Henson v. Arkansas Department of Human Services , 434 S.W.3d 371 ( 2014 )

Cite as 2014 Ark. App. 225ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-1076
DOUGLAS HENSON and SHANNON Opinion Delivered April 9, 2014
COOPER-HENSON
APPELLANTS APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. ELEVENTH DIVISION
[NO. 60JV-13-440]
ARKANSAS DEPARTMENT OF HONORABLE PATRICIA JAMES,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellants Douglas Henson and Shannon Cooper-Henson had their parental rights
to their children, S.H. and E.H., terminated by an order of the Pulaski County Circuit
Court. On appeal, both argue—in separate briefs—that the circuit court’s order was not
supported by clear and convincing evidence. We find no error and affirm.
I. Procedural History
This family has had an extensive history with the Arkansas Department of Human
Services (DHS). This is the second time that S.H. and E.H. have been removed from the
care of the appellants. The first removal occurred in April 2010 based on a finding of
Cite as 2014 Ark. App. 225inadequate supervision and substance abuse.1 The circuit court adjudicated the children
dependent-neglected and ordered numerous services for Shannon and Douglas, including
drug and alcohol assessments and treatment. After S.H. and E.H. had been out of their
parents’ custody for over a year and a half, the court returned custody to the parents in early
2012 and entered an agreed order to close the case.
Less than a year later, however, the second removal occurred. In February 2013,
DHS filed a petition for ex parte emergency custody of S.H. and E.H., again for allegations
of inadequate supervision, as well as criminal and drug activity by the appellants. DHS
received a report stating that Shannon had dropped the children off with an intoxicated man
and then stolen the man’s truck. DHS also received information that both Shannon and
Douglas had been involved in a shoplifting, that Douglas had fled the scene, and that
Shannon had been arrested and charged with theft by receiving. A methamphetamine pipe
was also found in the truck that Shannon and Douglas had been driving. After Douglas was
apprehended, he was charged with manufacturing methamphetamine, fleeing, and
absconding.
The circuit court entered an ex parte order for emergency custody, finding that first
contact with DHS arose during an emergency when preventative services could not be
provided. The court noted that both parents had pending criminal charges, and “therefore,
[DHS] is deemed to have made reasonable efforts to prevent or eliminate the need for
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DHS was contacted after Shannon failed to pick up an older sibling from day care
and then did not inquire about his whereabouts for a few days; when DHS contacted her
about this situation, she tested positive for drugs. DHS removed all three children.
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Cite as 2014 Ark. App. 225removing the juveniles from the juveniles’ home.” The court subsequently made a probable-
cause finding. Prior to adjudication, DHS filed a motion for no reunification services,
asserting that there was little likelihood that services to the parents would result in successful
reunification, citing its extensive history with the family and recent provision of services to
the appellants.
The circuit court held a combined hearing on adjudication and DHS’s motion. The
court adjudicated S.H. and E.H. dependent-neglected, finding specifically that the children
had been subjected to neglect, in the form of failure to protect and inadequate supervision,
as well as parental unfitness. The court also found by clear and convincing evidence that the
motion for no reunification services should be granted.
DHS subsequently filed a petition for termination of parental rights, alleging that the
children had been subjected to aggravated circumstances, in that a determination had been
made by a judge that there was little likelihood that services to the family would result in
successful reunification. Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i)
(Repl. 2009). DHS also alleged the “other factors or issues” ground found in Arkansas Code
Annotated section 9-27-341(b)(3)(B)(vii)(a) (Repl. 2009), noting “new concerns” involving
allegations that S.H. had seen Douglas naked and that the children had witnessed their
parents having sexual relations.
The circuit court found by clear and convincing evidence that DHS had proved both
the aggravated-circumstances and “other factors” grounds. The court also found that the
children were adoptable and that the termination was in the children’s best interest.
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Cite as 2014 Ark. App. 225Accordingly, the court granted DHS’s motion to terminate Shannon and Douglas’s parental
rights. Both Shannon and Douglas filed timely notices of appeal, and both now assert that
there was insufficient evidence to support the circuit court’s decision.
