Ark. Code Ann. § 9-27-338 (2026)

Case Notes

In General.

In a termination of parental rights case, the trial court is required to hold a permanency planning hearing no later than 12 months after the date the juvenile enters an out-of-home placement or no later than 30 days after the court files a no-reunification order; this “or” disjunctive located in the language of the statute does not provide the court with merely one option as to when it can hold a permanency planning hearing, but rather, the “12 month” language provides the court the option to hold the hearing even before it has filed the no-reunification order. Phillips v. Ark. Dep't of Human Servs., 85 Ark. App. 450, 158 S.W.3d 691 (2004) (decided in part under prior version of § 9-27-341).

Order terminating mother's parental rights to her three children pursuant to § 9-27-341 was upheld as the trial court did not err in placing the oldest child in the custody of a family friend; subsection (c) of this section clearly anticipated that one of the “goals” could be a plan for permanent custody. Griffin v. Ark. Dep't of Health and Human Servs., 95 Ark. App. 322, 236 S.W.3d 570 (2006).

Applicability.

Once the juvenile court took jurisdiction of a matter as a dependent-neglect case, the Juvenile Code provisions became applicable; that being so, the juvenile court was obliged to provide for periodic reviews under this section and § 9-27-337. Nance v. Ark. Dep't of Human Servs., 316 Ark. 43, 870 S.W.2d 721 (1994).

There is no authority for a juvenile court to dismiss dependent-neglect proceedings when the parties all comply with the case plan and reasonable efforts are being made by all concerned; periodic review should be continued, regardless of such compliance. Nance v. Ark. Dep't of Human Servs., 316 Ark. 43, 870 S.W.2d 721 (1994).

Nothing in this section prohibited the trial court from holding a permanency planning hearing immediately, given that it had already provided notice of no reunification and the DHS's petition to terminate; in addition, the trial court's subsequently termination of the parents' parental rights was not error when, under § 9-27-341, the fact that the parents had had their parental rights terminated as to their other children was an immediate ground for termination. Phillips v. Ark. Dep't of Human Servs., 85 Ark. App. 450, 158 S.W.3d 691 (2004) (decided in part under prior version of § 9-27-341).

Mother who was denied reunification with her daughter and who contended that a circuit court erred in using a previous version of this section, rather than the amended version, waived her contention that the amended version should have been applied by failing to object at the circuit court level. Lamontagne v. Ark. Dep't of Human Servs., 2010 Ark. 190, 366 S.W.3d 351 (2010).

Best Interest of Child.

Circuit court erred in granting permanent custody of a child to a grandmother; while it was not appropriate to return him to his mother at the time of the permanency-planning hearing, there was insufficient evidence to find that placement could not occur within three months and it was not in the child's best interest where the mother was in compliance with her case plan and was making significant progress toward remedying the conditions that caused the child's removal. Contreras v. Ark. Dep't of Human Servs., 2014 Ark. 51, 431 S.W.3d 297 (2014).

Placement with the father's sister was far from an immediately available alternative for the children, as the sister was equivocal about the placement, the children were thriving in their foster home, with foster parents interested in adopting them, and they needed permanency, plus the father had been sentenced to a lengthy prison term, which supported a finding that termination and adoption would be in their best interest, and the finding was not clearly erroneous. Gyalog v. Ark. Dep't of Human Servs., 2015 Ark. App. 302, 461 S.W.3d 734 (2015).

Trial court properly found that it was not in the children's best interest to be permanently placed in the relatives' custody because the relatives did not believe that the mother abused the children and a forensic psychologist opined that it would be psychologically damaging to the children to be placed with relatives who did not believe that they had been abused by their parent. Ferguson v. Ark. Dep't of Human Servs., 2016 Ark. App. 258, 492 S.W.3d 880 (2016).

