Dornan v. Ark. Dep't of Human Servs. , 2014 Ark. App. 355 ( 2014 )

Cite as 2014 Ark. App. 355
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-944
CASSIE LACKEY DORNAN Opinion Delivered June 4, 2014
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. JV2012-268-3]
ARKANSAS DEPARTMENT OF HONORABLE THOMAS SMITH,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
RITA W. GRUBER, Judge
Cassie Lackey Dornan brings this appeal from an order granting a petition of the
Arkansas Department of Human Services (ADHS or department) to terminate her parental
rights and those of Michael Lackey, her ex-husband, to their two children. The
juveniles—S.L., born on December 22, 2004, and M.L, born on December 10, 2005—had
not lived with appellant after she lost custody to Mr. Lackey in a 2009 domestic-relations case.
The present ADHS case began in 2012, when S.L. and M.L. were living with Mr. Lackey,
Wilma Boyd, and Ms. Boyd’s three minor children in Lowell, Arkansas, and appellant resided
with her husband and her stepdaughter in Oklahoma. The termination hearing against
appellant and Mr. Lackey, conducted on June 11, 2013, took place simultaneously with a
separate case to terminate Ms. Boyd’s parental rights to her children. The circuit court
entered its order terminating the parental rights of appellant and Mr. Lackey to S.L. and M.L.
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on July 26, 2013.1 An amended order was entered on August 13, 2013. Appellant timely
appealed those orders to this court. She raises one point on appeal, challenging the sufficiency
of the evidence to terminate her parental rights. We affirm.
Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2013) 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
adopted and the potential harm caused by returning custody of them to the parent. Next, the
order terminating parental rights must be based on a showing of clear and convincing
evidence as to one or more of nine grounds for termination listed in section 9-27-
341(b)(3)(B). In the present case, the order of termination was based on the following
statutory grounds:
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and
has continued to be out of the custody of the parent for twelve (12) months and,
despite a meaningful effort by the department to rehabilitate the parent and correct the
conditions that caused removal, those conditions have not been remedied by the
parent.
....
(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12)
months, and the parent has willfully failed to provide significant material support in
accordance with the parent’s means or to maintain meaningful contact with the
juvenile.
(b) To find willful failure to maintain meaningful contact, it must be shown that
the parent was not prevented from visiting or having contact with the juvenile by the
1
Mr. Lackey voluntarily relinquished his parental rights midway through the
termination hearing and did not revoke his consent within ten day; he is not a party to this
appeal.
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juvenile’s custodian or any other person, taking into consideration the distance of the
juvenile’s placement from the parent’s home.
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition
for dependency-neglect that demonstrate that placement of the juvenile in 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 the placement of the juvenile in the custody of the parent.
....
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile
division of circuit court, to:
....
(3)(A) Have subjected any juvenile to aggravated circumstances.
Ark. Code Ann. § 9-27-341(b)(3)(B). “Aggravated circumstances” includes a determination
that there is little likelihood that services to the family will result in successful reunification.
Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B).
The purpose of the code is to provide permanency in the child’s life where return to
the parents is contrary to the child’s health, safety, or welfare and it appears that return cannot
be accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.
Code Ann. § 9-27-341(a)(3) (Supp. 2013); Cotton v. Ark. Dep’t of Human Servs., 2012 Ark.
App. 455, 422 S.W.3d 130. “A parent’s resumption of contact . . . following the permanency
planning hearing and preceding the termination of parental rights hearing is an insufficient
reason to not terminate parental rights.” Ark. Code Ann. § 9-27-341(a)(4)(A) (Supp. 2013).
Appellant does not challenge the circuit court’s finding that termination was in the best
interest of the juveniles, including consideration of the likelihood that the juvenile will be
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adopted and of the potential harm that would be caused by returning the child to the parent’s
custody. She challenges only the sufficiency of the evidence to support the circuit court’s
finding of statutory grounds on which to terminate her parental rights.
