Brasher v. Ark. Dep't of Human Servs. , 527 S.W.3d 756 ( 2017 )

Cite as 2017 Ark. App. 455ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-73
Opinion Delivered: September 20, 2017
BRITTNEY BRASHER
APPELLANT
APPEAL FROM THE BOONE
V. COUNTY CIRCUIT COURT
[NO. 05JV-14-90]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILD
APPELLEES HONORABLE DEANNA “SUZIE”
LAYTON, JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Brittney Brasher appeals the Boone County Circuit Court order terminating her
parental rights to her daughter, D.M. 1 On appeal, she argues that the circuit court erred in
finding that it was in D.M.’s best interest to terminate her parental rights. We affirm.
On December 8, 2014, the Arkansas Department of Human Services (DHS)
petitioned the circuit court for emergency custody and dependency-neglect over D.M. The
affidavit attached to the petition stated that D.M.’s father had left her in the custody of her
maternal great-grandparents and that their residence was inappropriate for the child. 2 The
1
The court also terminated the parental rights of D.M.’s father, Daniel Miller, but he
is not a party to this appeal.
2
Specifically, the affidavit stated that the residence had “a plethora of roaches” on the
walls and kitchen cabinets and that trash was piled on the floor. It also stated that D.M.’s
maternal great-grandmother had a history with DHS that included findings of
environmental neglect.
Cite as 2017 Ark. App. 455affidavit noted that Brasher was incarcerated in Texas for a child-endangerment charge and
that the State of Arkansas had terminated her parental rights to two other children as a result
of her methamphetamine addiction. The court entered an ex parte order for emergency
custody on the day the petition was filed. On December 12, 2014, the court found probable
cause for the emergency custody. On February 24, 2015, the court adjudicated D.M.
dependent-neglected.
On May 13, 2015, the court held a review hearing. Brasher appeared for the hearing
by telephone because she remained incarcerated in Texas. The court ordered Brasher to
comply with the case plan and court orders and to cooperate with DHS.
On August 11, 2015, the court held a second review hearing. The court noted that
Brasher had been released from jail in Texas in May 2015 but that she did not contact DHS
until the current hearing, she had not visited D.M., and she had not complied with the case
plan. The court changed the goal of the case to adoption but ordered Brasher to continue
to comply with the case plan. Specifically, the court ordered her to provide paycheck stubs
to DHS, to attend counseling, and to submit to random drug screens.
On February 9, 2016, the court held a permanency-planning hearing. The court
found that Brasher had not complied with the case plan. The court noted that Brasher was
arrested in November 2015 on an old warrant for a parole violation in Arkansas and had
remained incarcerated through December 15, 2015. The court further noted that she had
not consistently visited D.M., had attended only a few counseling sessions, and did not have
steady employment.
2
Cite as 2017 Ark. App. 455On July 18, 2016, DHS filed a petition for termination of Brasher’s parental rights.
DHS alleged five grounds for termination. 3 On August 17 and 23, the court held a
termination hearing. Brasher testified that she was currently living with her fiancé, Jeffery
Muldoon. She explained that they had lived together for a little over a year and planned to
move into a bigger house. She stated that she was working temporary jobs for family and
friends and that she also had filed for disability due to her seizures and anxiety. She testified
that Muldoon is employed and that their joint income is sufficient to support D.M. She
further noted that Muldoon had a previous drug addiction and that he was currently on
probation.
Brasher explained that when she was released from prison in Texas, she did not
immediately contact DHS because she did not have transportation back to Arkansas. She
noted that a friend eventually paid for her transportation to Arkansas, and when she
returned, she again did not contact DHS because she did not have a stable home. Her
grandmother later informed her about the August 2015 review hearing.
Brasher testified that D.M. first entered the foster-care system in North Dakota in
2012, when she was born with methamphetamine in her system. She stated that she had
two other children, L.M. and A.M., and that her parental rights had been terminated to
them. As to the current case, she testified that she had attended scheduled visitations with
D.M. unless her seizure disorder prevented her from attending.
3
Specifically, DHS alleged grounds pursuant to Arkansas Code Annotated sections 9-
27-341(b)(3)(B)(i)(a), (ii)(a), (iv), (ix), (vii)(a) (Repl. 2015).
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Cite as 2017 Ark. App. 455Brasher further testified that drugs had been a problem throughout her life and that
her “drug of choice” is methamphetamine. She explained that she had participated in the
drug-court program in 2009 but had relapsed. She stated that she has now been sober for
four years. She explained that she reentered the drug-court program about six months before
the hearing and hoped to complete the program by March 2018. If she failed, she would
receive a six-year prison sentence. Brasher testified that she chairs Narcotics Anonymous
meetings and that she also attends a Christian-based program called “Breaking the Chains.”
