Long v. Arkansas Department of Health & Human Services , 96 Ark. App. 1 ( 2006 )

Josephine Linker Hart, Judge.

Jamie Long appeals from an order of the Pulaski County Circuit Court terminating her parental rights to her daughter K.L. and son M.S. On appeal, she argues that the trial court erred in finding sufficient evidence to terminate her parental rights. We reverse and remand.

On February 27, 2003, Arkansas Department of Human Services (DHS) took Long’s children into custody after she was arrested on drug charges relating to her use of methamphetamine. At the time, K.L., and M.S., were five and two years old, respectively. On April 25, 2003, the children were adjudicated dependent-neglected.

Initially, Long was not compliant with the requirements of the case plan. At the first review hearing, the trial court found that Long had not complied with its orders and the case plan services in that she had not submitted to the court-ordered psychological evaluation, failed to complete parenting classes, no longer attended NA/AA meetings at Celebrate Recovery, arrived late for visitation with her children and, contrary to the direction of DHS, brought people to the visits. The trial court did note, however, that Long did have a drug- and-alcohol assessment, “some visitation,” and “some random drug screens.” At an October 30, 2003, review hearing, the trial court found that Long still had not completed parenting classes and had not visited the children since September 8, 2003. The trial court ordered Long to continue to submit to random drug screens, visit the children “regularly,” and “continue intensive outpatient substance abuse treatment.” It also imposed a requirement that Long “have a stable home and employment and demonstrate that she can properly provide for her kids.”

In its February 26, 2004, permanency-planning order, the trial court found that Long had complied with the court orders and case plan, and it continued to order reunification services. Additionally, the court awarded Long weekend visitation.

On March 19, 2004, the trial court entered an emergency ex parte order modifying the visitation to twice weekly at the DHS offices. The visitation was changed on March 16, 2004, after the foster mother, Mrs. Cherry, informed DHS that the children had not been returned on time from the weekend visit. This order remained in place even though Long informed DHS that the late return was caused by her hospitalization due to complications with her pregnancy.

At the next permanency-planning hearing, held on May 20, 2004, the trial court rejected DHS’s recommendation that reunification remain the goal and sua sponte ordered a termination hearing. In that order, the trial judge stated: “I understand she’s pregnant. I am concerned about the fact that she’s pregnant and having some problems. I’m not unsympathetic to that, but mom does not seem to have understood the priorities that she should have on this case.” She further noted that Long had not provided the drug treatment sign-in sheets that she had been directed to submit. Nonetheless, the trial judge ordered reunification services to continue.

At the September 15, 2004, termination hearing, Dr. Paul Deyoub, a psychologist, testified that he administered a psychological evaluation to Long. He stated that Long admitted to using methamphetamine “four or five times,” marijuana, “some alcohol,” and pain medication. Long told him that she was currently living with a man from Mexico named Mario, whom she planned to marry when her DHS case was over. He noted that she had Mario’s name tattooed on both sides of her neck, but he opined that it was consistent with her personality in that it reflected impulsiveness and poor decision making. Dr. Deyoub further opined that Long’s involvement with Mario also reflected poor judgment in that he was a “big priority for her.” According to Dr. Deyoub, Long’s testing revealed some degree of personality disorders, with traits of Borderline, Histrionic, and Dependent disorders indicated. Long’s I.Q. was 88. He noted that Long had an unstable life, having been abandoned by her parents to a group home for six years “for no apparent reason” after her parents divorced. Later, Long tried to live with her mother when she was fifteen, received in-patient treatment at Rivendell and Turning Point, and had, since age seventeen, tried to make “it as best she can with relationships” that failed but had produced two children. He opined that her prognosis for reunification was “very guarded and poor . . . although not impossible.” Dr. Deyoub noted a trend of past dependence on males in relationships and stated that “Mario is an unknown. I have no idea what this individual is all about. So that’s just one more factor that I don’t know about, but that the Court has to see who is this person.”

