November 15, 2017
TIMOTHY BRINKLEY AND
DORLETHA BRINKLEY LAMBERT     APPEAL FROM THE CRAIGHEAD
                   APPELLANTS COUNTY CIRCUIT COURT,
                              WESTERN DISTRICT
V.                            [NO. 16JV-15-173]

                                               HONORABLE MELISSA BRISTOW
ARKANSAS DEPARTMENT OF                         RICHARDSON, JUDGE
HUMAN SERVICES AND MINOR
CHILDREN                      AFFIRMED IN PART; REVERSED
                    APPELLEES AND REMANDED IN PART


                            KENNETH S. HIXSON, Judge

       Appellants Dorletha Brinkley Lambert and Timothy Brinkley appeal from the

termination of their parental rights to their three children, T.M.1, T.M.2, and T.M.3, who

are now ages nine, eight, and six. On appeal, Dorletha argues that there was insufficient

evidence to support the termination of her parental rights because there was a failure of

proof as to the statutory grounds found by the trial court. In his appeal, Timothy also

challenges the sufficiency of the evidence, arguing that there was insufficient proof of the

statutory ground found by the trial court pertaining to him. In addition, Timothy argues

that the trial court erred in proceeding on the petition to terminate his parental rights

because he was not appointed counsel until immediately before the termination hearing.

Finally, Timothy contends that it was error to terminate his parental rights because he was

not served with the case plan or relevant pleadings, and because his attendance or
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participation was not secured at any hearing before the termination hearing. We affirm the

termination of Dorletha’s parental rights. However, based on our conclusion that the trial

court clearly erred in finding sufficient proof of a statutory ground as to Timothy, we reverse

the termination of his parental rights.

       We review termination of parental rights cases de novo. Mitchell v. Ark. Dep’t of

Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must

exist, in addition to a finding that it is in the child’s best interest to terminate parental rights;

these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Repl.

2015); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997).

Clear and convincing evidence is that degree of proof that will produce in the factfinder a

firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark.

633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that

the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v.

Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly

erroneous 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. Yarborough

v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).

       This case was initiated by appellee Arkansas Department of Human Services (DHS)

when it filed a petition for emergency custody of the three children on May 11, 2015.

When the petition was filed, the children were living with Dorletha in Jonesboro, Arkansas,

and Timothy was incarcerated in Texarkana, Texas. An affidavit of a family service worker

stated that the three children had been left unsupervised and locked out of their house for


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more than two hours, and when Dorletha came home she told the worker that she had been

at her aunt’s house across town. Dorletha was arrested and charged with three counts of

first-degree endangering the welfare of a minor. On the same day the petition was filed,

the trial court entered an ex parte order for emergency custody of the three children.

        The trial court entered a probable-cause order on May 12, 2015. In the probable-

cause order, the trial court ordered the parents to cooperate with DHS, comply with the

case plan, remain drug free, submit to a drug-and-alcohol assessment, and complete

parenting classes.   The parents were also ordered to maintain stable housing and

employment, and to resolve all outstanding criminal matters.

        On June 30, 2015, the trial court entered an adjudication order adjudicating the

children dependent-neglected. The goal of the case was reunification.

        A review order was entered on November 3, 2015, wherein the trial court found

that Dorletha was in noncompliance with the case plan due to a positive drug screen and

her failure to attend drug treatment. The order indicated that Timothy did not appear at

the hearing, and the trial court found that Timothy had participated in none of the case

plan.

        On April 28, 2016, the trial court entered a permanency-planning order finding that

Dorletha was in compliance with the case plan but needed to resolve her criminal matters,

including a DWI charge. The order again indicated that Timothy did not appear at the

hearing, and the trial court found that Timothy had participated in none of the case plan.