Our review of termination-of-parental-rights cases is de novo. Dinkins v. Ark. Dep’t
of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination of parental
rights must be proved by clear and convincing evidence, which is such a degree of proof that
will produce in the fact-finder a firm conviction as to the allegation sought to be established.
Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526. When the burden of proving a
disputed fact is by clear and convincing evidence, our inquiry is whether the trial court’s
finding that the disputed fact was proved by clear and convincing evidence is clearly
erroneous. Id.
While appellant was married to Mr. Lackey, ADHS investigated an October 2005
incident in which bleach was spilled on M.L. The department made a true finding against
appellant for inadequate supervision and opened a protective-services case due to
environmental concerns of roach infestation, swarming flies, and general uncleanliness in the
home. In November 2005, a seventy-two-hour hold was executed on S.L. because of the
parents’ inadequate explanation that she fractured her arm while in her playpen and the
department’s concerns about the safety of the home; the family had relocated after October
to a home with sagging floors and roach infestation, and they were using electric heaters
instead of the gas heater because the gas had been shut off. ADHS assumed custody of S.L.
and provided services to the family. In September 2007, the court entered an order of
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dismissal and ordered ADHS to close its case. Custody was returned to appellant on the
court’s finding that she had complied with case-plan goals, that S.L. had done well since being
returned to appellant in December 2006, and that appellant had maintained stability for the
juvenile and herself.2 The court noted that Mr. Lackey was in jail at the time and would be
allowed to petition for visitation upon his release.
Appellant and Mr. Lackey divorced, and appellant remarried. A domestic-relations
order of 2009 reflects that she lost custody of S.L. and M.L. to Mr. Lackey on a finding that
she was in contempt of the court’s orders (apparently, contempt of visitation orders).
The procedural history of the present ADHS case began in April 2012. Mr. Lackey
and Ms. Boyd were arrested on five counts of endangering the welfare of a child, and ADHS
exercised a seventy-two-hour emergency hold on the Boyd and Lackey children because of
immediate danger to their health or physical well-being. The hold on S.L. and M.L. was due
to the absence of a legal caretaker, environmental neglect, and a pending no-contact order
between Mr. Lackey and the children. On April 16, 2012, the circuit court entered an ex
parte emergency order placing custody of S.L. and M.L. with ADHS.
At a probable-cause hearing on April 23, 2012, appellant appeared pro se and Mr.
Lackey appeared with his attorney. The circuit court made the following finding in its
written order:
Pursuant to a stipulation of the parties, the Court finds that there is probable cause that
2
Appellant reported to Dr. Martain Faitak, who performed a psychological evaluation
of appellant in 2006, that ADHS also had taken custody of M.L. after her birth. This is not
evident in the 2007 dismissal order.
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the emergency conditions which necessitated removal of the juveniles from the
custody of the father continue so that it is necessary that the juveniles continue in the
custody of [ADHS] and it is contrary to the welfare of the juveniles to be returned
home and it is in the best interests of the juveniles to remain in the custody of
[ADHS].
The court reserved a finding as to reasonable efforts until the adjudication hearing.
At the adjudication hearing in June 2012, appellant again appeared pro se and Mr.
Lackey appeared with his attorney. The court’s written order included its finding that ADHS
was previously involved with the family, most recently from February 2011 to July 2011,
from January 2012 to March 2012, and again beginning on April 12, 2012. The court found
that services provided to the family—including worker visits, head-lice kits, cleaning supplies,
and homemaker services—were reasonable but did not prevent removal, as shown by Mr.
Lackey’s arrest for endangering the welfare of a minor due to the environment of the home.
The court adjudicated S.L. and M.L. dependent-neglected, specifically finding that Mr.
Lackey stipulated to dependency-neglect for environmental neglect and inadequate
supervision. The court found that return “to the custody of the parents” was contrary to the
juveniles’ welfare and that continuation of custody in ADHS was in their best interest and
necessary to the protection of their health and safety. The goal of the case was set as
reunification with Mr. Lackey.
