Norton v. Ark. Dep't of Human Servs. , 481 S.W.3d 780 ( 2016 )

Cite as 2016 Ark. App. 43
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-750
WILLIAM NORTON Opinion Delivered January 27, 2016
APPELLANT
APPEAL FROM THE GREENE
V. COUNTY CIRCUIT COURT
[NO. JV-13-155]
ARKANSAS DEPARTMENT OF HONORABLE BARBARA HALSEY,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED
BART F. VIRDEN, Judge
The Greene County Circuit Court terminated appellant William Norton’s parental
rights to his daughter S.N. (DOB: 6/7/2011).1 On appeal, Norton challenges the sufficiency
of the evidence supporting the grounds for termination. We affirm.
I. Procedural History
On August 15, 2013, the Arkansas Department of Human Services (DHS) filed a
petition for emergency custody and dependency-neglect. In an affidavit attached to the
petition, Kandi Tarpley, a DHS family-service worker, indicated that a report had been made
to the child-abuse hotline on August 12, 2013, regarding the death of S.N.’s three-week-old
sibling the previous day. Tarpley was asked to conduct a safety assessment of then two-year-
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S.N.’s mother, Erica Norton, consented to the termination of her parental rights.
Despite her consent, the trial court involuntarily terminated her rights at DHS’s request. She
is not a party to this appeal.
Cite as 2016 Ark. App. 43
old S.N. who lived in the home. Tarpley learned from a probation officer that Norton had
earlier that day tested positive for barbiturates, benzodiazepines, and opiates. The probation
officer informed Tarpley that Norton had a prescription for hydrocodone filled on July 31,
2013, and that 100 pills were missing. She also said that Norton had taken thirty-nine Xanax
pills over the course of twelve days. Tarpley further testified that she had contacted S.N.’s
mother, who was staying at Mission Outreach because of a no-contact order in place
between her and Norton.
The trial court entered an ex parte order for emergency custody and subsequently
found probable cause to remove S.N. from the home given the emergency situation. On
October 24, 2013, the trial court adjudicated S.N. dependent-neglected, to which the parties
stipulated. In an agreed review order entered February 10, 2014, the trial court found that
Norton had partially complied with the case plan but had failed to resolve all of his criminal
issues and had failed to obtain and maintain stable housing. Following a July 31, 2014
hearing, the trial court entered an agreed permanency-planning order indicating that, based
on Norton’s immediate attempt to receive services upon his release from incarceration, he
would receive three additional months of services.
After a hearing held on December 16, 2014, the trial court entered a fifteen-months’
review order finding that the parents had not complied with the case plan and court orders
in that they had refused to submit to drug testing and had no home for more than one year
to which S.N. could be returned. The trial court changed the goal of the case from
reunification to termination. On February 27, 2015, DHS filed a petition to terminate
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parental rights with respect to both parents. A termination hearing was held on June 25,
2015.
II. Termination Hearing
Holly Johnson, DHS family-service worker, testified that S.N. had been out of the
parents’ custody for almost two years. She stated that Norton had not complied with the case
plan in that his stable housing was in the Greene County jail; he was unemployed; and he
remained in contact with DHS only due to his incarceration. Johnson stated that, when
Norton was not incarcerated, he had visited with S.N. on a regular basis. She also testified
that from October 2013 through April 2014, Norton had tested positive for drugs; from June
2014 through August 2014, he had tested negative for drugs; and from October 2014
through December 2014, he had refused to submit to drug testing. Johnson conceded that
Norton had not been asked to submit to a drug test since December 2014 but noted that
Norton had remained incarcerated since December 22, 2014. Johnson further testified that
Norton had a history of public intoxication, DWI, careless driving, criminal mischief,
disorderly conduct, domestic battery, resisting arrest, and probation revocation.
Norton testified that he had received an eight-year sentence for second-degree
domestic battery of his wife. Norton stated that, before he was incarcerated, he had been
taking Xanax and Tylenol 3, but he claimed that he did not know why. He said that he had
“been to two rehabs and they were short” but that he had not been offered drug treatment
while in jail. Norton admitted that he was unable to provide S.N. with a stable home life.
Following the hearing, the trial court found that termination of parental rights was in
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S.N.’s best interest and found two grounds on which to terminate Norton’s rights. The two
grounds applicable to Norton are listed in Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2013):
(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
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.
Ark. Code Ann. § 9-27-341(b)(3)(B)(i) & (vii).
Specifically, as to the first ground, the trial court found that Norton had been abusing
controlled substances at the time S.N. was removed from his custody, that since August 2014
Norton had refused to submit to drug testing, that he had not obtained a residence, and that
he currently had unresolved criminal issues. Regarding subsequent issues, the trial court
noted that Norton had been arrested for DWI on April 18, 2014, and convicted; that he had
failed to complete an outpatient, substance-abuse treatment plan “and terminated his mental
health therapy without completion”; that he had refused random drug screens since August
2014 in violation of the case plan and the court’s orders; and that he was currently
incarcerated.