II. DHS’s Procedural Argument
At the outset, we acknowledge DHS’s suggestion that Shannon and Douglas are
procedurally barred from challenging the circuit court’s finding that they subjected the
children to aggravated circumstances. DHS argues that this finding was originally made in the
no-reunification-services order, which Shannon and Douglas could have appealed. Having
failed to do so, DHS contends, they are barred from raising this issue on appeal. See, e.g.,
Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). We disagree.
Rule 6-9(a) of the Rules of the Arkansas Supreme Court sets out which orders are
appealable in dependency-neglect cases, providing in pertinent part as follows:
(1) The following orders may be appealed from dependency-neglect
proceedings:
(A) adjudication order;
(B) disposition, review, no reunification, and permanency planning order if the
court directs entry of a final judgment as to one or more of the issues or parties based upon the
express determination by the court supported by factual findings that there is no just reason for
delay of an appeal, in accordance with Ark. R. Civ. P. 54(b).
(C) termination of parental rights.
Ark. Sup. Ct. R. 6-9(a) (2013) (emphasis added). The circuit court here entered an order
captioned “Adjudication/No Reunification Services Order,” with a finding of aggravated
circumstances made in conjunction with the court’s finding that no further reunification
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Cite as 2014 Ark. App. 225services would be provided. There is no language, however, either in this portion of the
order or anywhere else in the order, comporting with Rule 6-9(a)(1)(B)’s requirement that
the court include the equivalent of a Rule 54(b) certificate.
In Schubert v. Arkansas Department of Human Services, 2009 Ark. 596, at 5, 357 S.W.3d
458, 461, the supreme court stated that, “[p]ursuant to Rule 6-9(a)(1)(B), disposition, review,
[no reunification,] and permanency planning orders are only appealable . . . if the court enters
an order in compliance with Ark. R. Civ. P. 54(b) (2009). Thus, not every order entered in
a dependency-neglect case can be immediately appealed[.]” See also Stoliker v. Ark. Dep’t of
Human Servs., 2012 Ark. App. 415, at 12–13, ___ S.W.3d ___, ___ (refusing to reach father’s
arguments regarding circuit court’s disposition order where there was no Rule 54(b)
certificate addressing that order). Thus, where, as here, there is no Rule 54(b) language, there
is no final order from which Shannon and Douglas could have appealed on the no-
reunification-services issue. Accordingly, Shannon and Douglas’s arguments are not
procedurally barred, and we turn to the merits of their appeals.
III. Standard of Review
Our standard of review in cases involving the termination of parental rights is well
established. Arkansas Code Annotated section 9-27-341(b)(3) requires an order terminating
parental rights to be based upon clear and convincing evidence. First, section 9-27-
341(b)(3)(A) requires a finding by clear and convincing evidence that termination is in the
best interest of the juveniles, including consideration of the likelihood that they will be
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Cite as 2014 Ark. App. 225adopted and the potential harm caused by returning custody of them to the parent.2 Next,
the order terminating parental rights also must be based on a showing of clear and convincing
evidence as to one or more of the grounds for termination listed in section 9-27-
341(b)(3)(B). The grounds relied on by the trial court in this case were as follows:
(vii) (a) That other factors or issues arose subsequent to the filing of the original
petition for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to the custody of the parent.
....
(ix)(a) The parent is found by a court of competent jurisdiction . . . to:
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) A . . . determination has been made by a judge that there is little likelihood
that services to the family will result in successful reunification[.]
Clear and convincing evidence is that degree of proof that will produce in the fact-
finder a firm conviction as to the allegation sought to be established. Camarillo-Cox v. Ark.
Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). When the burden of proving
a disputed fact is by clear and convincing evidence, the question that must be answered on
appeal is whether the trial court’s finding that the disputed fact was proven by clear and
convincing evidence was clearly erroneous. A finding is clearly erroneous when, although
2
Neither Shannon nor Douglas challenges the circuit court’s best-interest
determination, arguing only that the evidence did not support the court’s finding that the
statutory grounds had been proved.
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Cite as 2014 Ark. App. 225there 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. Such cases are reviewed de
novo on appeal. Calahan v. Ark. Dep’t of Human Servs., 2013 Ark. App. 508, ___ S.W.3d
___. However, we do give a high degree of deference to the trial court, as it is in a far
superior position to observe the parties before it and to judge the credibility of the witnesses.
Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
IV. Shannon Cooper-Henson’s Appeal
Shannon argues that the circuit court’s finding of aggravated circumstances was not
proved by clear and convincing evidence. She cites her four months of sobriety before the
termination hearing, her efforts to improve herself even after DHS quit providing
reunification services, her employment, and the testimony from a DHS caseworker that she
had become “a different mom.” Thus, she argues, the circuit court erred in finding that there
was little likelihood that services to the family would result in successful reunification.
By the time of the termination hearing, Shannon had been living with her mother
since May 2013 and had been working since March 2013; she was in outpatient drug
treatment; she was aware of her drug and alcohol problems; and she was currently going to
AA/NA meetings three times a week. All of these efforts were taken on her own despite the
finding of no-reunification efforts by the court. She admitted, however, that she continued
to have unresolved criminal charges and had lied to another circuit court on her affidavit of
indigency for the appointment of the public defender.
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Cite as 2014 Ark. App. 225It is also true that the DHS county supervisor, Deidre Notto, noted that Shannon’s
recent actions reflected a change in Shannon. This same witness, however, recommended
that parental rights be terminated “because of the lack of stability [the children] have received
since they have been born.” Notto noted that, after the previous case had been closed, the
children had been back in their mother’s custody less than a year before the new case was
opened. She also noted that most of Shannon’s pursuit of services came only after DHS filed
its no-reunification-services motion, and she said that she felt the instability in Shannon’s life
would continue because she only stepped up her efforts in April, which had “not even [been]
four months.”
The court acknowledged and even applauded the progress that Shannon had made
since the previous hearing and order. The court, however, also considered Shannon’s
extensive history with DHS and found that her eleventh-hour efforts to improve her
situation were “too little, too late.” Further the circuit court specifically found that Shannon
“has no credibility with this court.” The court cited her “many admitted (and discovered)
fabrications in testimony,” and the court wondered why, if Shannon had “truly begun to
rehabilitate her life, . . . she did not make these changes before now or use the skills from
previous services to avoid the children returning to foster care.”
Our standard of review requires us to give great deference to the circuit court’s ability
to observe the parties and to judge their credibility, and we will not reverse a circuit court’s
factual findings unless they are clearly erroneous—that is, unless we are left with a definite
and firm conviction that a mistake has been made. See Camarillo-Cox, supra.8
Cite as 2014 Ark. App. 225In Trout v. Arkansas Department of Human Services, 359 Ark. 283, 197 S.W.3d 486(2004), the supreme court affirmed the termination of a mother’s parental rights based on a
finding of aggravated circumstances where she had not been stable for a sufficient amount
of time to indicate that reunification was possible. Although the mother argued that she had
resolved the problems that had led to the aggravated-circumstances finding, the supreme
court held that to give the mother more time to comply would only ignore the fact that she
had consistently failed to comply with the court’s orders. Id. at 294, 197 S.W.3d at 493.
The Trout court also considered the purpose of the termination-of-parental-rights
statute, as set out in Arkansas Code Annotated section 9-27-341(a)(3) (Repl. 2009), which
is to “provide permanency in a juvenile’s life in all instances where the return of a juvenile
to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from
the evidence that a return to the family home cannot be accomplished in a reasonable period
of time, as viewed from the juvenile’s perspective.” In affirming the termination of the
mother’s parental rights, the supreme court observed that the circuit court had been in
contact with the family for four years, during which time the mother had repeatedly failed
to comply with the court’s orders. In addition, the supreme court noted that the circuit court
“consistently expressed difficulty with believing [the mother’s] testimony, and it was
appropriate for the judge to consider the history of [her] appearances before him in
determining whether she could be trusted to continue making positive steps.” Trout, 359
Ark. at 295, 197 S.W.3d at 493. Given the circuit court’s experience with the mother and
her persistent failure to comply with the court’s orders, the supreme court held that the
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Cite as 2014 Ark. App. 225circuit court correctly determined that the mother “was either incapable of correcting the
problems or indifferent to the need to do so.” Id., 197 S.W.3d at 493–94.