She testified that DHS had referred her for a drug-and-alcohol assessment but that she did
not complete the assessment because she had already completed an assessment in drug court.
She also participated in counseling through drug court.
At the hearing, Brasher introduced into evidence a letter from the deputy prosecutor.
In the letter, the prosecutor commended Brasher on her performance in the drug-court
program and stated that “she is one of the more pleasant people in drug court.” However,
the prosecutor further noted that as a result of her criminal history, Brasher began the
program with three strikes. He explained that if Brasher tests positive for an illegal substance
or alcohol, or is charged with a jailable offense, she will be terminated from the program
and will automatically receive a six-year sentence in the Arkansas Department of Correction.
Charles Hurley, a DHS family-service supervisor, testified that he oversaw D.M.’s
case. He stated that for eight of the twelve months he supervised the case, Brasher was
incarcerated. He further verified that Brasher did not contact DHS when she was initially
released from prison in Texas. He stated that when Brasher eventually contacted DHS, he
made a drug-and-alcohol-assessment referral and counseling appointments but that Brasher
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Cite as 2017 Ark. App. 455did not complete the assessment and attended only fifty-eight percent of the counseling
sessions. Hurley believed that Brasher had made measurable progress in the case but that her
living situation, her work situation, and her relationship status were unstable. He noted that
during the May 2015 hearing, when Brasher appeared by telephone while in prison in
Texas, Brasher stated that she planned to continue her relationship with D.M.’s father; but
after she was released from prison, she did not contact DHS and started a relationship with
Muldoon shortly thereafter. Hurley also pointed out that D.M. had been in foster care for
thirty months of her forty-two-month life. He further testified that D.M. is highly adoptable
and that individuals had expressed interest in adopting her.
Beth Christopher, a DHS family-service worker, testified that she supervised
Brasher’s visitations with D.M. She stated that the visits generally went well and that she
eventually would leave Brasher alone with the child for short increments of time. She noted,
however, on a few occasions, she had to cancel visitations because Brasher appeared to be
heavily medicated. She acknowledged that Brasher took seizure medications.
Carly Williams, also a DHS family-service worker, testified that she had worked on
D.M.’s case for about twenty-eight days beginning in July 2016. She stated that Brasher had
not provided her with documentation of employment. She explained that Brasher originally
told her that she was a Mary Kay consultant but that she later admitted she was not
generating income and planned to quit. She stated that as of last week, Brasher had no
income besides support from Muldoon.
Muldoon testified that in March 2011, he served a four-year prison sentence for
possession of methamphetamine. He stated that since his release, he has maintained his
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Cite as 2017 Ark. App. 455sobriety and has complied with his parole requirements. He noted that his parole would end
next month and that he is employed full time. Muldoon further testified that Brasher takes
medications only for her seizures and that she has maintained her sobriety throughout their
relationship. He had no concerns with her ability to parent D.M. Muldoon is committed to
supporting Brasher and D.M. financially, and he hopes to adopt D.M. when he and Brasher
marry.
Tammy Dewey, Brasher’s drug-court supervisor, testified that Brasher has been in
the program since January 19, 2016, she meets with Brasher twice a week, and Brasher had
missed only two meetings. She further stated that she had no reason to believe that Brasher
is using any illegal substances. She noted that Brasher has about twenty-four weeks left to
complete the program. She testified that Brasher is cooperative, stable, and very polite.
Dewey discussed Brasher’s previous participation in the program in 2009 and stated that
Brasher is now a different person. She stated that Brasher was consistently abusing drugs at
that time and that she absconded from the program within six months.
Yolande Watson, Brasher’s probation officer, testified that Brasher is polite and
cooperative and has tested negative on all drug screens. She stated that Brasher is required
to attend three Narcotics Anonymous meetings per week and that she has consistently
submitted documentation of her attendance. She further testified that Brasher is always
willing to participate in drug-court community-service events. At the conclusion of the
hearing, the court took the matter under advisement.
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Cite as 2017 Ark. App. 455On November 9, 2016, the court entered a written order terminating Brasher’s
parental rights based on three grounds pled in the petition. In the order, the court specifically
found that
there is a potential harm to the health and safety of [D.M.] if she were returned to the
custody of [Brasher] today. At this time [D.M.] has been in care, as indicated, almost half
of her life and today the Court cannot find that the health and safety needs can be met
by returning [D.M.] to the home of [Brasher] . . . .