III. Standard of Review
In order to terminate parental rights, a trial court must find by clear and convincing
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evidence that termination is in the best interest of the juvenile, taking into consideration (1)
the likelihood that the juvenile will be adopted if the termination petition is granted, and (2)
the potential harm, specifically addressing the effect on the health and safety of the child,
caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-
341(b)(3)(A). Additionally, the trial court must find by clear and convincing evidence that
one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B).
However, proof of only one statutory ground is sufficient to terminate parental rights. Gossett
v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205.
Termination-of-parental-rights cases are reviewed de novo. Fenstermacher v. Ark. Dep’t
of Human Servs., 2013 Ark. App. 88, 426 S.W.3d 483. Grounds for termination of parental
rights must be proved by clear and convincing evidence, which is that degree of proof that
will produce in the finder of fact a firm conviction of the allegation sought to be established.
Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved
by clear and convincing evidence is clearly erroneous. Id. 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. Id. In resolving the
clearly erroneous question, we give due regard to the opportunity of the trial court to judge
the credibility of witnesses. Id. Termination of parental rights is an extreme remedy and in
derogation of a parent’s natural rights; however, parental rights will not be enforced to the
detriment or destruction of the health and well-being of the child. Id.
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IV. Discussion
A. Failure to Remedy
Norton asserts that his use of controlled substances had been remedied. He contends
that the fact that he had refused drug tests over a forty-eight-day period in 2014 is not clear
and convincing proof that he was misusing drugs at the time of the termination hearing in
June 2015. Next, Norton points out that there was no evidence that the no-contact order
had been violated after the case was opened and, because there was no evidence that his wife
had been battered again, he asserts that the behavior that resulted in the no-contact order had
been remedied.
The trial court could have reasonably concluded that, given Norton’s repeated refusals
to take a drug test, his drug abuse had not been remedied. Although Norton asserts that his
drug abuse and violent behavior had been remedied, we note that Norton was incarcerated
for extended periods, which is not the remedy contemplated by our termination statute. We
hold that the trial court did not clearly err in determining that the causes for S.N.’s removal
from the home had not been remedied.
Moreover, Norton makes no argument about his failure to remedy his lack of stable
housing. He admitted that he could not provide a home for S.N. The intent of our
termination statute is to provide permanency in a juvenile’s life in all circumstances where
return to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears
from the evidence that return to the family home cannot be accomplished in a reasonable
period of time as viewed from the juvenile’s perspective. Ark. Code Ann. § 9-27-341(a)(3).
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At the time of the termination hearing, Norton was still incarcerated and had no home. His
lack of stable housing for S.N. is reason enough to affirm on the failure-to-remedy ground.
B. Subsequent Factors
We will briefly address Norton’s argument on the second ground for termination,
although only one ground is necessary. Gossett, supra. Norton contends that the four
subsequent issues listed by the trial court had been remedied. First, he contends that there
was no document and no testimony proving that he had been arrested for or convicted of
DWI. We agree; however, Norton did not object to the case worker’s testimony as to his
criminal history. To preserve an objection for appeal, a timely and appropriate objection must
be made. Rodriguez v. Ark. Dep’t of Human Servs., 360 Ark. 180, 200 S.W.3d 431 (2004).
Second, Norton argues that there was no evidence that he was ordered to attend therapy.
Norton is correct; however, other unremedied subsequent factors were present. Third, he
argues that not taking drug tests for “a mere 7% of the entire case—sandwiched between
extremely long periods of no drugs isn’t clear and convincing evidence that the issue wasn’t
remedied.” In refusing even one test, Norton disobeyed a court order despite knowing that
his submission to the tests was a condition of getting his child back. Fourth, Norton contends
that his incarceration was not a subsequent factor because he had battered his wife before the
case had been opened; however, Norton’s punishment for battery—his
incarceration—covered a period of time that was subsequent to the case’s having been
opened.
Also, Norton complains that the trial court did not find that DHS had offered
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appropriate family services to remedy his incarceration. Assuming such services even exist,
the trial court made numerous findings that DHS had made reasonable efforts to provide
services to Norton. A failure to challenge the court’s prior “meaningful-efforts” findings
precludes this court from now reviewing any adverse rulings resulting from those orders not
appealed from. Jones-Lee v. Ark. Dep’t of Human Servs., 2009 Ark. App. 160, 316 S.W.3d 261.
Affirmed.
KINARD and GLOVER , JJ., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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