Trial court did not clearly err in finding that permanent custody of the 15-year-old juvenile with the foster parents, under subdivision (c)(6) [now (c)(7)] of this section (“Authorizing a plan to obtain a permanent custodian, including permanent custody with a fit and willing relative”), was in the juvenile's best interest; the testimony demonstrated that the mother had significant and chronic financial issues, was noncompliant with the Department of Human Services and the case plan, had mental health issues, and the juvenile strongly preferred not to be returned to the mother. Donham v. Ark. Dep't of Human Servs., 2017 Ark. App. 698, 536 S.W.3d 675 (2017).

Change in Case Goal.

In a case involving termination of parental rights, it was not error to change a case-plan goal from reunification to adoption at a permanency-planning hearing because the child could not have been returned to a fit parent and was not being cared for by a relative at the time of the hearing. Roberts v. Ark. Dep't of Human Servs., 2016 Ark. App. 226, 490 S.W.3d 334 (2016).

Parents' challenge to an intermediate permanency-planning order lacked merit where they were provided a reunification opportunity through a subsequent trial home placement and thus were not harmed by a change in case goal to include concurrent goals of adoption and reunification at the time of the permanency-planning hearing. Bean v. Ark. Dep't of Human Servs., 2017 Ark. App. 77, 513 S.W.3d 859 (2017).

Circuit court did not clearly err in determining a permanency plan for a mother's children because the court found that the mother failed to make significant measurable progress to achieve stability and that respective goal changes for the children were in their best interest. Johnston v. Ark. Dep't of Human Servs., 2017 Ark. App. 615, 534 S.W.3d 200 (2017).

Circuit court did not clearly err in changing the goal in the case from reunification to termination and adoption because the mother had failed to protect her children as she dismissed the order of protection and allowed her husband to move back into the family home after the eldest child accused him of sexual abuse; and, while the mother contended on appeal that her separation from her husband constituted significant progress toward remedying the conditions that caused removal, she chose to ignore the court's orders for almost a year before finally separating from her husband one month before the permanency-planning hearing. Drane v. Ark. Dep't of Human Servs., 2019 Ark. App. 256, 576 S.W.3d 550 (2019).

Construction With Other Law.

Where the petition to terminate parental rights was filed 69 days after the permanency-planning hearing, contrary to the 30-day requirement in subsection (g) of this section, the circuit court was not required to dismiss the petition or hold a second permanency-planning hearing. Section 9-27-341(b)(1)(B) provides that a permanency-planning hearing is not required as a prerequisite to termination and the statutes do not provide a remedy for late filing. In addition, prejudice was not shown, and time is viewed from the juvenile's perspective in termination cases. Faussett v. Ark. Dep't of Human Servs., 2017 Ark. App. 168 (2017).

Circuit court erred in failing to hold a permanency-planning hearing because by choosing to hold a termination of parental rights hearing before such a hearing, it placed itself in a position of determining whether a hearing was required, contrary to the mandatory language of the statute; however, to reverse the order terminating parental rights would be perfunctory in purpose given the record and contrary to the best interests of the children, who had already been out of the home. McKinney v. Ark. Dep't of Human Servs., 2017 Ark. App. 475, 527 S.W.3d 778 (2017).

While a termination of parental rights petition may be filed and considered prior to a permanency-planning hearing, there is nothing in § 9-27-341 or § 9-27-338 that permits the circuit court to abdicate its duty to hold a permanency-planning hearing altogether. McKinney v. Ark. Dep't of Human Servs., 2017 Ark. App. 475, 527 S.W.3d 778 (2017).

Custody Award.

Where a mother made unsubstantiated sexual abuse allegations, a trial court did not err by awarding custody to a father in a family-in-need-of-services case under this section, because it was not in the child's best interest to return to the mother where the child was doing better while not in her custody; moreover, the father did not have to show a material change in circumstances since this was not a regular custody proceeding. Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007), overruled in part, Mahone v. Ark. Dep't of Human Servs., 2011 Ark. 370, 383 S.W.3d 854 (2011).

