Claire Hooker v. Arkansas Department of Human Services and Minor Child , 2023 Ark. App. 99 ( 2023 )

Cite as 2023 Ark. App. 99ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-621
CLAIRE HOOKER Opinion Delivered February 22, 2023
APPELLANT
APPEAL FROM THE UNION
COUNTY CIRCUIT COURT
V. [NO. 70JV-21-38]
ARKANSAS DEPARTMENT OF HUMAN HONORABLE EDWIN KEATON,
SERVICES AND MINOR CHILD JUDGE
APPELLEES
AFFIRMED
CINDY GRACE THYER, Judge
Claire Hooker appeals an order of the Union County Circuit Court terminating
her parental rights to her daughter. On appeal, she does not challenge the circuit court’s
determination that there was sufficient evidence to support the statutory grounds necessary
for termination. Instead, she argues that the circuit court erred in finding that termination
was in the child’s best interest; specifically, she contends that the court erred in not
considering whether termination was the least restrictive disposition available. Because her
argument is not preserved for our review, we affirm.
I. Factual and Procedural Background
The Arkansas Department of Human Services (DHS) took Claire’s two children,
Minor Child 1 (MC1) (born 04/20/18) and Minor Child 2 (MC2) (born 02/27/17), into
custody on May 5, 2021, after Claire was arrested on multiple theft charges; and her
mother, with whom Claire had left the children, was also arrested on drug charges. DHS’s
petition for emergency custody and dependency-neglect named James Moore as the parent
of both children because he was married to Claire at the time of their births; however, the
petition also named Joshua Larry as MC1’s putative parent. After taking a seventy-two-hour
hold on both children, DHS placed MC2 with Moore and released the hold on him.1 In
addition, Joshua’s parents, Pamela and Jason Willis, completed paperwork to be
considered as a provisional placement for MC1, and they later became MC1’s foster
placement.
The circuit court entered an ex parte order for emergency custody on May 7, placing
MC1 in DHS’s custody. A May 28 order found probable cause that the emergency
conditions that necessitated removal of MC1 continued.2 MC1 was adjudicated dependent-
neglected in an order entered on July 21, 2021. At that time, the goal of the case was
1
Claire’s arguments on appeal pertain solely to the termination of her parental rights
as to MC1. During the course of this case, MC2 was placed in James’s permanent custody,
and the case was closed as to him. In addition, Moore executed a voluntary consent to the
termination of his parental rights to MC1. He is not a party to this appeal.
2
We briefly address the timeline of this case as it relates to Joshua Larry, even
though he is not a party to this appeal, because MC1 was put in a foster placement with his
parents. The probable-cause order directed Joshua to submit to DNA testing to determine
paternity as to MC1. In the adjudication order, the court reserved the issue of whether
Joshua had presented evidence proving that he had established significant contacts with
MC1. In the September review order, the court received a DNA report showing a 99.9997
percent probability that Joshua is MC1’s biological father. The court did not make a
finding regarding Joshua’s legal status as a parent at that time, however. At the
permanency-planning hearing, the court found that Joshua, as a putative parent, had failed
to appear before the court and had failed to show any interest in MC1. Because he had not
established paternity, he was dismissed from the case.
2
established as reunification, and Claire was ordered to complete various services. The case
was reviewed in September 2021. At that time, the court found that Claire had partially
complied with the case plan and that the goal of the case remained reunification.
Subsequent review orders in December 2021 and March 2022 made essentially the same
findings.
A permanency-planning hearing was held in April 2022. The court determined that
the goal of the case should be authorizing a plan for adoption, noting that MC1 was “being
cared for by a relative and termination of parental rights is in [her] best interest.” The court
found that Claire had not made significant, measurable progress toward achieving the goals
of the case and had not worked diligently toward reunification. The court cited Claire’s
incarceration, her lack of suitable housing, and her noncompliance with the case plan and
court orders as the safety concerns that prevented MC1 from being returned to her
custody.
DHS filed a petition to terminate Claire’s parental rights to MC1 on May 9, 2022,
alleging twelve months failure to remedy, subsequent other factors, and aggravated
circumstances as grounds. A termination hearing was held on June 20, 2022. Ieshia
Howard, the DCFS caseworker, testified about the circumstances surrounding MC1’s
removal from Claire’s custody. Howard then spoke about the services DHS had offered
Claire throughout the case, including parenting classes, a psychological examination,
counseling, a drug assessment, random drug screens, worker contacts, foster care,
transportation, and supervised visitation. Claire completed a substance-abuse assessment,
3
which recommended that she complete a sixteen-week outpatient program and then
continue in group and individual sessions; however, Claire did not comply with that
recommendation and attended only four of the sixteen sessions. Although Claire started
inpatient treatment, she left the program within twenty-four hours. She also failed to
complete her parenting classes.
Howard noted that Claire had been arrested on March 9, 2022, and had therefore
been in jail at the time of the permanency-planning hearing. Claire was released from jail
on June 7, 2022, and contacted Howard on June 17 to discuss the termination hearing.
According to Howard, Claire “asked if it can be guardianship instead of adoption.” She did
not elaborate any further on this comment, however.
Howard also addressed the other services recommended and provided by DHS.
Claire’s psychological evaluation recommended counseling, and while she started
counseling, she quit going prior to her arrest and had her file with the counseling office
closed. As for visitations, Claire had missed sixteen of the twenty-five potential visits since
the beginning of the year. When asked about what potential harm could befall MC1 if
returned to Claire’s custody, Howard explained that Claire lacked suitable housing, there
would be possible drug exposure, and there was the possibility that she could be
incarcerated again.3
3
On cross-examination, Howard clarified that Claire had pending charges in
Calhoun County for furnishing prohibited articles to a prisoner. In addition to the theft
charges that opened the DHS case, Claire had also been arrested the previous August for
hindering apprehension and had new charges for forgery and theft of property.
