Contreras v. Arkansas Department of Human Services , 431 S.W.3d 297 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CV-13-858
MONICA CONTRERAS Opinion Delivered February 6, 2014
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. JV-12-190]
ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES; CHRISTINE ZIMMERMAN, JUDGE
WILLIAMS; AND J.G., A MINOR
CHILD REVERSED AND REMANDED;
APPELLEES COURT OF APPEALS’ OPINION
VACATED.
KAREN R. BAKER, Associate Justice
Appellant Monica Contreras appeals from the permanency-planning-hearing order and
closure order of the Washington County Circuit Court. The Court of Appeals affirmed the
circuit court’s decision, finding appellant’s argument that the evidence was insufficient was
not preserved. Contreras v. Ark. Dep’t. of Human Servs., 2013 Ark. App. 519, ___ S.W.3d
___. We granted review. When we grant a petition for review, we treat the appeal as if it
had been originally filed in this court. Russell v. Russell, 2013 Ark. 372, ___ S.W.3d ___.
Contreras argues that the circuit court erred in granting permanent custody of her child, J.G.,
to Contreras’s mother, Christine Williams. Contreras contends that there was not sufficient
evidence to show that such placement was in the best interest of J.G.1 We reverse and
1
In a civil, nonjury trial, a party who does not challenge the sufficiency of the evidence
does not waive its right to do so on appeal. Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861
(2000).
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remand the order of the circuit court.
On February 22, 2012, the Arkansas Department of Health and Human Services
(DHS) exercised a seventy-two-hour hold on J.G. pursuant to Arkansas Code Annotated
section 9-27-303 (Supp. 2011). Contreras had dropped J.G. off at Huntsville Intermediate
School that morning and had not picked him up. Huntsville police were unable to contact
Contreras. The Washington County Circuit Court, Juvenile Division, filed an ex parte order
for emergency custody on February 27, 2012.
The circuit court entered an adjudication and disposition order on March 29, 2012,
in which it adjudicated J.G. dependent-neglected. J.G. was temporarily placed in the custody
of Williams, with the goal of reunification with Contreras. The court required Contreras to
(1) cooperate with DHS; (2) keep DHS informed of where she was living and any changes
in telephone number or address; (3) participate in individual counseling; (4) refrain from use
of illegal drugs and alcohol; (5) submit to random drug screens weekly; (6) obtain and
maintain clean, safe, and stable housing and employment; (7) demonstrate ability to protect
J.G. and keep him safe from harm; and (8) maintain contact with her attorney.
Two weeks after the adjudication order was entered, on April 13, 2012, at the behest
of DHS, the circuit court issued a bench warrant for failure to appear at a show-cause hearing
and for contempt of court, as Contreras had (1) failed to call DHS weekly; (2) failed to
cooperate with DHS; (3) failed to follow through in counseling; and (4) failed to submit to
weekly random drug screens. Contreras was arrested on the bench warrant on April 24, 2012,
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and sentenced to 30 days in jail on the contempt charges.2
Five months later, on September 5, 2012, the circuit court entered an order finding
that Contreras had made some progress toward alleviating or mitigating the causes of J.G.’s
removal from the home and completing the court’s orders and requirements of the plan.
Contreras had completed a psychological evaluation, completed parenting classes, and had
passed five nonrandom drug screenings. The court also found that Contreras would be
moving into an apartment in Texas on August 31, 2012. However, Contreras had not
completed her drug-and-alcohol assessment, was on probation stemming from the charges in
Texas, and was involved in a custody case over J.G.’s younger half-brother, who lived with
his paternal grandmother. Although the circuit court found that it was in J.G.’s best interest
to remain in the custody of Williams, the goal of the case remained reunification.
On November 14, 2012, the circuit court granted Contreras supervised visitation once
per month, on two consecutive days for at least one hour. A second agreed order for
supervised visitation was filed on December 20, 2012, awarding supervised visitation for at
least two hours.
The circuit court held a permanency-planning hearing on January 18, 2013. A DHS
report, prepared the previous day, stated that Contreras had been compliant with her case
plan, noting she had (1) obtained a residence in Arlington, Texas, (2) been employed since
June 2012, (3) completed counseling, (4) been cooperative with the department and contacted
2
Contreras was released by an order filed May 1, 2012, so that she could travel to
Dallas, Texas, to appear before the criminal court there, where she pled guilty to two
unrelated charges and was sentenced to 10 days in jail.
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her caseworker regularly, (5) completed parenting classes in Texas in July 2012, and (6)
completed her psychological evaluation on June 20, 2012.
Caseworker Anastacia Moore testified that J.G. was doing well in his current placement
with Christine Williams. J.G. was doing very well in school and was receiving counseling
twice a week. When the counselor approved visitation, J.G. began supervised visits, where,
at first, he displayed hostility towards his mother. But in subsequent visits “they seemed to
be getting along.”
