Ware v. Ark. Dep't of Human Servs. , 503 S.W.3d 874 ( 2016 )

Cite as 2016 Ark. App. 480ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-578
QUINSHONDA WARE Opinion Delivered: October 19, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. 66JV-2010-73]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR HONORABLE LEIGH ZUERKER,
CHILDREN JUDGE
APPELLEES
AFFIRMED
RITA W. GRUBER, Judge
Appellant, Quinshonda Ware, appeals from an order of the Sebastian County Circuit
Court terminating her parental rights to her children D.S., born August 28, 2007; L.S., born
October 9, 2008; S.S., born October 13, 2009; and M.S., born January 29, 2013. She
presents three points on appeal: (1) there was insufficient evidence to support the grounds
for termination; (2) there was insufficient evidence that termination was in the children’s best
interest; and (3) the circuit court erred in terminating her parental rights when placement
with a relative was being considered. We affirm the circuit court’s order.
The events that led to the termination began on September 19, 2014, when local law
enforcement contacted the Arkansas Department of Human Services (DHS) for assistance
with appellant’s four children. Appellant had left the children with her mother and failed to
return. The grandmother subsequently called the local police, stating that she could no longer
Cite as 2016 Ark. App. 480care for the children and had been unable to locate appellant. The DHS worker was also
unable to make contact with appellant, and a 72-hour hold was placed on the children. The
DHS caseworker’s affidavit attached to the petition for emergency custody stated that there
had been true findings of maltreatment against appellant in reference to her illegal drug use;
that the children had been in foster care from January 22, 2010, through March 2011; and
that St. Francis County DHS had opened a protective-services case on the family on July 14,
2014, as a result of appellant’s drug use.
The court granted DHS’s petition for emergency custody and on December 3, 2014,
entered an order adjudicating the children dependent-neglected based on neglect and
parental unfitness due to appellant’s having left her children and failing to retrieve them as
previously arranged. The court also noted that appellant had refused to return calls from the
grandmother and the police officers who were attempting to locate her. The court found that
this put the children at a “substantial risk of serious harm.”
In a review order entered on May 11, 2015, the court found that DHS had made
reasonable efforts to provide family services to achieve the goal of reunification and that
appellant had completed a psychological evaluation; visited regularly; and obtained housing,
income, and transportation. The court also found, however, that appellant had not
completed parenting classes or a drug-and-alcohol assessment and that she had tested positive
for numerous illegal substances during the review period.
In a permanency-planning order entered on August 6, 2015, the court stated that the
goal of the case continued to be reunification with a concurrent goal of adoption following
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Cite as 2016 Ark. App. 480termination of parental rights. The court made it clear that placement of the children “must
occur within a period that is consistent with the juveniles’ developmental needs and shall be
no later than three months from the date of this hearing [which occurred on July 21, 2015].”
The court found that appellant had not complied with the case plan and court orders,
specifically finding that she had not completed parenting classes, had not completed
parenting-without-violence classes or any counseling recommended in her psychological
evaluation, had refused outpatient treatment as recommended by her drug-and-alcohol
assessment, and had tested positive for numerous illegal substances throughout the case.
The court held a fifteen-month review hearing on October 27, 2015, and entered a
fifteen-month permanency-planning hearing order on November 23, 2015, again finding
that appellant had failed to complete parenting-without-violence classes or individual or
family counseling as recommended by her psychological evaluation, had refused outpatient
treatment as recommended by her drug-and-alcohol assessment, and had tested positive for
numerous illegal substances throughout the case. No relatives were at either of these
permanency-planning hearings, and the November order specifically stated that the children
had not been placed in a relative’s home.