In the permanency-planning order, the goal of the case continued to be reunification with

Dorletha. However, in a fifteen-month-review order entered on July 21, 2016, the trial


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court authorized DHS to file a petition to terminate parental rights. In that order, it noted

that Timothy again did not appear, and under section 8, “The court finds that the parents

have participated in the case as follows,” the trial court noted that Dorletha was currently

incarcerated and facing criminal charges for both DWI and aggravated assault; Timothy was

not mentioned at all.

       DHS filed a petition to terminate both parents’ parental rights on September 14,

2016. The termination hearing was scheduled for October 18, 2016. However, on the day

of the scheduled termination hearing, the trial court entered an order of continuance

wherein it rescheduled the hearing for November 18, 2016, appointed counsel to represent

Timothy at the hearing, and instructed counsel to arrange for Timothy’s transportation from

jail to the hearing. The termination hearing was held on November 18, 2016, with both

Dorletha and Timothy present and represented by counsel.

       On March 2, 2017, the trial court entered an order terminating Dorletha’s and

Timothy’s parental rights to the three children.       The trial court found by clear and

convincing evidence that termination of parental rights was in the children’s best interest,

and the trial court specifically considered the likelihood that the children would be adopted,

as well as the potential harm of returning them to the custody of their parents as required

by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2015). The trial

court also found, with respect to Dorletha, clear and convincing evidence of the following

two statutory grounds under subsection (b)(3)(B):

       (i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected
       and has continued to be out of the custody of the parent for twelve (12) months and,
       despite a meaningful effort by the department to rehabilitate the parent and correct


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       the conditions that caused removal, those conditions have not been remedied by the
       parent.

       ....

       (vii)(a) That other factors or issues arose subsequent to the filing of the original
       petition for dependency-neglect that demonstrate that placement of the juvenile in
       the custody of the parent is contrary to the juvenile’s health, safety, or welfare and
       that, despite the offer of appropriate family services, the parent has manifested the
       incapacity or indifference to remedy the subsequent issues or factors or rehabilitate
       the parent’s circumstances that prevent the placement of the juvenile in the custody
       of the parent.

The trial court found that Dorletha had been incarcerated seventeen times during the case,

had consistently minimized her arrests, and had a long and unresolved history of alcohol

abuse. As to Timothy, the trial court found under subsection (b)(3)(B)(iv) that he had

abandoned the juveniles.

       DHS caseworker Tina Green testified at the termination hearing. Ms. Green testified

that Dorletha has had issues with alcohol abuse throughout the case, which was in large part

the reason for Dorletha being arrested and incarcerated seventeen times for various offenses.

According to Ms. Green, in the past several months Dorletha had been convicted of DWI,

driving on a suspended license, and two counts of aggravated assault. Dorletha was last

arrested two weeks before the termination hearing, and she remained in jail awaiting transfer

to a court-ordered inpatient treatment facility. Ms. Green indicated that Dorletha had

completed a previous treatment program, but with unsuccessful results, and that Dorletha

minimized and made excuses for her criminal troubles.

       Ms. Green stated that, after the children were removed, Dorletha remarried and now

has stable housing.    Ms. Green further acknowledged that Dorletha had been fairly

compliant with the case plan as far as “checking the boxes,” but that she had not remained
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sober or resolved her criminal issues. Ms. Green stated that one of the assault charges against

Dorletha arose from an incident where Dorletha had cut her husband with a razor.

Ms. Green also believed that Dorletha has mental-health issues. Ms. Green was concerned

that the children’s safety and welfare would be at risk if they were returned to their mother’s

custody, and she testified that the children are adoptable.

       Ms. Green testified that Timothy has been incarcerated from the outset of the case,

and she was not aware of him ever asking for DHS services or asking to visit the children.

The only contact Ms. Green had with Timothy was through a letter he sent after being

served with the termination petition, wherein he asked to be present for the termination

hearing. Ms. Green stated that the children could not be safely placed with either parent

due to both parents’ incarceration, and she thought termination of both parents’ parental

rights was in the best interest of the children.