At the review hearing of September 2012, appellant again appeared pro se and Mr.
Lackey appeared with his attorney. The court found that ADHS had made reasonable efforts
to provide family services to achieve the goal of the case and that the case plan was moving
toward an appropriate permanency plan. ADHS was authorized to arrange appropriate
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visitation and was ordered to explore ICPC3 placement with relatives. A written order
following the December 2012 review hearing reflects that Mr. Lackey appeared with his
attorney; it does not note the presence or absence of appellant. The goal of the case was
“reunification with the parents.” The court noted that the case plan was moving toward an
appropriate permanency plan and that Mr. Lackey was complying with the case plan. ADHS
was again authorized to arrange appropriate visitation, and orders of the court that did not
conflict with the present order were to remain in effect. At the permanency-planning hearing
on March 5, 2013, appellant appeared pro se and Mr. Lackey appeared with his attorney. The
goal of the case was set as reunification with a concurrent goal of adoption, and the court
ordered that an attorney be appointed for appellant.
Petition to Terminate
ADHS filed its petition to terminate the parental rights of appellant and Mr. Lackey
on March 28, 2013. ADHS asserted that S.L. and M.L. were adoptable and that they faced
potential harm affecting their health and safety should they be returned to the custody of the
parents. The petition set forth two statutory grounds for termination:
That the juveniles have been adjudicated by the court to be dependent-
neglected and have continued to be out of the custody of the father for twelve (12)
months and, despite a meaningful effort by the Department to rehabilitate the father
and correct the conditions that caused removal, those conditions have not been
remedied by the father . . .
[and]
The parents have subjected the Juveniles to aggravated circumstances. Specifically,
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Interstate Compact on the Placement of Children
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(A) The Department initiated a 72 hour hold on [S.L. and M.L.], on
April 13, 2012, after the Lowell Police Department arrested Michael
Lackey, the father, and charged [him] with five counts of endangering
the welfare of a minor 2d degree. At the time of the hold, the
Department had concerns for the safety and well-being of the children
due to the uncleanliness of the home, the absence of a legal caretaker,
and . . .
(B) On June 12, 2012, the court adjudicated the juveniles dependent-
neglected. At the time, the father, Michael Lackey, stipulated to
dependency-neglect for environmental neglect and inadequate
supervision.
....
(E) Since 2005, the Department of Human Services has made several
true findings against the family and has provided services to the family
through court involved and protective service cases. Specifically,
(1) In October 2005, the Department made a true finding against
Cassie Lackey, the mother, for inadequate supervision. Clorox
bleach spilled on the juvenile, S.L., who was 10 months old at
the time. The Department opened a protective services case at
that time due to environmental concerns of the home. . . During
this protective service case, the Department provided
homemaker services and a referral for food stamps.
(2) In November 2005, the Department initiated a 72 hour hold
on the juvenile [S.L.] due to the juvenile sustaining a buckle
fracture to her arm and the parents not providing an adequate
explanation to how the injuries occurred. Also, the Department
had concerns about the safety of the home. . . . .
(G) Cassie Lackey, the mother, currently lives in [Wyandotte],
Oklahoma. She had the children removed from her custody in 2009
due to environmental reasons [sic]. During this case, the Department
found that Cassie Lackey’s home was not appropriate for placement of
the children.4 Furthermore, the mother has not had regular visits with the
4
This finding is not borne out by the evidence.
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children since they came in to care.
(H) At this time, the Department does not believe that Michael or
Cassie Lackey can provide a healthy, safe, and permanent home for the
juveniles. Both of the parents have a history with the Department and
the Department has concerns with the environment that the children
will reside in if custody is returned to either parent. The children . . .
have continued to improve academically since coming into care and
remain healthy. Their social skills have also improved since removal
from their parents in April 2012.
(Emphasis added.)