Jan Kucala, a licensed counselor, certified play therapist, and program manager for the Centers for Youth and Families in Jacksonville testified that she counseled K.L., beginning on January 13, 2004. She stated that the child had “a lot of anxiety and worry about family matters and concern about what was going to happen to her, what was happening to her mother.” Ms. Kucala stated that Long had made progress, that she was much more aware of K.L.’s feelings, that she was “very open” about mistakes that she had made, and that she showed “a lot of insight” into how her separation from her children has damaged her relationship with them and what she would need to do to repair that relationship. Ms. Kucala noted as well that, at times, there was confusion as to who K.L.’s case worker was and noted that there were several appointments for which DHS had failed to bring the child. She reported that being out of the home was “very stressful” on K.L., that K.L. felt “punished” because she was in foster care, and that there was a “very strong bond” between K.L. and her mother.

Further, Ms. Kucala opined that if Long’s rights were terminated, “regression will probably occur on [K.L.’s] part,” and while she declined to offer an opinion regarding termination because her agency did not encourage them to make this type of judgment, she did state that she thought that “the family had been making progress,” and K.L. had not been prepared “in any way” for termination of her mother’s parental rights. Regarding Mario, Ms. Kucala stated that his involvement had been limited, but she was aware that Long and Mario had an agreement that Long would be able to stay home with the children while Mario supported the family, and Mario affirmed that commitment. Nonetheless, she stated that she did not think that it would be prudent to put the children “totally in their mom’s home today,” but noted that the “kids are very bonded to her” and she did not believe that the reunification process “would be a long-term thing.” She recommended that the trial court order unsupervised visitation.

Long testified that she currently lived in a one-bedroom apartment, but she had signed a transfer with the management company and paid fees to allow her to move into a larger apartment that would accommodate the return of her children. She stated that Mario’s take-home pay was four to five hundred dollars per week. She admitted to testing positive for opiates the previous August, but attributed it to the Tylenol 3 that she had been prescribed. She admitted that she moved to Georgia for three or four months in 2003, but when she found that transferring her case there would be a “long process,” she returned to Arkansas. She stated that she moved there because Mario was able to make more money. Nonetheless, while she was away, she claimed that she called her children regularly.

Regarding her substance-abuse problems, Long claimed that she was not “addicted in any way to any controlled substance” when she had her assessment because she had just been in jail for two-and-a-half months. Since getting out, she went to Celebrate Recovery for drug meetings, AA meetings every day for a month “to keep busy doing things on the positive level,” and UAMS Adult Psychiatry for individual counseling. She also claimed to have attended Narcotics Anonymous at Saline Memorial Hospital. Long admitted that she was slow to provide the documentation of her attendance at the various therapy sessions, but claimed that no one told her that her documentation was inadequate. Long noted that she had been assigned to take five drug screens since May of that year, and while she missed one, all except the August 9, 2004, screening when she was taking Tylenol 3 as prescribed, had been negative.

Long noted that the caseworkers had changed quite a bit during the pendency of her case. She recalled that Angela Haynes, Carolyn Williams, Bonnie Twillie, and Tamika Floyd had all been assigned her case at various times, and she stated that confusion as to who was handling the case had affected her visitation. She recounted having difficulty finding out who her caseworker was at several key times.

Long stated that she had a long-term relationship with Mario Cirilo and that they planned to marry once she got her kids back home. She claimed that she was working very hard to get her children back. Nonetheless, she admitted that Mario was “a priority,” and she disputed that it was bad judgment to try to have a baby while her children were in DHS custody. Long stated that the reason she had failed to get her children back to the foster-parent’s home on time after her last weekend visit was that she was hospitalized. She claimed that she provided DHS caseworker Carolyn Williams with “some proof’ she had been in the hospital, but admitted it was “the wrong one.” Long also conceded that she had not provided documentation to DHS proving that she had been employed at McDonald’s.