After a permanency hearing, the circuit court did not clearly err in placing the child in the custody of his mother under subsection (c) of this section; less than 14 months prior to the final hearing, the father hit the child with the ruler. The child thrived in his mother's care, while the father needed to continue with therapy and complete anger-management classes. Collier v. Ark. Dep't of Human Servs., 2009 Ark. App. 565 (2009).

Order granting foster parents' petition for adoption of a child and dismissing a maternal grandmother's petition for guardianship was proper because the trial court did not err by giving effect to the statutory preference for adoption. Davis-Lewallen v. Clegg, 2010 Ark. App. 627, 378 S.W.3d 185 (2010).

Trial court did not err under subsection (c) of this section in determining that an award of permanent custody to a maternal grandmother was in a child's best interest because it was contrary to the child's health and safety to be returned to the child's mother; the mother failed to maintain steady employment or a stable residence and had numerous criminal charges in the past several years. Beeson v. Ark. Dep't of Human Servs., 2011 Ark. App. 317, 378 S.W.3d 911 (2011).

Award of permanent custody of the children to their maternal grandmother was inappropriate because the first statutory preference, under subdivision (c)(1) of this section, applied to the father since he was a parent of the children. The first preference of the statute was not to return the child to the parent from whom he had been taken. Mahone v. Ark. Dep't of Human Servs., 2011 Ark. 370, 383 S.W.3d 854 (2011).

Trial court erred in awarding permanent custody to maternal grandparents because while the children's father had some issues to resolve, since the case was commenced, a mere six months before the trial court awarded the grandparents custody, he had no positive drug tests, maintained employment, and was living in an approved housing situation with his parents; the father fell into the first preference category in subsection (c) of this section while the grandparents fell into the fifth category. Chase v. Ark. Dep't of Human Servs., 2012 Ark. App. 311, 416 S.W.3d 252 (2012).

Court erred in awarding custody of a father's two children to the maternal grandparents because it was inconceivable that the court could find the father unfit and untruthful because of a twelve-dollar difference between an earlier affidavit and pay stubs, and even though there was evidence regarding use of alcohol and allegations of “kicking” his child, visitation was not limited. Chase v. Ark. Dep't of Human Servs., 2013 Ark. App. 474, 429 S.W.3d 321 (2013).

Maternal grandparents were properly awarded permanent custody of a child because the child could not have been returned to a mother within 3 months; the mother's testimony about her drug use and rehabilitation efforts was untruthful, and she did not comply with the case plan or court orders relating to drug use, stable housing, and stable employment. Moreover, the mother had not made substantial progress toward remedying the conditions causing the removal. Ragsdale v. Ark. Dep't of Human Servs., 2014 Ark. App. 159 (2014).

In a dependency and neglect case, a trial court did not err by awarding custody of a child to his biological father because the term “the parent” under subsection (c) of this section did not mean only the parent from whom the child was removed, but instead meant either parent. The question was not whether the mother had remedied the cause for the child's removal, but instead whether the trial court clearly erred in finding that it would be in the child's best interest to be returned to his father, rather than the mother; the trial court could have reasonably concluded that the father demonstrated greater stability and little susceptibility to the sort of dramatically poor judgment exercised by the mother. Fogerson v. Ark. Dep't of Human Servs., 2014 Ark. App. 232 (2014).

Circuit court's order placing a child in the permanent custody of a family member was affirmed where the mother's arguments essentially asked the court to reweigh the evidence in her favor, a de novo review of the records revealed that the circuit court's findings were not clearly erroneous, and based on the circuit's court's opportunity to judge the credibility of the witnesses, it did not err in determining that permanent custody with the family member was in the child's best interest. Sisemore v. Ark. Dep't of Human Servs., 2016 Ark. App. 187, 487 S.W.3d 824 (2016).