According to Moore, J.G. “looked like he was enjoying himself,” during his visit with
Contreras but he told her he was not. Moore stated that Contreras was currently in
compliance with the case plan. She stated that she was “conflicted” about whether it was in
J.G.’s best interest to return to mom because “he doesn’t want to be with his mother.” She
conceded, however, that some of J.G.’s aggression toward his mother concerned things he
would not have been aware of if he hadn’t been told about them by a third party.
Christine Williams, Contreras’s mother, stated that J.G. was “doing great in our home”
and getting good marks in school. Williams asserted that “we love J.G. so much” and wanted
him to remain in her home. According to Williams, she gave J.G. a horse as “therapy.” She
asserted that Contreras was inadequate as a parent.
Contreras confirmed that she was complying with the case plan. She denied Williams’s
allegations, and asserted that her mother and her new husband had substance abuse problems.
Contreras admitted to having been placed on probation because of a fight with a friend who
was a police officer and to serving ten days for a DWI. However, she claimed that she now
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seldom drank alcohol. Both the DWI and the fight predated the case plan as they occurred
before J.G. was removed from Contreras’s custody.
Although J.G. attended the hearing, his wishes were made known by a letter in which
he stated that he wished to stay “with my nana and papa because I feel safe,” and also because
he has his “own room, bed, t.v., remote controlled helicopter, mp3 player, and game system.”
The attorney ad litem recommended that J.G. remain with his grandmother and that
Contreras continue to have supervised visitation.
At the January 18, 2013 hearing, the circuit court noted that Contreras had made
“some good progress” but stated that she had not made “enough progress with [J.G.’s] trust.”
It granted permanent custody in Williams and closed the case. Less than eleven months had
elapsed since J.G. was adjudicated dependant/neglected. Despite granting permanent custody
of J.G. to Williams, the circuit court granted Contreras extended unsupervised visitation
during spring and summer breaks as well as on holiday weekends. The permanency-planning-
hearing order and closure order, filed on February 15, 2013, stated that Contreras was in
compliance with “some of” the case plan and court orders.
This court reviews findings in dependency-neglect proceedings de novo, but we will
not reverse the trial court’s findings unless they are clearly erroneous. Lamontagne v. Ark.
Dep’t. of Human Servs., 2010 Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court, based on the entire evidence,
is left with a definite and firm conviction that a mistake has been committed. Id.
Furthermore, this court defers to the trial court’s evaluation of the credibility of witnesses.
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Id.
Contreras asserts that there was insufficient evidence presented in the permanency-
planning hearing to show that it was in J.G.’s best interest to grant permanent custody to
Williams. She contends that the circuit court erred in not following the requirement of
Arkansas Code Annotated section 9-27-338(c) (Supp. 2011), that J.G. be returned to his
natural parent. Contreras asserts that there was no evidence adduced in the permanency-
planning hearing to show that she was a threat to her child.
We are mindful that this statute was amended by the Arkansas General Assembly
effective August 15, 2013, but because the hearing was held prior to that date, we apply the
version of the statute in place at that time. In pertinent part, it states as follows:
(c) At the permanency planning hearing, based upon the facts of the case, the circuit
court shall enter one (1) of the following permanency goals, listed in order of
preference, in accordance with the best interest of the juvenile:
(1) Returning the juvenile to the parent, guardian, or custodian at the permanency
planning hearing if it is in the best interest of the juvenile and the juvenile’s health and
safety can be adequately safeguarded if returned home;
(2) Authorizing a plan to return the juvenile to the parent, guardian, or custodian only
if the court finds that:
(A)(i) The parent, guardian, or custodian is complying with the established case plan
and orders of the court, making significant measurable progress toward achieving the
goals established in the case plan and diligently working toward reunification.
(ii) A parent’s, guardian’s, or custodian’s resumption of contact or overtures toward
participating in the case plan or following the orders of the court in the months or
weeks immediately preceding the permanency planning hearing are insufficient
grounds for authorizing a plan to return home as the permanency plan.
(iii) The burden is on the parent, guardian, or custodian to demonstrate genuine,
sustainable investment in completing the requirements of the case plan and following
the orders of the court in order to authorize a plan to return home as the permanency
goal;
(B) The parent, guardian, or custodian is making significant and measurable progress
toward remedying the conditions that caused the juvenile’s removal and the juvenile’s
continued removal from the home; and
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(C) The return of the juvenile to the parent, guardian, or custodian shall occur within
a time frame that is consistent with the juvenile’s developmental needs but no later
than three (3) months from the date of the permanency planning hearing;
...
(5) Authorizing a plan to obtain a permanent custodian, including permanent custody
with a fit and willing relative.
Here, the circuit court found that it was not in J.G.’s best interest to be placed in
Contreras’s care because J.G. had concerns about being in his mother’s custody and because
it was “supported by the record” that Contreras had not been stable.
