                                     2015 Ark. App. 564


                  ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       N". CV-15-497

EMERSON GREGRICH             and   JAMIE          opinion Delivered   October 7,2015
GREGRICH
                              APPELLANTS          APPEAL FROM THE BENTON
                                                  COUNTY CIRCUIT COURT
V.                                                INO.]V-2014-771

                                                 HONORABLE THOMAS SMITH,
ARKANSAS DEPARTMENT OF                           JUDGE
HUMAN SERVICES
                                   APPELLEE       AFFIRMED



                               CLIFF HOOFMAN, Judge

       Appellants Emerson andJamie Gregrich appeal from an order of the Benton Counry

Circuit Court terminating their parental rights. On appeal, appellants' sole contention is that

the circuit court abused its discretion in denying their request to continue the termination

hearing until after the circuit court held a hearing on whether the juveniles would be placed

with the paternal grandmother, Pamela Gregrich. 'We affirm.

       The Arkansas Department ofHuman Services (DHS) filed           a   petition and an amended

petition for emergency custody and dependency-neglect of A.G. and K.G. onJanuary 27,

2014. In the afEdavit attached to the amended petition, DHS stated that a report was made

that K.G. was left unattended at home while Emerson andJamie left to "shoot up meth." In

a subsequent   investigation, Emerson andJamie admitted to using drugs, and       a   sevenry-two-

hour hold was placed over the children onJanuary 24,201,4. The circuit court granted the

petition on January 27, 2074, finding that probable cause existed for the removal, and the
                                         2015 Ark. App. 564


court appointed an attorney ad litem for the children. Subsequently, the circuit court filed

a probable-cause order on January 28,       2014. An adjudication hearing was   ser   for February

25,2074.

          After the adjudication hearing, the circuit court found by a preponderance of the

evidence that the children were dependent-neglected based on the stipulation of rhe pafties

and noted that there uras "inadegr-rate lr.lpqrvision bv both parents due to substance abuse."

At that time, the goal was set as reunification. Additionally, the parents were ordered to

complete marriage counseling in addition to the other case plan services in a May 20, 2014

review order. After an August 72,zll4review hearing, the circuit court found thatJamie

was only partially in compliance with the case plan and that Emerson was not in compliance

with the case plan.

          On August 5, 201.4, Pamela Gregrich, the children's paternal grandmother, filed        a


petition to intervene and a petition for adoption. She subsequently 6led a petition for

placement on August 1,4,2014, alleging that DHS denied her placement, that she requested

a hearing to determine placement of the children, and that she had filed a petition for

adoption because she was denied placement. On behalf ofthe children, the attorney ad litem

filed   a response   on September 2, 2074, alieging that the petition to intervene was premature

because parental rights had not been     terminated. Furthermore, the attorney ad litem alleged

that Pamela would need to either obtain DHS's consent or show that DHS was unreasonably

withholding its consent in order to prevail on her petition to adopt, and DHS could not grant

such consent    until after the parental rights had been terminated. DHS filed   a response that
                                       2015 Ark. App. 564


also objected to Pamela's petition to intervene and petition for placement.

        The circuit court changed the goal from reunification to adoption in an October 14,

2074 permanency-planning order. The circuit court found that neither parent was in

compliance and ordered the parents to submit to     a   drug test and provide any documentation

of their progress. DHS filed its formal petition for termination of parental rights on

I!o.-,emt-.er   14 2074. DHS   "Uesed 6ve sena-rate sror,rncls
                                                               for termination under Arkansas

Code Annotated section 9-27-341b)(3XB) (Srpp. 201,3): (1) that the juveniles had been

adjudicated by the court to be dependent-neglected and have 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 the conditions that caused removal, those

conditions have not been remedied by the parent; (2) that the juveniles had lived outside the

home for a period of rwelve (12) months, and the parent had willfully failed to provide

significant material support in accordance with the parent's means or maintained meaningfirl

contact   with the juveniles; (3) that the parent had abandoned     the juveniles; (4) that other

factors or issues arose subsequent to the filing ofthe original petition for dependency-neglect

that demonstrate that placement ofthejuveniles in the custody ofthe parent is contrary to the

juveniles' 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 juveniles

in the custody of the parent; and (5) that the parent had subjected the juveniles to aggravated

circumstances. Subsequently, the circuit coult granted Pamela's petition to intervene as a
                                            2015 Ark. App. 564


party and scheduled a termination hearing and placement hearing for February 10, 2015.

         At the hearing,    appellants requested the circuit court        to continue the termination

hearing until after the placement hearing, which was scheduled the same day. Appellants

reasoned that   if the circuit court would grant       Pamela's motions, then they would both sign

a   consent. Although counsel did not provide         a   specific case cite at the time,Jamie's attomey

,lluded to this cor-lrt's   reversa-l   of the circrrit 4sr.rrt's denial of a motion for continuance in

Rhinev, Arkansas Departmentof Human Seruices,101 Ark. App.370,278 S.W.3d 118 (2008).

DHS and the attorney ad litem argued that the termination hearing should be held first

because there    would be no need for a placement hearing or adoption until after the

termination ofparental rights. Additionally, DHS noted that appellants were essentially asking

the circuit court for an advisory opinion.

        After a lengthy discussion, the circuit court denied appellants' motion for                    a


continuance. In its discussion and oral ruling, the circuit court explained that it had already

protected Pamela's interest by allowing her to intervene. The circuit court also expressed its

concern that appeliants were asking for an advisory opinion and that            it did not want to give

them "false hope" because the issue of placement was only one step. The issue of adoption

and the "question of whether or not DHS [was] unreasonably withholding consent" to

Pamela's petition for adoption would still be at issue. Furthermore, the circuit court explained

that it did not want to move the children back and forth but wanted to address the issues             of

whether Pamela would be appropriate for placerrient and adoption after the termination.