Circuit court's decision to grant custody of a child to his paternal uncle was not clearly erroneous since it was in the child's best interest; moreover, it was contrary to the child's health and safety to be returned to his mother's custody. The mother had a significant history with the Department of Human Services and a long-term alcohol problem; even though she had attended some parenting classes, counseling, and Alcoholics Anonymous meetings, the uncle was able to provide the stability and parental control that the mother could not achieve. Moore v. Ark. Dep't of Human Servs., 2016 Ark. App. 346, 498 S.W.3d 303 (2016).

Circuit court did not clearly err in bypassing the first, second, and third goals of subsection (c) of this rule and placing permanent custody of a child with her paternal grandparents where the mother's current husband posed a danger to the child and her relationship with him was uncertain, and the mother had nine months remaining in a drug-court program, had two recent altercations with the husband, and had recently been arrested for an unresolved warrant. Lansdell v. Ark. Dep't of Human Servs., 2016 Ark. App. 433, 502 S.W.3d 579 (2016).

Circuit court did not err in entering an order awarding permanent-relative custody of two of the mother's minor children to their grandparents because the evidence and testimony supporting the circuit court's potential-harm finding was sufficient; one of the children alleged that the mother's boyfriend sexually assaulted him; the mother insisted that the boyfriend was not a dangerous person for her children to be around and that she never got the full evidence regarding the boyfriend's sexual abuse of her child; and, based on the transcript of the mother's phone call with the boyfriend and the witnesses' testimony, the mother continued to have a relationship with the boyfriend. Arazola v. Ark. Dep't of Human Servs., 2019 Ark. App. 109, 573 S.W.3d 35 (2019).

In a dependency-neglect case, children were not entitled to reversal of an order granting permanent custody to their paternal uncle and aunt, where children argued instead for termination of parental rights and adoption. The circuit court did make a finding that termination of parental rights was not in the children's best interest; further, there is no remedy provided by the legislature for lack of a home study in the home-study requirement set forth in § 9-27-355, and the evidence relied on by the children—that their aunt and uncle were stellar and that the children were thriving there—negated their argument that without a home study, the evidence was insufficient to support custody being placed with the aunt and uncle. Minor Children v. Ark. Dep't of Human Servs., 2019 Ark. App. 588, 589 S.W.3d 495 (2019).

Failure to Preserve.

Mother failed to preserve for appellate review her contention that a trial court's decision to terminate her parental rights was improper where the child had achieved permanency through a custodial placement with a relative under subsection (c) of this section. The mother failed to designate the permanency-planning hearing in her notice of appeal, the transcript of the permanency-planning hearing was not in the record, and there was no indication in the transcript of the termination hearing that the mother ever raised this argument before the trial court. Bryant v. Ark. Dep't of Human Servs., 2011 Ark. App. 390, 383 S.W.3d 901 (2011).

As parents failed to appeal prior reasonable-efforts findings regarding reunification services offered to them pursuant to this section and § 9-27-359, an appellate court was precluded from reviewing those findings for the time periods covered by the prior orders. Anderson v. Ark. Dep't of Human Servs., 2011 Ark. App. 522, 385 S.W.3d 367 (2011).

Goal of Statute.

This section lists termination and adoption as a preference above permanent custodial placement with a relative, which is in keeping with the overall goal of permanency for the juvenile. Gyalog v. Ark. Dep't of Human Servs., 2015 Ark. App. 302, 461 S.W.3d 734 (2015) (decided under prior version of statute).

Public Policy.

According to the public policy of Arkansas, termination and adoption are preferred to permanent relative placement. McElwee v. Ark. Dep't of Human Servs., 2016 Ark. App. 214, 489 S.W.3d 704 (2016) (decided under prior version of statute).

Circuit court did not err in rejecting incarcerated father's request to have his child placed with relatives rather than terminate his parental rights; under this section and according to Arkansas public policy, termination and adoption are preferred to permanent relative placement when the child is not in the care of a relative at the time of the termination hearing. Everett v. Ark. Dep't of Human Servs., 2016 Ark. App. 541, 506 S.W.3d 287 (2016) (decided under prior version of statute).