4
Haley Callison, an adoption specialist, testified that there are no medical or physical
barriers to adoption for MC1. A data match showed 330 potential families, and in
addition, her paternal grandparents, the Willises, wanted to adopt her.
Claire also testified at the hearing about her housing situation, her employment,
and her compliance with the case plan. She conceded that she had not completed any of
the components of the case plan, admitting that she had gone to only one parenting class
and had left rehab after twenty-four hours. She agreed that MC1 is adoptable and that her
current placement is a good one for her. She denied that termination is in MC1’s best
interest, however, asserting only that the child would be safe with her.
At the conclusion of the hearing, the court granted DHS’s petition to terminate
Claire’s parental rights, finding that she had not availed herself of any of the services DHS
had provided. The court noted she had not visited with MC1, did not complete treatment
or individual counseling, had been incarcerated and still had pending criminal charges,
and had not gotten herself to a point where the court believed MC1 could be safely
returned to her. The court also found that aggravated circumstances existed, concluding
that further services would not result in successful reunification because of her lack of
participation and cooperation with the case plan.
The court reiterated these findings in its subsequent written order terminating
Claire’s parental rights. The court also found that MC1 is adoptable, citing Claire’s own
testimony, and that she would be subjected to potential harm if returned to Claire’s
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custody because of the inappropriate nature of her home. Claire filed a timely notice of
appeal.
II. Standard of Review
Termination of parental rights is a two-step process requiring a determination that
the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark.
Dep’t of Hum. Servs., 2016 Ark. App. 227, 491 S.W.3d 153. The first step requires proof of
one or more statutory grounds for termination; the second step, the best-interest analysis,
includes consideration of the likelihood that the juvenile will be adopted and of the
potential harm caused by returning custody of the child to the parent. Id. Statutory
grounds and a best-interest finding must be proved by clear and convincing evidence,
which is the degree of proof that will produce in the fact-finder a firm conviction regarding
the allegation sought to be established. Id.We review termination-of-parental-rights cases de novo. Gilbert v. Ark. Dep’t of Hum.
Servs., 2020 Ark. App. 256, 599 S.W.3d 725. The appellate inquiry 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 reviewing court on the entire evidence is left with a definite and firm conviction that a
mistake has been made. Id.III. Discussion
As noted above, Claire does not challenge the circuit court’s findings regarding the
statutory grounds for termination, nor does she challenge the court’s best-interest findings
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regarding adoptability and potential harm.4 Thus, any challenge relating to these grounds is
waived. See Aslakson v. Ark. Dep’t of Hum. Servs., 2021 Ark. App. 460, 637 S.W.3d 311;
Phillips v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 383, 585 S.W.3d 703.
Instead, on appeal, Claire argues that the circuit court erred in finding that
termination of her parental rights was in MC1’s best interest because permanent custody
with Pamela and Jason Willis would have been a less restrictive alternative to termination.
In addition, she argues that the circuit court should have considered “other best-interest
factors,” such as those described in Phillips, supra,5 in deciding whether termination was in
MC1’s best interest.
Claire failed to raise this argument before the circuit court, however, and we are
therefore precluded from considering it on appeal. See Jackson v. Ark. Dep’t of Hum. Servs.,
2021 Ark. App. 319, at 5 (rejecting mother’s family-relationship argument when she did
4
Although Claire’s point on appeal asserts that the court erred in finding that she
posed a risk of harm to her daughter, this argument is not developed in the remainder of
her brief and is therefore considered abandoned. See Benedict v. Ark. Dep’t of Hum. Servs., 96
Ark. App. 395, 409, 242 S.W.3d 305, 316 (2006).
5
In Phillips, 2019 Ark. App. 383, at 12, 585 S.W.3d at 709–10, this court noted that
while a circuit court must consider the likelihood of adoption and potential harm in
determining whether termination is in a child’s best interest, it may consider other factors,
such as
the preservation of the children’s relationship with a grandparent; the severance of
child support from a parent; whether a less drastic measure could be employed such
as a no-contact order or supervised visitation; whether continued contact with the
parent would be beneficial to the children if or when the children are living with a
relative and not in an indeterminate state that is working against them; and whether
the children are living in continued uncertainty.
.
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not raise it to the circuit court and noting that “[e]ven in a case involving termination of
parental rights where constitutional issues are argued, we will not consider arguments
made for the first time on appeal.” (citing Myers v. Ark. Dep’t of Hum. Servs., 91 Ark. App.
53, 208 S.W.3d 241 (2005)); see also Cole v. Ark. Dep’t of Hum. Servs., 2020 Ark. App. 481,
at 11–12, 611 S.W.3d 218, 224–25 (mother’s failure to raise less-restrictive relative-
placement argument to the circuit court precluded consideration of the issue on appeal).
In this case, although caseworker Howard mentioned that Claire had asked whether
“it can be guardianship instead of adoption,” Claire herself never presented the argument
to the circuit court, and the circuit court never ruled on the issue. Accordingly, it is not
preserved for our review. See Mitjans v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 472, 561
S.W.3d 747 (issues not raised below are not preserved for appeal).
Affirmed.
WOOD and BROWN, JJ., agree.
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for
appellee.
Dana McClain, attorney ad litem for minor child.
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