Tamika Floyd, one of the four caseworkers that had worked with Long’s children, testified that Long was aware of the requirement that she receive drug treatment and that she provide proof that she was getting drug treatment; that she submit to random drug testing showing that she was “clean”; that she maintain steady employment and stable housing; and that she attend NA meetings and provide DHS with the proof of attendance. Floyd stated that Long tested positive in August for opiates and positive for pro-poxyphene on May 18. Floyd stated that Long also missed one drug screen, claiming “she forgot.” Floyd claimed that she “never saw any proof [Long] completed drug treatment.” Floyd admitted that Long gave her sign-in sheets for NA meetings in August, July, and May, and told her that the sign-in sheets for June were at her sister’s house. However, Floyd claimed that she was only able to “confirm” attendance at two meetings in July and that she had no proof that Long attended individual counseling. Floyd further admitted that she received a letter from Long’s father verifying that he paid Long to take care of her grandmother, but never received “pay stubs.”

Floyd stated that Long “began to comply” with the case plan requirements, but noted that some elements still needed work, including the requirement that she maintain a stable home environment- — -Floyd stated Long’s one-bedroom apartment was not large enough to accommodate her children. She further stated that the NA sign-in sheets are “somewhat questionable.” Regarding the services that DHS provided to Long, Floyd listed “a drug and alcohol assessment, counseling services with [K.L.], psychological assessment, and random drug screens.” She also claimed that transportation services were “offered” along with visitation with the children, “services” for M.S. at Pediatric Specialty Care, foster care, and medical and dental services. Floyd stated that she believed that Long knew her case worker, but admitted that there was considerable shuffling of the case among several workers in the office. Regarding individual counseling, Floyd stated that Long had told a previous case worker, Williams, that Long was receiving counseling at UAMS and “there’s no notation that the counseling was deficient and more counseling was needed.” Floyd also stated that she visited Long’s current one-bedroom apartment, and she saw that there was “food in the refrigerator, the lights were on, and it was clean,” and “fully furnished.”

In its termination order, the trial judge found that “there is a potential that these juveniles would be harmed by continuing contact with the mother.” It further noted that there was “great potential for emotional harm to these juveniles if they had continued contact with a mother who has not placed them first and foremost in her priorities so that she can be there for them all day, every day, and provide for all their needs.” Additionally, the trial judge found that Long “has not demonstrated that she can remain drug free, have stability in housing and employment, and make appropriate decisions that do not negatively affect [the children’s] well being.” She noted deficiencies in the documentation that Long was ordered to provide.

On appeal, Long argues that the trial court erred in finding that there was sufficient evidence to terminate her parental rights. She contends that she “substantially complied” with the orders of the trial court and corrected the problems that caused the removal of her children. Long notes that she was ordered to submit to ten drug screens, and she never tested positive for methamphetamine, the use of which caused her children to be taken into custody. She further notes that she completed parenting classes, attended visitation, participated in a psychological evaluation, completed a drug and alcohol assessment, attended outpatient drug counseling at Celebrate Recovery, attended individual counseling at UAMS, and obtained a place to live and an adequate means of support. Long asserts that she met the three objectives required of her at the permanency-planning hearing: visit her children, continue in therapy with her daughter, and attend AA or NA meetings once a week and provide documentation of those meetings to the caseworker.

The grounds for termination of parental rights must be proven by clear and convincing evidence. M. T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 305, 952 S.W.2d 177, 179 (1997). When the burden of proving a disputed fact is by clear and convincing evidence, the question on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. 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. Dinkins v. Arkansas Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court reviews termination of parental rights cases de novo. Id.

It is clear that Long substantially complied with the requirements imposed upon her by the court. As the trial judge recites in her order, Long was required to do “three main things: attend AA or NA meetings once per week and provide documentation to the caseworker every month; make her priority to visit the juveniles without fail; and continue in therapy with [K.L.] so that she could learn how to help [K.L.] alleviate her anxiety and better parent [K.L.] with her issues.” With the exception of providing documentation, Long fulfilled all of these requirements. Given the extraordinary progress Long has made in fulfilling the requirements of the court, the overwhelming evidence of the very strong bond between mother and children, and the testimony from K.L.’s therapist that the child would “regress,” we hold that the trial court was clearly erroneous in finding that Long’s continued contact with her children would be detrimental. Accordingly, the best interest of the children dictates that we reverse the termination of Long’s parental rights and reinstate reunification services with a goal of returning the children to Long’s custody.

Reversed and remanded.

Roaf, Vaught, and Gladwin, JJ., agree. Crabtree and Glover, JJ., dissent.