The similarities between Trout and the present case are significant. In both, the circuit
court had great difficulty in finding the mother to be a credible witness. In both, the court
had been involved with the mother and her family for a number of years and had had
enough experience to ascertain whether the mother’s current progress would continue in the
future. Here, the circuit court specifically noted that it was “terminating [Shannon’s] parental
rights not because of timeline pressure or because she is beyond redemption; it is because the
court is not convinced that these monumental changes will last because they are too new and
too slow in coming.” Given our deference to the court’s credibility determinations, we are
unable to say that the court’s findings were clearly erroneous.
V. Douglas Henson’s Appeal
Douglas argues that the circuit court erred in terminating his rights because DHS
made no effort to assist him in reunification.3 Douglas admits that he is currently incarcerated
3
Douglas has also filed a pro se “Motion for Judicial Notice of Adjudicative Facts,”
asking this court to take judicial notice of numerous matters. He alleges that DHS failed to
adequately investigate the facts leading to termination, that DHS’s investigation was not
impartial, and that he was denied the effective assistance of counsel throughout the
proceedings. We decline to take judicial notice of these issues. Under Arkansas Rule of
Evidence 201(b), “[a] judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by [resort] to sources whose accuracy cannot
reasonably be questioned.” As Douglas’s assertions are little more than unfounded
accusations, we decline to take judicial notice of them. Moreover, to the extent that he raises
claims of ineffective assistance of counsel, this argument was never raised below. Arkansas
appellate courts will not consider a claim of ineffective assistance of counsel on appeal unless
it was first raised in the trial court. Fuller v. Ark. Dep’t of Human Servs, 2014 Ark. App. 9.
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Cite as 2014 Ark. App. 225following his arrest for possession of methamphetamine with intent to deliver on the night
the children were taken into DHS custody. (He asserted at the termination hearing that he
intended to accept a plea-bargain offer for five years and hoped to be “out by February.”)
He argues that, while he is “facing serious charges,” he is also attempting to rehabilitate
himself. He further maintains that the circuit court failed to consider the likelihood that
services to him—separate and apart from services to Shannon—would result in successful
reunification with the children.
In Nichols v. Arkansas Department of Human Services, 2013 Ark. App. 504, ___ S.W.3d
___, this court affirmed the termination of a father’s parental rights, rejecting an argument
similar to the one made here. There, the court noted that the father did not take advantage
of any of the services offered by DHS before he was incarcerated, and when he did take
advantage of those services, it was only after the case plan was several months old and after
he had been arrested and imprisoned on a different charge. Most importantly, the court
stated, “there was no indication at the termination hearing that the services he completed
made him a viable placement option for [the child] or that he would become so within a
reasonable amount of time from [the child’s] perspective.” Nichols, 2013 Ark. App. 504, at
9, ___ S.W.3d at ___.
Much the same can be said here. The circuit court found that Douglas had, for at least
the previous two hearings, been incarcerated and that he had failed to present evidence or
testimony “that he has done anything since his incarceration to support or otherwise maintain
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Cite as 2014 Ark. App. 225a presence in his children’s lives.”4 The court noted Douglas’s testimony that, if he were to
get the children back, his “main plan for the children . . . would be for them to go with their
mother or maternal grandmother.” The court further found that Douglas was “in no position
to care for these children, even if he were to be released from prison soon.” The circuit
court’s findings are supported by the evidence, and we affirm the decision to terminate
Douglas’s parental rights.
Because only one ground is necessary to support termination, see Albright v. Ark. Dep’t
of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007), it is unnecessary to address the
appellants’ arguments about the “other factors or issues” ground supporting termination.
Affirmed.
GLADWIN , C.J., and WALMSLEY , J., agree.
Val P. Price; and Shannon Holloway, for appellants.
Tabitha Baertels McNulty, DHS Office of Policy and Legal Services; and Chrestman
Group, PLLC, by: Keith Chrestman, for appellees.
4
Douglas acknowledged that he had missed the last court hearing due to his
incarceration. He claimed that he had been “clean” for quite a while, but he claimed that he
went into a “down spiral” shortly before the children were taken into DHS custody. On
cross-examination, Douglas conceded that he had missed the adjudication hearing because
he knew that he could not pass a urine test.
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