At the termination hearing held on January 29, 2016, and February 22, 2016, appellant
admitted that she had continued to test positive for drugs throughout the case, had not
completed parenting-without-violence classes, had failed to complete individual counseling,
and had not completed a drug-and-alcohol treatment program. She testified that she had
lived in three residences since the case had begun. She said that first she lived in a rental
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Cite as 2016 Ark. App. 480home for about nine months and then lived with her boyfriend for about nine months. She
testified that she had not known at that time that her boyfriend had a criminal history. She
had moved out of that home a week before the termination hearing and was living with a
friend in a one-bedroom apartment. She testified that she had obtained a four-bedroom
house to rent and was “due to move in” on the day of the termination hearing. She also
testified that she did not own a vehicle but for several months had been driving a car that was
owned by her employer. The car was not large enough to transport all of her children.
Bonnie Zirbel, an adult-outpatient drug-and-alcohol counselor at Western Arkansas
Counseling and Guidance Center, testified that appellant had completed a drug-and-alcohol
assessment in June 2015 and that the recommendation had been a phase II twelve-week
outpatient program. Appellant refused the services. Appellant returned to the center in
September and tested positive for Lorazepam, marijuana, and alcohol. She returned again in
November and tested positive for marijuana and alcohol. On December 8, 2015, she tested
positive for amphetamines, methamphetamine, THC, and alcohol and then for hydrocodone
and THC on December 15, 2015. She continued to test positive for various substances in
several drug screens conducted in January 2016. The center changed her treatment
recommendation to a phase III sixteen-week outpatient program. Appellant briefly entered
that program but continued to test positive for drugs and was then recommended for
residential treatment. Ms. Zirbel testified that appellant was a no-show several times despite
having been scheduled for intake on several occasions.
Appellant’s DHS caseworker, Lisa Walton, testified that appellant did not attend the
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Cite as 2016 Ark. App. 480recommended drug treatment, did not provide proof of having attended any NA/AA
meetings, and did not attend any of the counseling recommended in her psychological
evaluation. Ms. Walton also testified that the children were adoptable and that they would
be subject to potential harm if returned to appellant due to her continuing drug issues and
failure to complete the necessary services, including parenting classes, drug treatment, and
counseling. Finally, Ms. Walton also testified that appellant did not have stable and adequate
housing or transportation sufficient to accommodate all of her children.
The attorney ad litem argued that the children were entitled to permanence and that
they could not safely return to appellant at this point. Her recommendation was termination
of appellant’s parental rights.
At the conclusion of the hearing, the court stated that it was granting the petition for
termination. The court noted that the children had been out of the home for seventeen
months and that appellant had not corrected the conditions that caused their removal. It
focused on appellant’s continued drug use throughout the case and her failure to seek or
complete any drug-treatment program despite the recommendations. The court found that
there was little likelihood that, given additional time, appellant could comply with the
recommendations of the court and complete her case plan. The court’s order terminating
appellant’s parental rights was entered on April 1, 2016, and included the court’s findings that
DHS had proved two grounds for termination by clear and convincing evidence: (1) the
children had been adjudicated dependent-neglected, had been out of the parent’s custody for
twelve months, and the parent had failed to remedy the conditions that caused their removal;
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Cite as 2016 Ark. App. 480and (2) aggravated circumstances, that being little likelihood that services to the family would
result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (ix) (Repl. 2015).
The court specifically found that DHS had made reasonable efforts to provide family services
and to finalize a permanency plan for the children but that appellant still lacked stable
housing, failed to complete drug treatment, continued to have positive drug screens
throughout the case, failed to complete the counseling recommended in her psychological
evaluation, and failed to complete or show proof of completion of parenting-without-
violence classes.
The court also found that it was in the children’s best interest to terminate appellant’s
parental rights, specifically considering adoptability and potential harm. The court found that
the juveniles were adoptable based on Ms. Walton’s testimony and the history of the case,
including the fact that the children were healthy and had no conditions that would bar
adoption. The court found that the children would be at great risk of potential harm due to
appellant’s lack of stable housing and there being little likelihood that continued services to
the family would result in successful reunification.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist,
in addition to a finding that it is in the child’s best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341. In making
a “best interest” determination, the trial court is required to consider two factors: (1) the
likelihood that the child will be adopted and (2) the potential harm to the child if custody
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Cite as 2016 Ark. App. 480is returned to a parent. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d
703. Adoptability is not an essential element but is rather a factor that the trial court must
consider. Id. Likewise, the potential harm to the child is a factor to be considered, but a
specific potential harm does not have to be identified or proved by clear and convincing
evidence. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, at 9, 444 S.W.3d 366,