Hearing to Terminate Parental Rights
Witnesses at the termination hearing included Mr. Lackey; Regina Edster, the
counselor for S.L. and M.L.; Brandon Robinson, the family services caseworker and
investigator in the case; Lisa Harte, ADHS program assistant; appellant; and Carol Dearing,
appellant’s aunt. Mr. Lackey testified that he never denied visitation to appellant; that she saw
the children only twice in four years, except for a week before the case was opened when she
stayed with her aunt and saw them daily; and that appellant talked to the children only a
couple of times by phone.
Ms. Edster, counselor for the children, noted the three-year lack of contact between
appellant and the children and opined that the children were not bonded with appellant. She
said that the children could be at risk of developing reactive attachment disorder if they were
placed with appellant; that, should reunification be ordered, it would be in the children’s best
interest to reintroduce them slowly; and that an extended time period would be needed, such
as a year and a half even with “the girls moving in lockstep” and “if everything works for
them psychologically, and it’s all good.”
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Mr. Robinson, the caseworker, testified that S.L. and M.L. did not initially recognize
appellant as their mother when he supervised visitation beginning in May 2012, after he
received approval from Ms. Edster to allow it. He said that after three initial visits, appellant
“would show up at court and . . . ask for a visitation” at times that had not been arranged
because ADHS had not been notified and did not know that she would be there. He said that
he had directed appellant to contact the program assistant, who typically would call him to
say that a visit was being set up, but he never heard that appellant called the program assistant.
He said that appellant participated minimally until after the permanency-planning hearing,
when she began calling him two to three times daily to ask about the ICPC
evaluation—which had not come back at the time of the termination hearing although he had
referred it in January.
Mr. Robinson stated that ADHS was recommending termination of appellant’s
parental rights as to M.L. and S.L. for the following reasons:
That recommendation . . . comes from level of commitment, the bond that the girls
have. At this point in time, they haven’t seen their mother consistently for three,
almost four years. Therefore, we think we would see a lot of regression in the girls in
their development if they were to be placed with their mother. In any case, to work
them up to reunification with the mother it could take another year and a half.
S.L. and M.L. are adoptable. Someone has expressed an interest in adopting
S.L. and M.L. I do not see any reason at this time that those people that have
expressed an interest wouldn’t be able to adopt.
He acknowledged that his permanency-planning-hearing report did not mention appellant
or make any recommendation regarding her, and he said that his failure to include a
recommendation about her in his termination-hearing report was an honest mistake. He
acknowledged that the three initial visits and the ICPC referral were “about all the
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department has done to help or even look into this non-offending parent.”
Carol Dearing, appellant’s aunt, testified that appellant left S.L. and M.L. in her care
for three-and-a-half months when appellant was the custodial parent; that the only
conversation appellant and Dearing had during that time was when appellant phoned and told
her not to allow visitation with Mr. Lackey, who had visitation rights; and that appellant went
home to Oklahoma after leaving the children. Ms. Dearing also testified that appellant saw
the children once or twice after Mr. Lackey obtained custody, that he told Ms. Dearing that
appellant could see them, and that he never refused appellant a visit.
Appellant testified that Mr. Lackey would not let her see the children at all for more
than two years; she denied having anything to do with the incidents in which S.L.’s arm was
fractured and bleach was spilled on M.L., denied saying that S.L. broke her wrist in the
playpen, and claimed to know that Mr. Lackey had broken it. She testified that she left the
children with her aunt only for a day and a half. She presented evidence and documentation
that she had attended parenting classes on her own and that the Housing Authority of the
Peoria Tribe inspected her home and ranked her housekeeping in the top category, “good.”5
Appellant’s mother-in-law, Rebecca Dornan, testified that appellant kept the house
clean, got her stepdaughter ready for school each day, walked her to school, and volunteered
in classroom activities. Ms. Dornan and Mary Mossmayer, appellant’s sister-in-law, testified
that Mr. Robinson cancelled visitation on two occasions; the second time was just minutes
5
Appellant testified that she lived in Indian housing with rent “subsidized by the tribe
through my husband.”