       Dorletha testified and acknowledged being incarcerated, with her most recent charge

being public intoxication. Dorletha testified that after her children were removed from her

home she “started drinking real heavy and getting into trouble because it felt like [she] lost

everything.” However, Dorletha stated that she loves her children and that, were she not

incarcerated, they could be returned to her.

       Timothy testified that he was incarcerated in September 2014 for a battery conviction

and that his earliest release date would be in September 2017, which was ten months after

the termination hearing. Timothy stated that he was served with a copy of the original

emergency petition in prison on May 21, 2015. However, Timothy testified that he was

never served with, nor did he ever receive, any order, notices, or any type of


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communication from DHS or the court for the next fifteen-plus months. Timothy testified

that he was not provided a copy of the case plan or notice of any of the interim hearings,

and that he was never offered any services by DHS. The first time he received any

communication from DHS was when he was served with the petition for termination of his

parental rights on or about September 15, 2016. Timothy stated that, during that fifteen-

month period, he was indigent and that nobody had asked him if he wanted a lawyer to

represent him. After Timothy was served with the petition for termination, he wrote a

letter requesting counsel and was appointed counsel. Timothy stated that he had not

abandoned his children and did not want his parental rights terminated.

       We first address Dorletha’s argument on appeal, which is that the trial court clearly

erred in finding statutory grounds to terminate her parental rights. The first ground found

by the trial court was that, under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a), the children

were adjudicated dependent-neglected and had been out of Dorletha’s custody for twelve

months, and that despite meaningful DHS efforts to rehabilitate the parent and correct the

conditions that caused removal, those conditions had not been remedied by the parent.

Dorletha argues that this ground was not sufficiently proved because there was a lack of

evidence that she failed to remedy the conditions causing removal. Dorletha asserts that the

condition that caused removal was inadequate supervision of the children, while the proof

supporting the trial court’s order was not inadequate supervision but rather Dorletha’s

alcohol abuse and frequent incarcerations, which were problems unrelated to the condition

that caused removal.




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       The remaining ground found by the trial court was that, under Arkansas Code

Annotated section 9-27-341(b)(3)(B)(vii)(a), other factors or issues arose demonstrating that

the return of the children to Dorletha was contrary to the children’s welfare, and that despite

the offer of appropriate family services, the parent manifested the incapacity or indifference

to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances which

prevent the return of the juveniles to the parent’s custody. Dorletha contends that the trial

court erred in finding that this ground was satisfied because DHS failed to prove that it

offered appropriate family services for Dorletha’s mental-health issues, which she claims

contributed significantly to her persistent criminal troubles. For these reasons, Dorletha

submits that the order terminating her parental rights should be reversed.

       Only one ground is necessary to terminate parental rights. Wafford v. Ark. Dep’t of

Human Servs., 2016 Ark. App. 299, 495 S.W.3d 96. We uphold the termination of

Dorletha’s parental rights based on our conclusion that the trial court did not clearly err in

finding that DHS proved the “other factors” ground under subsection (b)(3)(B)(vii)(a) of

the termination statute.

       In this case there can be no doubt that other factors arose after the children were

removed from Dorletha’s custody, which included her persistent alcohol abuse, even after

completing alcohol rehabilitation, and her ongoing criminal troubles that resulted in

seventeen incarcerations during the case. Dorletha’s incarcerations compromised her ability

to visit the children, and she remained in jail at the time of the termination hearing.

Dorletha does not appear to contest the sufficiency of the proof as to these other factors that

showed the juveniles could not be safely returned to her custody, but instead claims that


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DHS failed to offer appropriate services. We cannot agree. The record demonstrates that

Dorletha did receive DHS services throughout this case, including a rehabilitation program

that was unsuccessful in remedying her problem with alcohol. The testimony of the

caseworker demonstrated that Dorletha’s alcohol abuse and related criminal problems were

the factors preventing the return of the children to her custody, and the trial court found

that Dorletha manifested the incapacity or indifference to remedy these issues. Although

there was some testimony suggesting that Dorletha also had mental-health issues, these issues

were not the basis for the termination. We hold that the trial court did not clearly err in its

finding that appropriate family services were offered to Dorletha, and we affirm the

termination of her parental rights based on the “other factors” ground.