372. Credibility determinations are left to the fact-finder. Id. at 8, 444 S.W.3d at 371.
For her first point on appeal, appellant contends that the evidence was insufficient to
support either of the court’s findings of grounds for termination. One ground is sufficient to
support the court’s termination of parental rights. King v. Ark. Dep’t of Human Servs., 2016
Ark. App. 368, at 5. We turn to the court’s finding of aggravated circumstances, specifically
that there is little likelihood that services to the family will result in successful reunification.
At the time this case was initiated, a protective-services case had been opened on the family
in St. Francis County two months earlier as a result of appellant’s drug use. Throughout this
case, appellant continued to test positive for illegal substances. Although several different
drug-treatment programs were recommended and offered, appellant refused to address her
drug issues or complete a treatment program. Appellant continued to demonstrate an inability
or unwillingness to accept rehabilitation services offered by DHS to address her drug use.
The circuit court’s finding that there was little likelihood that continued services to the
family would result in successful reunification is not clearly erroneous. Because we find no
clear error with the circuit court’s finding on this ground, it is unnecessary to address the
second ground. Sarut v. Ark. Dep’t of Human Servs., 2015 Ark. App. 76, at 9, 455 S.W.3d
7Cite as 2016 Ark. App. 480341, 347.
Next, appellant argues that the evidence was insufficient to demonstrate that
termination was in the best interest of her children. Specifically, she contends that there was
insufficient evidence for the court to consider adoptability because the only testimony
regarding this issue was from the assigned DHS case worker, who gave no factual basis for
her opinion. She also argues that there was insufficient evidence to support the trial court’s
conclusion that the children faced a substantial risk of harm if returned to her.
First, the circuit court is not required to find by clear and convincing evidence that
the children are adoptable but merely must consider the likelihood of adoption if parental
rights are terminated. Miller v. Ark. Dep’t of Human Servs., 2016 Ark. App. 239, at 7, 492
S.W.3d 113, 117. Generally, a caseworker’s testimony that a child is adoptable is sufficient
to support an adoptability finding. Abram v. Ark. Dep’t of Human Servs., 2016 Ark. App. 437,
at 4. The caseworker in this case, who knew the children, testified that the children were
adoptable. The court specifically found that the children were adoptable based on the
caseworker’s testimony, the history of the case, and the fact that the children were healthy
and had no conditions that would bar adoption. Second, the court found that the children
were at great risk of potential harm if returned to appellant given her lack of stable housing
and continued drug use.1 The potential-harm analysis is to be conducted in broad terms. Pine,
2010 Ark. App. 781, at 11, 379 S.W.3d at 709. It is the “best interest” finding that must be
1
We note also that appellant had not attended counseling or completed parenting-
without-violence classes.
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Cite as 2016 Ark. App. 480supported by clear and convincing evidence. Id. We hold that the court’s finding that it was
in the children’s best interest to terminate appellant’s parental rights was not clearly
erroneous.
Finally, appellant argues that we should reverse the termination because DHS was
considering the children’s paternal grandmother for placement, and the law allows additional
time to place the child with a relative. As authority, she cites Ark. Code Ann. § 9-28-105.
This statute provides that, in custodial placements by DHS “in foster care or adoption,”
preferential consideration shall be given to an adult relative over a nonrelated caregiver if the
relative meets all of the relevant child-protection standards and it is in the best interest of the
child to be placed with the relative. Ark. Code Ann. § 9-28-105. The record does not reflect
that appellant raised this issue to the circuit court. Therefore, this argument is not preserved
for appeal. Landis-Maynard v. Ark. Dep’t of Human Servs., 2011 Ark. App. 673, at 7, 386
S.W.3d 641, 646.
Affirmed.
WHITEAKER and HOOFMAN, JJ., agree.
Dusti Standridge, for appellant.
Mary Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
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