Contreras asserts that this finding was error because no evidence was submitted to show that
J.G.’s health and safety would not be adequately safeguarded. We note that the circuit court
made no findings about whether J.G.’s health and safety could be safeguarded in his mother’s
custody, the caseworker testified that her report did not list any reasons why J.G. would be
unsafe in Contreras’s home. However, the safeguarding of the juvenile’s health and safety is
only part of the statutory requirement. Returning the juvenile must also be in the child’s best
interest. We must therefore determine whether the circuit court’s finding, that returning J.G.
to Contreras’s custody, was not in his best interest was clearly erroneous.
Here, there was sufficient evidence to find that it was in J.G.’s best interest to remain
in Williams’s temporary custody. J.G. was doing well in school and had a close relationship
with his grandmother. Also, J.G. had not resolved his issues of trust concerning his mother.
Accordingly, there is sufficient evidence for the circuit court’s finding that it was not
appropriate to return J.G. to his mother at the time of the permanency-planning hearing in
accordance with 9-27-338(c)(1). However, there was not sufficient evidence for the circuit
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court to find that placement pursuant to section 9-27-338(c)(2), which authorizes the circuit
court to create a plan to return the juvenile to the parent within three months of the
permanency-planning hearing, was not in J.G.’s best interest.
Such a plan is appropriate if: (1) the parent is complying with the case plan and making
measurable progress; (2) the parent is making significant progress toward remedying the
conditions that caused the removal; and (3) the return of the juvenile will occur within three
months.
Here, the circuit court found that Contreras was in compliance with the case plan, and
that Contreras was making significant progress toward remedying the conditions that caused
the removal. Additionally, there was no finding that the return of the juvenile could not
occur within three months. In fact, we find it significant that the circuit court had only
recently ordered brief, supervised visitation. Yet, at the conclusion of the permanency-
planning hearing, the circuit court found it appropriate to order extended unsupervised
visitation.
After reviewing the entire record, we are left with a definite and firm conviction that
a mistake was committed when the circuit court granted permanent custody of J.G. to
Williams and closed the case. Accordingly, we reverse the circuit court’s order and remand
for further proceedings consistent with this opinion.
Reversed and remanded; court of appeals’ opinion vacated.
HANNAH, C.J., CORBIN and DANIELSON, JJ., dissent.
PAUL E. DANIELSON, Justice, dissenting. This case presents a very close question
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in my opinion and, because it does, I would affirm the circuit court’s order; I therefore
respectfully dissent. As the majority opinion correctly states, we review findings in
dependency-neglect proceedings de novo, but we will not reverse the circuit court’s findings
unless they are clearly erroneous. See Porter v. Arkansas Dep’t of Health & Human Servs., 374
Ark. 177, 286 S.W.3d 686 (2008). A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court, based on the entire evidence, is left with a definite
and firm conviction that a mistake has been committed. See id.
In this case, I simply am not left with a definite and firm conviction that a mistake was
committed. As the majority acknowledges, there was sufficient evidence to sustain the circuit
court’s finding that, at the time of the permanency-planning hearing, it was not in J.G.’s best
interest to return him to his mother. Where the majority and I part ways is in its reversal and
remand for the circuit court’s further consideration of section 9-27-338(c), the plain language
of which provides that a permanency goal, listed in order of preference, “shall” be entered “in
accordance with the best interest of the juvenile.”
After reviewing the circuit court’s findings and the record in this case, I cannot say that
the circuit court committed reversible error. While the majority finds that there was not
sufficient evidence such that the circuit court could have found that section 9-27-338(c)(2)
was an inappropriate goal, I myself can surmise at least one reason that such a plan might have
been excluded from the circuit court’s consideration in this case at the time of the
permanency-planning hearing. The section relied on by the majority requires that the return
of the juvenile to the parent shall occur “no later than three (3) months from the date of the
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permanency planning hearing.” The hearing in this matter was held in January, and it
involved an eleven-year-old child who was in school at that time and doing very well in his
studies. This same student had been forced to change schools several times throughout the
past few years; certainly the circuit court could have considered it in his best interest to stay
with his maternal grandmother rather than implement a plan under section 9-27-338(c)(2),
which would have required uprooting J.G. from his school in the middle of the school year
to meet the statute’s three-month time constraint.1 Admittedly, this is only speculation, but
it certainly gives me pause such that I cannot reverse and remand on this basis set forth by the
majority.
Again, the question presented in this case is a close one; however, our standard of
review dictates a definite and firm conviction that a mistake has been made before we can
reverse. Because I am not left with such a conviction after reviewing the entire evidence, I
would affirm the circuit court’s order.
HANNAH, C.J., and CORBIN, J., join.
Janet Lawrence, for appellant.
Tabitha B. McNulty, County Legal Operations, and Chrestman Group, PLLC, by: Keith
L. Chrestman, for appellees.
1
At the time of the hearing, Ms. Contreras was living in Texas.
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