Termination.

Trial court did not err by following the statutory preference for the termination of parental rights under subsection (c) of this section, even though two children were being cared for by their grandmother, since it was not in the children's best interest to return them to the father due to allegations of physical and sexual abuse. Hall v. Ark. Dep't of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008).

In a termination of parental rights case, a mother was not entitled to additional time to achieve goals for reunification because the mother had a history of drug addiction, and she had been given 16 months to accomplish reunification, yet she was still 15 weeks away from completing her rehabilitation. Stephens v. Ark. Dep't of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160 (2013).

Trial court properly authorized adoption and termination of parental rights because the mother physically abused the children and the father failed to protect them where his lack of attachment and apathy toward the children and passivity and submissiveness to the mother prevented him from making significant, measurable progress toward remedying the conditions that caused removal and from reunifying with the children. Ferguson v. Ark. Dep't of Human Servs., 2016 Ark. App. 258, 492 S.W.3d 880 (2016).

Trial court committed reversible error in changing the goal of a permanency-planning case to termination and adoption where contrary to the court's finding, the undisputed testimony showed that the children were being cared for by their aunt in provisional foster care, and there was no testimony that the placement needed to change or that the aunt was unwilling to continue to care for the children. Adkins v. Ark. Dep't of Human Servs., 2017 Ark. App. 229, 518 S.W.3d 746 (2017).

Although the trial court could have still found that termination of parental rights and adoption was in the children's best interest, the record did not indicate that it had considered the additional factors enumerated in this section because it erroneously found that the children were not being cared for by a relative, and thus a remand was warranted. Adkins v. Ark. Dep't of Human Servs., 2017 Ark. App. 229, 518 S.W.3d 746 (2017).

Circuit court properly terminated the mother's parental rights because the statutory provision for relative placement includes adoption, thus contemplating that parental rights may be terminated even when a relative is available for placement; as the child was not in the custody of a relative at the time of termination, and termination was in the child's best interest, the exceptions in subsection (c) of this section did not apply. Robinson v. Ark. Dep't of Human Servs., 2017 Ark. App. 251, 520 S.W.3d 702 (2017) (decided under prior version of statute).

Trial court did not clearly err in terminating a mother's parental rights where it was open to considering improvements the mother had made after the first permanency-planning hearing, the goal of permanency planning was not changed until after the second permanency planning hearing, and even after the additional time following the second hearing, the mother was still not ready to have the children returned to her custody. Jameson v. Ark. Dep't of Human Servs., 2017 Ark. App. 503, 529 S.W.3d 692 (2017).

Neither § 9-27-338 nor § 9-27-359 required that the mother be given 15 months to improve her situation and parenting skills, especially in light of her failure to improve her parenting skills in the 19-month period before her parental rights to another child were terminated. While it is permissible to allow 15 months (or more) in some cases, it is not a requirement. Benson v. Ark. Dep't of Human Servs., 2018 Ark. App. 65 (2018).

Cited: Ark. Dep't of Human Servs. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992); Moore v. Ark. Dep't of Human Servs., 333 Ark. 288, 969 S.W.2d 186 (1998); Larscheid v. Ark. Dep't of Human Servs., 343 Ark. 580, 36 S.W.3d 308 (2001); Davis v. Ark. Dep't of Human Servs., 2012 Ark. App. 419 (2012); Cox v. Ark. Dep't of Human Servs., 2015 Ark. App. 202, 462 S.W.3d 670 (2015); Villaros v. Ark. Dep't of Human Servs., 2016 Ark. App. 399, 500 S.W.3d 763 (2016); Strickland v. Ark. Dep't of Human Servs., 2018 Ark. App. 608, 567 S.W.3d 870 (2018).