              I have never agreed to remove these kids until it was going to be final as to who
        was going to adopt these kids.
                                     2015 Ark. App. 564


              Because, it's been my understanding, they're either going to be adopted by the
       home that they're in, or I'm going to place them with grandma and let her do the
       adoption. That's where this whole thing has been heading.
              And I know that's what I told grandma last time. When I said I'd let you
       intervene and come in and look. I had to protect your rights. Bur IDHS is] still the
       custodian, and they still have the right to consent, or not consent.
              And I'm going to have to prove that they're -- if they're never going to
       consent, no matter what I say about grandma's placement, it's going be factors of
       whether or not they're unreasonably withholding it. That's the whole issue in this
       case. That's what it will boil down ro.
              So that's kind of where we'!:e at. I do not know how we can do this any other
       way.
               I think I've been more than fair with these parents to make sure that they know
       that they're going to have a grandmorher in the fight on the adoption; and thatls really
       all I can do. But ['m only doing it once.

       At the termination hearing, both parents testified that they were incarcerated and had

a history of drug abuse. Additionally, testimony was introduced to show that the children

were adoptable, that the children would potentially be harmed if retumed to the parents, and

that the termination was in the best interest of the children. The circuit court filed an order

terminacing parental rights on March 10, 2015, finding that DHS had proved by clear and

convincing evidence that four out ofthe five alleged statutory grounds existed.l Additionally,

the circuit court found chat it was in the best interest of the children to terminate Emerson's

andJamie's parental rights, considering the iikelihood that the children would be adopted and

the potential harm to the children's health and safery if returned to the parents' custody. As

such, the circuit court terminated both parents' parental rights. This appeal followed.

       Appellants do not contest the sufficiency ofthe evidence supporting the circuit court's




       ' The circuit court did not find that DHS had proved the third statutory ground
alleged in its petition-that the parents had abandoned the juveniles.

                                               5
                                      2015 Ark. App. 564


decision to terminate their parental rights. Instead, they contend that the circuit court abused

its discretion in denying their request to continue the termination hearing until after the

circuit couft held a hearing on whether the juveniles would be placed with the patemal

grandmother. In a joint responsive brief, DHS and the attomey ad litem disagree.2

       It is well settled that the granting or denial of a motion for continuance is within the

sound discretion of the circuit court, and the circ'-rit cot-rt's decrsion      will not he reversed

absent an abuse of discretion amounting to a denial    ofjustice.   Renfro u.   Ark. Dep't   of Human


9erus.,2011   Ark. App. 41.9,385 S.'W.3d 285. An   abuse of discretion occurs when a court acts

improvidentlyandwithoutdueconsideration. Jordanu.Ark.Dep'tofHumanSerus.,2011Ark.

App.592. Additionally, the appellant must show prejudice from the denial of a motion for

continuance. Renfto,   supra.


       Appellants suggest that this court's decision in Rhine, supra, is controlling. ln Rhine,

this court held that a circuit court abused its discretion when it denied a mother's motion for

continuance to allow her to execute   a consent and   waiver so that her mother could adopt her

chiid. Id. There, a continuance would have accomplished a quicker perrnanency for the child

than if the court proceeded with an ordinary termination case because the rights of the father

would still had to have been terminated at a later date. Id. However, the circuit court denied



       2
         Appellees also allege that appellants failed to preserve their argument because they
did not specifically make a "motion for a continuance." Flowever, we note that although
counsel for appellants did not use the specific word "continuance," they clearly requested the
court co hold a hearing on the grandmother's motion before holding a hearing on the
termination of parentai rights. Therefore, appellants' argument is preserved for purposes of
this appeal.
                                         2015 Ark. App. 564


the motion for continuance after it considered that the attorney for DHS would be on

vacation, that there was an upcoming training, and that, if a continuance was granted, the

termination hearing would go beyond the ninery-day time limit established by Arkansas Code

Annotated section 9-27-341(d).          Id.      This court explained that the circuit court failed to

exercise its discretion under section 9-27-341(d) to go beyond the ninety-day                limit upon a
€ndinc' nf c'ncr{ .i!.!qe e.-,en l&er the
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attention. Id. Therefore, under those circumstances, we held that the circuit court                 abused

its discretion in denying Rhine's motion for a continuance. Id.

        The facts of this case, however, are more akin to Jordan u. Arkansas Department of

Human 9erus.,2011 Ark. App.592. Jordan requested              a   continuance to consider the possibility

that she might consent to the termination of herparental rights.               Id.   She also appeared to

condition her consent on the outcome of the hearing, asking the court to consider her

consent   if it was inciined to terminate her parental rights. Id. This court held that under

those circumstances, there was no abuse of discretion as the court did not act improvidently

in going forward with a decision based on the evidence at the termination hearing. Id. As

in Jordan, appellants moved for a continuance and announced that they were considering

whether to consent to the termination on the condition that the court would ultimately grant

Pamela custody and allow her           to   adopt the children. Furthermore, the circuit court

thoroughly discussed and considered the motion at the hearing. As such, we cannot                  say that


the trial court abused its discretion       as   the court did not act improvidently or without due

consideration   in going forward with a decision            based    on the evidence presented at the


                                                       7
                                       2015 Ark. App. 564


 termination hearing, and we affirm.

       Affirmed.

        GraowtN, CJ., and WUITEAKER, J.,       agree.

      Tabitha McNulty, Arkansas Public Defender Commission, Dependency-Neglect
Appellate Division, for appellants.

      Mischa K. Martin, County Legal Operations, for appellee.

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