       We now turn to Timothy’s appeal of the termination of his parental rights. Timothy

argues that the trial court clearly erred in finding that he had abandoned his children, which

was the only statutory ground pled in support of DHS’s termination petition. 1 Timothy

also argues that his termination should be reversed because he was not appointed counsel

until shortly before the termination hearing, and because DHS failed to serve him with the

case plan or any pleadings (other than the initial dependency-neglect petition and

termination petition) or secure his attendance or participation in any of the hearings before



       1
         DHS did not allege in its petition the “imprisonment” ground under Arkansas Code
Annotated section 9-27-341(b)(3)(B)(viii), which allows for termination when the parent is
sentenced in a criminal proceeding for a period of time that would constitute a substantial
period of the juvenile’s life. At the termination hearing, DHS moved to allow the pleadings
to conform with the evidence to permit it to rely on the unalleged “imprisonment” ground
to justify termination. However, the trial court denied the motion. Therefore, our review
is limited to the only statutory ground alleged by DHS in the petition and found by the trial
court, which was abandonment.
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the termination hearing. We agree on this record that the trial court clearly erred in finding

that Timothy had abandoned the children as defined by Arkansas Code Annotated section

9-27-303(2)(A), and therefore we reverse the termination of his parental rights on that basis.

       Arkansas Code Annotated section 9-27-303(2)(A) contains the definition of

“abandonment,” and it provides:

       (2)(A) “Abandonment” means:
          (i) The failure of the parent to provide reasonable support for a juvenile and to
       maintain regular contact with a juvenile through statement or contact when the
       failure is accompanied by an intention on the part of the parent to permit the
       condition to continue for an indefinite period in the future;
          (ii) The failure of a parent to support or maintain regular contact with a child
       without just cause; or
          (iii) An articulated intent to forego parental responsibility.

       The evidence in this case showed that Timothy was in prison when the children

were taken into DHS custody and remained in prison throughout the entirety of this

proceeding. Timothy did receive notice of the emergency-custody petition while in prison.

However, there is no evidence that Timothy was served with the emergency order of

custody as required by Arkansas Code Annotated section 9-27-314(c)(1)(A). 2 So the only



       2
         The dissenting opinion suggests that Timothy did receive the emergency-custody
order. However, from our review of the record and the briefs, we conclude otherwise.
The summons sent to Timothy at the beginning of the case states that “a lawsuit has been
filed against you” with proof that he was served with the summons and complaint. The
proof of service does not indicate that Timothy received the emergency order, which would
typically appear at the “other” section of the document, which was left blank. At trial,
Timothy testified that he received the petition. In appellant’s brief, he states that he only
received a copy of the petition and not the order. And this does not appear to be disputed
by DHS, who states in its brief that “Brinkley’s failure to visit the children occurred despite
being on notice that the Department was requesting custody of his children. He was served
with a summons and petition on June 2, 2015, which clearly explained that ‘the children were
removed from the physical custody of Lambert.’ Brinkley’s own testimony further
confirmed that he received the petition.” (emphasis ours).
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information that the record reflects that Timothy had was that a 72-hour hold of the children

had been taken, with no proof that there had been any court order of removal. Subsequent

to that notice, Timothy received no assistance, guidance, or even minimal contact from

DHS as to what he needed to do to comply with the case plan or contact his children for

over fifteen months. In fact, it is undisputed that Timothy never even received the case plan,

and that despite that omission, the trial court’s orders repeatedly found him to be in

noncompliance with a case plan of which he had no knowledge. By the DHS caseworker’s

own testimony, DHS had no contact with Timothy at all throughout the case and offered

no services.