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before the three women were to leave for the drive to Arkansas, and they made the trip
anyway to talk to someone about the case.
At the conclusion of the hearing, the circuit court asked ADHS to state its basis for
terminating appellant’s parental rights:
ADHS ATTORNEY: Because she has . . . demonstrated, subsequent to the initial hold,
that she is unwilling or unable to remedy the conditions that brought [the juveniles]
into care. Your Honor, she didn’t have custody, but she hadn’t seen them. She
doesn’t have any bond.
THE COURT: Under the case plan, what was she supposed to remedy?
ADHS ATTORNEY: Well, under the case plan, she was at least supposed to be
involved. I don’t know if that is listed in the case plan, per se. I don’t know that we
set up any services for her, but she did not request any. She wasn’t requesting any sort
of visitation.
THE COURT: So, the theory I’m hearing then is either (1) she didn’t know what she
was supposed to do; or (2) you didn’t think she had to do anything. Or, you knew,
but didn’t think we needed it to be put in the case plan. That’s my concern here.
ADHS ATTORNEY: No, Your Honor, she knew she had to—if she was a mother, if
she was invested in these children, she would’ve stepped forward and said, “I want
visitations.” And would’ve been there consistently. Because if she was a mother
saying, I want to be involved, I want to be involved, I want to be involved, that would
be one thing. But it’s not. This is a mother that is just sitting there and saying, well,
you know, it’s not really that big a deal.
Appellant’s attorney responded that ADHS “did not tell her anything to do,” hardly
acknowledged her, and made no reports on her; that because she was the non-offending
parent, appellant was not mentioned to any effect in any orders until the permanency-
planning order required that an attorney be appointed for her; and that it was ADHS that had
fallen down on the job. The attorney ad litem responded that regardless of who was at fault
for the lack of visitation, contact had been minimal; the children, then eight and seven years
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old, did not know appellant; and—according to their counselor—there was no bond and
reunification would take a year-and-a-half to be therapeutically safe. The attorney ad litem
concluded that the children’s emotional health demanded that appellant’s parental rights be
terminated.
The court orally ruled that, although appellant was not treated properly in the way the
case came about, the children had not been in her care for half of their lives. It found
appellant’s testimony not to be credible about anyone keeping her from seeing S.L. and M.L.
and about not leaving them with her aunt for three-and-a-half months. The court found that
the children needed permanency, that the damage from years before the case began could not
be repaired within a reasonable amount of time, and that the case would be “totally different”
had appellant seen her children for three years before the case started, which was of concern
to the court.
Written Order Terminating Parental Rights
In its amended written order terminating the parental rights of appellant and Mr.
Lackey, the circuit court found termination in the best interest of the juveniles, including
consideration of the risk of potential harm that would be caused by returning custody to either
or both parents. Regarding appellant, the court found that the children had not been in her
care for the majority of their lives; appellant lost custody in 2005, regained it, lost it again in
2009, and had only very limited contact since; her testimony was “not credible regarding her
statements that [contrary testimonies] regarding her willful lack of contact with the children
and past incidents of improper care and neglect are a lie”; and if the children were to be
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returned to appellant’s care, the transition “would require at least a year, a substantial period
of time in the lives of the juveniles.”
The order then found by clear and convincing evidence the existence of four statutory
grounds for termination. The first statutory ground was section 9-27-341(b)(3)(B)(i)(a), that
the juvenile has been adjudicated by the court to be dependent-neglected and has continued
to be out of the custody of the parent for twelve months and, despite a meaningful effort by
the department to rehabilitate the parent and correct the conditions that caused removal, those
conditions have not been remedied by the parent. With respect to appellant, the court found
that the children had been out of her custody since 2009; she was currently living in
Oklahoma and had not “maintained contact with the department or her children throughout
this case”; and her overtures in the final months of the case to establish visitation were
insufficient to prevent termination, considering her lack of action during the case and lack of
contact with the children from 2009 until initiation of the case.
