APPELLANT

V.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-473

December 10, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, TENTH DIVISION

[NO. JN 02-1560]

HON. JOYCE W. WARREN,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

This termination-of-parental-rights case involves an infant. Appellant had had her parental rights to three older children terminated on the grounds of the father's drug use and environmental neglect. Services were provided for almost two years without adequate results. The infant involved in the present case was born during the pendency of the earlier proceedings, and was removed immediately after its birth. After appellant's parental rights were terminated vis-a-vis the other children, the Arkansas Department of Human Services filed a motion to be allowed to provide no reunification services with respect to the infant on the grounds that rights had previously been terminated to siblings, arguing that no progress had been made despite the provision of services in the earlier cases, and that it would be fruitless to provide more. The trial court agreed and, after a hearing, appellant's parental rights to the infant were terminated. This appeal followed.

For reversal, appellant contends that the trial court erred in ordering that no reunification services be provided, and in ordering that the infant should be placed for adoption rather than with a relative. We find no error, and we affirm.

Arkansas Code Annotated § 9-27-303 (43)(C) (Repl. 2002) expressly provides that reasonable efforts to reunite a child with his parent or parents shall not be required in all cases. Reunification is specifically not required if a court of competent jurisdiction has determined by clear and convincing evidence that the parent has had parental rights involuntarily terminated as to a sibling of the child. Ark. Code Ann. § 9-27-303 (43)(C)(vi). The above-cited statute plainly states that reunification services are not required where parental rights have been involuntarily terminated as to a sibling of the child. Appellant's argument to the contrary is essentially a collateral attack on the prior termination orders. She asserts that she was not adequately represented by counsel in the prior proceedings, and argues that the orders resulting therefrom should not be held against her. However, appellant attempted to raise this issue in her direct appeal from the order terminating her parental rights to her two eldest children, and we held that she was barred from doing so because she failed to file a timely appeal. Forrest v. Arkansas Department of Human Services, CA03-125 (not designated for publication) (op. del. September 3, 2003). The doctrine of law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless there is a material variance in the evidence before the court in each appeal. Miller County v. Opportunities, Inc., 334 Ark. 88, 971 S.W.2d 781 (1998). The doctrine is not limited to issues raised in prior appeals as it was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. Id. Because we have previously held that appellant was barred from raising this precise issue in a prior appeal, the doctrine of law of the case precludes it from being presented in the present appeal.

Appellant also argues that the trial court erred in ordering that the infant should be placed for adoption rather than with a relative. The trial court addressed this issue, ruling that adoption would be in the child's best interests because the relative's situation was uncertain and because adoption was a more permanent plan than relative placement in the statutory hierarchy. The trial court was correct. The applicable statute provides that termination of parental rights is to be preferred to appointment of a guardian or permanent custodian unless the child is presently being cared for by a relative and termination of parental rights is not in the child's best interest. Ark. Code Ann. § 9-27-338(a)(4) (Repl. 2002). In the present case, it is undisputed that the infant was not currently being cared for by the relative at the time of the hearing; therefore, guardianship or custody by the relative is, by statutory definition, less preferable than termination of parental rights. Under these circumstances, we cannot say that the trial court erred in ordering that the infant should be placed for adoption rather than with a relative.

Affirmed.

Robbins and Roaf, JJ., agree.