       Although appropriate services is not an element of the statutory abandonment

ground, we conclude that the complete lack of services, communication, or guidance by

DHS in this case is relevant in deciding whether Timothy abandoned his children.

       In Friend v. Arkansas Department of Human Services, 2009 Ark. App. 606, 344 S.W.3d

670, we wrote:

       Although imprisonment imposes an unusual impediment to a normal parental
       relationship, it is not conclusive on the issue of termination. Crawford v. Ark. Dep’t
       of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Nevertheless, a parent’s
       imprisonment does not toll his responsibilities toward his child. Malone v. Ark. Dep’t
       of Human Servs., 71 Ark. App. 441, 30 S.W.3d 758 (2000). Tolling a parent’s
       obligations to comply with reunification orders while he is in jail would be contrary to the
       goal of the juvenile code to provide permanency for the child. Id.; see also Zgleszewski
       v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976). The appropriate inquiry where a
       parent has been ordered to comply with a court’s reunification orders and is incarcerated is
       whether the parent utilized those resources available to maintain a close relationship with the
       child. Malone, supra.

2009 Ark. App. 606, at 12−13, 344 S.W.3d at 677 (emphasis added.) Although Zgleszewski,

supra, cited above, involved the adoption of a child by a stepparent and was decided under


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prior law, the supreme court in that case characterized abandonment as an indication that

the parent deserted, forsook entirely, or relinquished all connection with or concern in the

child.

         In Bradbury v. Arkansas Department of Human Services, 2012 Ark. App. 680, 424

S.W.3d 896, the appellant’s parental rights were terminated based on the trial court’s finding

that he had abandoned the child. Even though the appellant had been incarcerated during

the majority of the case, we stated that whether his incarceration constituted abandonment

under the statute was questionable. More importantly, however, we affirmed on the basis

that DHS had also alleged the “other factors” statutory ground and that, although the trial

court made no specific finding on this ground, it was nonetheless proved. In holding in our

de novo review that the “other factors” ground was proved, we relied on evidence that the

appellant had failed to comply with the case plan or avail himself of DHS services, and that

he had an explosive temper and was facing a possible prison sentence of thirty years.

         That cannot be said in the present case. In stark contrast to the appellant in Bradbury,

Timothy received no services from DHS, nor was he even provided with the case plan or

any orders of the court, so it cannot be said that he failed to avail himself of services or was

in willful noncompliance. Furthermore, unlike Bradbury, in this case the only statutory

ground alleged by DHS and found by the trial court was that Timothy had abandoned his

children. 3 The trial court’s findings in the termination order in support of abandonment

were as follows:



         3
             See footnote 1.


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       The father has had no contact with the department during the pendency of this case,
       and he has not visited with the juveniles during that period. The father had no just
       cause. No evidence that he ever requested counsel prior to the TPR, or that he
       requested services at any time.

Limiting our analysis to this single ground, as we must, we conclude that the trial court

clearly erred in this regard. Timothy testified that, although he was incarcerated during the

entire proceedings, he did not abandon his children, and during his incarceration he was

not included as a participant in the case despite the fact that DHS had actual knowledge of

his location and address. We hold that this does not rise to the level of abandonment under

a clear-and-convincing standard as defined by Arkansas Code Annotated section 9-27-

303(2)(A), and therefore we reverse the termination of Timothy’s parental rights. 4

       Having concluded that there was a sufficient statutory ground to support the

termination of Dorletha’s parental rights, we affirm the trial court’s termination order as to

her. Based on our holding that the trial court clearly erred in finding that the ground of

abandonment alleged against Timothy was proved by clear and convincing evidence, we

reverse the termination of Timothy’s parental rights.

       Affirmed in part; reversed and remanded in part.

       ABRAMSON, VIRDEN, GLADWIN, GLOVER, and MURPHY, JJ., agree.

       KLAPPENBACH, VAUGHT, and BROWN, JJ., dissent.