The second statutory ground that the circuit court found was section 9-27-
341(b)(3)(B)(ii)(a)–(b): the juvenile has lived outside the home of the parent for a period of
twelve months, and the parent has willfully failed to provide significant material support in
accordance with the parent’s means or to maintain meaningful contact with the juvenile. The
circuit court found that appellant had not maintained meaningful contact with her children
during the case; she did not consistently request visitation subsequent to visitations within the
first months of the case; her overtures in the final months of the case to establish visitation
were insufficient to prevent termination; incredibly, she attributed her failure to maintain
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meaningful contact to intervention by Mr. Lackey; and her failure to maintain meaningful
contact was willful, and she was not prevented from having contact after losing custody in
2009.
The third ground was section 9-27-341(b)(3)(B)(vii)(a): other factors or issues arose
subsequent to the filing of the original petition for dependency-neglect demonstrating that
placement of the juvenile in 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 the placement of the juvenile in the
custody of the parent. Regarding appellant, the court found that she had not maintained
consistent contact with the department or her children throughout the case.
The fourth and final ground for termination was section 9-27-
341(b)(3)(B)(ix)(a)(3)(A)(B)(i), the existence of aggravated circumstances, specifically, that
there was little likelihood that services to the family would result in successful reunification.
The court found that transitioning the children to a life with appellant would delay
permanency for the juveniles for an unreasonable time, and that the long transition directly
resulted from her willful failure to maintain meaningful contact since 2009 and failure to
consistently participate in proceedings of the case.
Argument on Appeal
Appellant asserts that three of the four statutory grounds on which the circuit court
terminated her parental rights were not properly alleged against her in the petition to
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terminate: specifically, the failure-to-remedy-conditions ground was alleged only against Mr.
Lackey,6 and there were no allegations at all of failure-to-maintain-meaningful-contact and
other-factors grounds. She argues that the only remaining statutory ground, aggravated
circumstances, did not specify which of numerous bases in the petition applied to her. She
concedes that she did not have regular contact with S.L. and M.L. after the 2009 change-of-
custody order but argues that this is an improper basis for a finding of aggravated
circumstances. She concludes that the finding of aggravated circumstances was not supported
by clear and convincing evidence.
Due process demands that a parent be notified of the grounds that may constitute a
basis for termination; at a minimum, it requires notice reasonably calculated to afford a natural
parent the opportunity to be heard prior to termination of his or her parental rights. Jones v.
Ark. Dep’t of Human Servs., 2011 Ark. App. 632; see Jackson v. Ark. Dep’t of Human Servs.,
2013 Ark. App. 411, --- S.W.3d ---- (reversing because Jackson was not placed on notice that
he must defend on a particular ground on which termination was based: the department never
specifically argued that the trial court should rely on the ground, the trial court took the
matter under advisement without ruling from the bench, and the first specific mention of this
ground was in the trial court’s order terminating parental rights) (citing Kight v. Ark. Dep’t of
Human Servs., 94 Ark. App. 400, 409, 231 S.W.3d 103, 109 (2006)). Here, we agree that the
6
Appellant argues that termination could not properly be based on a 2005 case against
her that had been closed. She points out that the juveniles were not removed from her
custody in this matter but were removed from Mr. Lackey and Ms. Boyd because of neglect
and hazardous environmental conditions of their home.
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first three statutory grounds found by the circuit court cannot sustain the termination of
appellant’s parental rights because she was not placed on notice that she must defend against
them.
ADHS alleged in its petition the ground of aggravated circumstances as the fourth basis
of termination. Appellant now argues, echoing her previous due-process arguments, that she
was required to guess what evidence would be produced at the hearing based on the mere
citation to the many-faceted statute. We do not agree. The petition specifically alleged as
proof of this ground that appellant had not had regular visits with the children since they came
into care. Moreover, appellant did not object at the hearing to testimony on her lack of
visitation. See Anthony v. Ark. Dep’t of Human Servs., 2013 Ark. App. 556 (permitting the
introduction of proof on an issue, even if not raised in the pleadings, constitutes an implied
consent to trial on that issue). Finally, appellant put on her own evidence regarding her
efforts to visit—albeit evidence that the circuit court found incredible.