[Brasher] was released from prison on May 29, 2015, however [she] did not appear in
this Court or make contact with the Department until August 11, 2015. [Brasher] is still
dependent on others for her accountability and her own necessities. [Brasher] does not
have sufficient income, she does not have housing that she can sustain on her own or a
means thereto, she has not addressed her mental health needs, she has significant criminal
barriers for which she risks incarceration daily, and she is currently addressing substance
abuse issues, however, she has addressed those in the past with drug treatment and drug
court and both were unsuccessful on multiple occasions. [Brasher] is once again engaged
in a drug court program for which there is oversight and accountability. Without such
oversight and accountability, the Court finds that she would not be successful and that
the past has been an indicator of the future of her in regards to drugs and criminal activity
for which this case began with . . . .
The instability, given the age of [D.M.], would cause further harm to the child
emotionally at such a young age and place her at risk due to the lifestyle of the parents
reflected in testimony as one involving ongoing criminal activity and associations . . . .
The Court finds by clear and convincing evidence it is in the best interest of the Juvenile
to terminate the parental rights of . . . Brasher . . . and the Court specifically considered
the likelihood of [D.M.] to be adopted if termination is granted and the potential harm
to the health and safety of [D.M.] caused by returning to the custody of the parents
today, and the Court finds the testimony demonstrates same.
Brasher timely appealed the termination order to this court.
We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of
Human Servs., 2015 Ark. App. 131, 456 S.W.3d 383. It is DHS’s burden to prove by clear
and convincing evidence that it is in a child’s best interest to terminate parental rights as
well as the existence of at least one statutory ground for termination. Id. On appeal, the
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Cite as 2017 Ark. App. 455inquiry is whether the circuit 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 appellate court, on the entire evidence, is left with a
definite and firm conviction that a mistake has been made. Id. We give a high degree of
deference to the circuit court, as it is in a far superior position to observe the parties before
it and judge the credibility of the witnesses. Id.The termination of parental rights is a two-step process. The circuit court must find
by clear and convincing evidence (1) the existence of one or more statutory grounds for
termination and (2) that termination is in the best interest of the children. Wafford v. Ark.
Dep’t of Human Servs., 2016 Ark. App. 299, 495 S.W.3d 96. In this case, Brasher does not
appeal the circuit court’s finding of a statutory ground for termination. She challenges only
the circuit court’s best-interest finding.
The best-interest analysis includes consideration of the likelihood that the children
will be adopted and of the potential harm caused by returning custody of the children to
the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). However, adoptability and
potential harm are merely factors to be considered—they are not elements of the cause of
action and need not be established by clear and convincing evidence. See Chaffin v. Ark.
Dep’t of Human Servs., 2015 Ark. App. 522, 471 S.W.3d 251. Rather, after considering all
of the factors, the circuit court must find by clear and convincing evidence that termination
of parental rights is in the best interest of the children. Id.Brasher does not challenge the court’s adoptability finding. Instead, she argues that
the court erred in finding that she posed a risk of harm to D.M. She asserts that the court
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Cite as 2017 Ark. App. 455automatically terminated her rights merely because her parental rights had been terminated
to her other children. She argues that there was no connection between the harm present
in the prior case and the level of risk of harm to D.M. in this case. She notes that in the
present case, she benefited from DHS services and is ready for D.M. to return to her custody.
We hold that the circuit court did not clearly err in finding that it was in the best
interest of D.M. to terminate Brasher’s parental rights. The court did not automatically
terminate Brasher’s parental rights because her rights had been terminated in the past. The
court relied on Brasher’s current circumstances in concluding that it was not in D.M.’s best
interest to return to Brasher’s custody. Specifically, the court noted Brasher’s dependence
on others for income and housing and her unresolved criminal charges. Brasher had
significant time remaining in the drug-court program, and if she failed, she could be
sentenced to the Arkansas Department of Correction for six years. The court recognized
that Brasher had made some progress in the program but noted that she had entered the
program in the past, had been unsuccessful, and had not exhibited sobriety without the
oversight of a treatment program. As the court noted in its order, we have held that it is
appropriate for a circuit court to consider a parent’s past behavior as a predictor of likely
potential harm should the children be returned to the parent’s custody. Harbin v. Ark. Dep’t
of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. Moreover, D.M. had already spent
more than half of her life in foster care. “Stability and permanence for children are the
objectives of the TPR procedure, and living in continued uncertainty is itself potentially
harmful to the children.” See Bean v. Ark. Dep’t of Human Servs., 2017 Ark. App. 77, at 30,
513 S.W.3d 859, 877. Given this evidence and the circuit court’s detailed and well-reasoned
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Cite as 2017 Ark. App. 455termination order, we are not left with a definite and firm conviction that a mistake has
been made. Accordingly, we hold that the circuit court did not err in finding that it was in
the best interest of D.M. to terminate Brasher’s parental rights.
Affirmed.
VAUGHT and HIXSON, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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