       LARRY D. VAUGHT, Judge, dissenting. I join the majority opinion as to the

appeal brought by the mother, Dorletha Brinkley, but I dissent because I would also affirm

as to the father, Timothy Brinkley.


       4
       Because we hold that there was insufficient evidence to support the termination, we
need not specifically address Timothy’s remaining arguments.
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       On May 11, 2015, the appellants’ three minor children were removed from

Dorletha’s custody after she left them unsupervised. Timothy was incarcerated at the time

and remained so throughout the case. It is undisputed that Timothy was adequately served

with the petition for emergency custody. 5 It is further undisputed that Timothy did nothing,

and the case proceeded without his presence or involvement until (DHS) filed a motion to

terminate, at which time he was appointed counsel. The court terminated Timothy’s

parental rights based on the finding that he had abandoned the juveniles.

       The issue on which the majority and I disagree is whether Timothy’s incarceration,

combined with DHS’s failure to have any contact with him throughout the case, excuses

his complete lack of interest in his children. I maintain that it does not and would affirm the

circuit court’s abandonment finding. Despite knowing that he has children and that those

children had been taken into DHS custody, Timothy did nothing for approximately

eighteen months. He did not contact DHS or the court; did not request visitation or other

services; did not request an attorney or try to participate in the case; and most importantly,

for more than a year and a half, Timothy made no effort to contact his children.

       Under the statute, abandonment can be established by “[t]he failure of a parent to

support or maintain regular contact with a child without just cause.” Ark. Code Ann. § 9-

27-303(2)(A)(Repl. 2015). Here, the majority accepts the circuit court’s finding that

Timothy had no contact with his children. The only issue we must resolve is whether

Timothy’s failure to maintain any contact with his children was “without just cause.”


       5
       While the majority and I disagree on whether the evidence also demonstrates that
Timothy received the court’s initial ex parte order granting emergency custody, that issue
does not ultimately matter in determining whether he abandoned his children.
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       While the majority acknowledges that a finding that DHS provided “appropriate

services is not an element of the abandonment statutory ground,” it goes on to find that the

lack of such services is “relevant in deciding whether Timothy abandoned his children.” I

disagree. DHS’s failure to provide appropriate services (something that is not required in an

abandonment case) has no bearing on whether a parent attempts to contact his or her

children. The majority has not pointed to, and cannot point to, any particular services, the

lack of which prevented Timothy from writing a letter or sending a birthday card to his

children.

       Although it is clear that Timothy made no effort whatsoever to maintain a

relationship with his children, the majority holds that “this does not rise to the level of

abandonment under a clear and convincing standard.” I fail to see how Timothy could have

done any less. Therefore, I fear that the majority is setting the precedent that an inmate can

never legally abandon his or her child. Incarceration does not make a person helpless, and

Timothy has never claimed that his incarceration or lack of DHS services prevented him

from attempting to contact his children. This decision devalues the efforts incarcerated

parents take every day to maintain the bond with their children.

       It also defies legislative intent. The practical effect of the majority’s decision will be

to require DHS to provide family services to incarcerated parents who have demonstrated

no interest in maintaining a parent-child relationship. The Arkansas General Assembly chose

not to include this requirement. While several other statutory grounds for termination

require a showing that DHS provided “meaningful efforts,” the abandonment ground does

not. It is reasonable to infer that the Arkansas General Assembly determined that it would


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be a waste of time and resources to require DHS to provide expensive and time-consuming

family services to a parent who shows no interest in being a parent. I dissent from the

majority’s decision because it effectively grafts a “meaningful efforts” requirement onto the

abandonment ground in defiance of legislative intent and at the expense of the children at

the heart of all such cases who deserve permanency.

KLAPPENBACH and BROWN, JJ., join.

       Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant Dorletha

Brinkley Lambert.

       Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Timothy

Brinkley.

       Mary Goff, Office of Chief Counsel, for appellee.

       Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.




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