The circuit court found by clear and convincing evidence the existence of aggravated
circumstances. Specifically, the court found little likelihood that services to the family would
result in successful reunification. With regard to appellant, the court found transitioning the
children to a life with her would delay permanency for the juveniles for an unreasonable time,
and that the long transition directly resulted from her willful failure to maintain meaningful
contact since 2009 and failure to consistently participate in proceedings of the case. These
findings turned on the court’s evaluation of the evidence and credibility of the testimony,
exemplified by his oral explanation that he found appellant’s testimony not credible that other
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persons prevented her from seeing S.L. and M.L. and that she did not leave them with her
aunt for three-and-a-half months; that damage from years before the case began could not be
repaired within a reasonable amount of time; and that the case would be different had
appellant been seeing her children in the three years before the case started.
We find no clear error, and we affirm the termination of appellant’s parental rights
based on the statutory ground of aggravated circumstances.
Affirmed.
WHITEAKER, J., agrees.
GLOVER, J., concurs.
DAVID M. GLOVER, Judge, concurring. Clearly, I agree with the majority that there
is sufficient evidence to support the circuit court’s termination of Cassie Dornan’s parental rights.
I write separately to express my disdain for the manner in which ADHS handled Dornan’s case
throughout the process.
The girls were removed from Lackey’s care, the offending parent, due to the conditions
in which they were living. Reunification with Lackey was, and continued to be, the goal, and
ADHS provided services to him. Meanwhile, Dornan, the non-offending parent, was essentially
ignored by ADHS, even though she attended almost all of the hearings, albeit unrepresented
until the end of this case. Specifically, the caseworker’s testimony at the termination hearing was
that three visitations and an ICPC referral—the status of which was unknown at the time of the
termination hearing—were “about all” that had been provided to Dornan. Since Dornan lived
in Oklahoma, ADHS could not provide some services; however, there was no documented
effort that any meaningful attempt was even made to coordinate services for Dornan with
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Oklahoma’s Department of Human Services. Dornan’s own testimony at the termination
hearing was that the caseworker had cancelled her visitation with the children on two occasions,
and then he would not answer Dornan’s phone calls. Dornan further testified that although she
had asked for an ICPC referral, no one had visited her home.
This case began in April 2012. A petition to terminate both Lackey’s and Dornan’s
parental rights was filed by ADHS in March 2013. In the petition to terminate, two grounds
were alleged—(1) that the children were adjudicated dependent-neglected and had continued
out of Lackey’s home for twelve months and, despite a meaningful effort by DHS to rehabilitate
Lackey and correct the conditions that caused removal, those conditions had not been remedied
by Lackey, and (2) that the parents had subjected the children to aggravated circumstances.
Under both of these allegations, the only stated information as to Dornan was she currently lived
in Oklahoma, the children were removed from her custody in 2009 due to environmental
reasons, ADHS had determined in the present case that her home was not an appropriate
placement for the children, and Dornan had not had regular visits with the children since they
came into care. Against a CASA report stating that the children were removed from Dornan’s
custody in 2009 due to environmental reasons, both Dornan and Lackey testified custody was
removed from Dornan and placed with Lackey in 2009 after Lackey filed contempt proceedings
in a domestic-relations case against Dornan for refusing to allow him to see his daughters. No
evidence was offered that Dornan’s home had been deemed by ADHS to be an inappropriate
placement for the girls (especially in light of the fact that Dornan testified that no one had even
visited her house or looked at the pictures of her home that she had brought to court early in
the proceedings).
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ADHS cites the fact of Dornan not having regular visits with the children since they
came into care as a reason to terminate her parental rights. Here are the facts: ADHS takes
Dornan’s children into its custody; Dornan lives in another state but manages to appear at almost
all of the hearings related to this matter; ADHS provides virtually no services, including
visitation, for Dornan; and, for all intents and purposes, ADHS completely ignores that Dornan
even exists as the biological mother of these children.
The colloquy between the circuit court and the attorney for ADHS set forth in the
majority’s opinion is particularly telling—when asked the basis for terminating Dornan’s parental
rights, the attorney for ADHS initially stated that Dornan had been unwilling or unable to
remedy the conditions that brought her daughters into care, but then backtracked and stated that
Dornan did not have custody, had not seen the children, and there was no bond there. When
further questioned by the circuit court as to what exactly Dornan was supposed to remedy under
the case plan, the ADHS attorney replied that “she was at least supposed to be involved,” then
admitted that he did not know if that was in the case plan. The ADHS attorney also admitted
that he did not know if ADHS set up any services for Dornan, but “she did not request any” and
she had not requested any visitation. He claimed that if Dornan “was a mother” who was
“invested” in her children, then she would have been saying that she wanted to be involved,
instead of “just sitting there” as if it were “no big deal.”
I find ADHS’s attitude shown by the record in this matter to be arrogant and repugnant.
Dornan and her current husband are both on disability and receive a total of a little over $1000
each month on which to live and are living in eastern Oklahoma. While I agree that Dornan
had some responsibility to be active in this case, I do find that she put forth the effort to be
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present at almost all of the hearings in this case, traveling from Oklahoma to Benton County
without any help from ADHS; yet she was never considered by ADHS to be any part of the
case, much less an important part of the case. Just as effort from Dornan was necessary, effort
on the part of ADHS was also necessary; however, ADHS “efforts” were all but nonexistent.
How is Dornan supposed to know what to do, how to act, or what to ask for if ADHS never
made her an integral part of the case? Surely, it is not ADHS’s position now that ADHS is not
required to provide services to a parent unless the parent requests services. How are parents
supposed to know the services available to them and how to facilitate the provision of these
services? Under the law, this is not the parents’ burden. ADHS simply may not abdicate its
responsibility (for providing services to both offending and non-offending parents that would
possibly allow for the reunification of the children with either one or both of the biological
parents) just because the parents fail to request services. Any services provided by ADHS to
Dornan might not have been enough to overcome the significant period of time that she had
not been in her children’s lives prior to the children being taken into ADHS custody; however,
applying the “best interests” standard, as both the trial court and this court must do, as a result
of ADHS’s shortcomings with regard to its failure to provide services to Dornan, we will never
know the answer to this question.
For my last point, the circuit court found four statutory grounds for terminating parental
rights, although only two grounds had been pled in the petition to terminate parental rights.
One of the grounds found by the trial court that was not pled in the termination petition was
that the children had lived outside the home of the parent for a period of twelve months and
the parent had willfully failed to provide significant material support in accordance with the
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parent’s means or to maintain meaningful contact with the children. Ark. Code Ann. § 9-27-
341(b)(3)(B)(ii)(a)–(b) (Repl. 2009). If Dornan’s lack of visitation with the children, both prior
to the case being opened and during the pendency of the case, was of such utmost importance
to ADHS, then why was this specific ground not pled by ADHS in its petition for termination
of parental rights, thereby providing Dornan notice that her lack of meaningful contact with her
children was a basis for terminating her parental rights?
In fairness, I realize that ADHS and its resources are stretched thinly. Even so, that is no
excuse to allow parents to be marginalized and placed on the back burner in a case just because
he or she is a non-offending parent, the parent lives out of state, or services are more difficult
to provide. Although ADHS does an outstanding job in most cases, that simply was not done
here. Many of the issues developed in this case, and substantial additional deliberation by this
panel, could have been avoided if ADHS had just properly done its job, provided services to
Dornan, and had specifically included her failure to visit as a ground for termination.
Deborah R. Sallings, Arkansas Public Defender Commission, for appellant.
Tabitha B. McNulty, County Legal Operations; and Chrestman Group, PLLC, by: Keith
Chrestman, for appellees.
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