Anthony v. Ark. Dep't of Human Servs. , 2013 Ark. App. 556 ( 2013 )

Susan Cite as 2013 Ark. App. 556
Williams
2019.01.
03 ARKANSAS COURT OF APPEALS
13:34:47 DIVISION IV
No. CV-13-354
-06'00'
Opinion Delivered October 2, 2013
TASSIE ANTHONY APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
APPELLANT WESTERN DISTRICT
[NO. JV-2012-61]
V.
HONORABLE BARBARA HALSEY,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILDREN
APPELLEES AFFIRMED
RHONDA K. WOOD, Judge
The circuit court terminated Tassie Anthony’s parental rights to her two children.
She appeals and argues that the Department of Human Services (DHS) failed to prove a
statutory ground for termination. We disagree and affirm.
I. Facts
T.W.1 was born weighing 4 lbs. and 11 oz. on February 13, 2012. She spent nine
days in the hospital on oxygen and IV antibiotics. Due to her medical condition, the
hospital required her mother, Tassie Anthony, to take a CPR course before releasing the
child to her. Anthony refused to take the class and also tested positive for drugs, so DHS
took a hold on T.W.1 on February 27, 2012. Anthony again tested positive for drugs at
the probable-cause hearing, and the court found probable cause as to T.W.1 and placed a
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72-hour hold on Anthony’s other child, T.W.2.1 Both children were adjudicated
dependent-neglected in April 2012. The court found that Anthony had abandoned T.W.1
and was unfit to parent because of drug use. Notably, neither Anthony nor T.W.2 was
present at the adjudication hearing.
DHS filed a petition to terminate Anthony’s parental rights to both children in
June 2012. It alleged that Anthony had abandoned T.W.1 and absconded with T.W.2,
whom DHS had still been unable to locate and bring into custody. Anthony had yet to
appear since the first probable-cause hearing or have any significant contact with DHS.
Anthony eventually relinquished T.W.2 to DHS’s custody in August 2012. A termination
hearing began then, but the case was continued, and the court terminated Anthony’s
parental rights to both children after a January 2013 hearing.
Testimony at the hearing showed that since Anthony had reappeared in August,
she had exercised visitation with her children inconsistently, missing at least five scheduled
visits. Further, Anthony had been arrested three times; had not had a job since October
2012; and was currently living with her mother. Both Anthony and her mother had
recently been arrested for drug possession.
Terri Blanchard, foster-care supervisor, testified that DHS had provided Anthony
with parenting classes, but that referrals to psychological and drug assessments were
discussed but never made. According to Blanchard, those services were delayed because
Anthony failed to provide contact information and had been in and out of jail. Anthony
1
A probable-cause hearing was subsequently held as to T.W.2, and the mother
failed to appear.
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admitted that she had absconded with T.W.2, failed to comply with court orders, and had
spent over a month in jail. She also admitted to having a drug problem, but had just
started (in January 2013) rehab.
The juvenile court terminated Anthony’s rights to both of her children, finding by
clear and convincing evidence that termination was in the children’s best interest. Further,
the court found that the following statutory grounds had been proved by clear and
convincing evidence:
 That Anthony had abandoned T.W.1,2 and
 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.3
Anthony appeals the termination order, arguing that the court’s finding on the statutory
grounds was clearly erroneous. We disagree.
II. Standard of Review and Applicable Law
This court reviews termination-of-parental-rights cases 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. M.T. v. Ark. Dep’t of
Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). When the burden of proving a
disputed fact is by “clear and convincing evidence,” the question on appeal is whether the
2
Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) (Supp. 2011).
3
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) (Supp. 2011).
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circuit court’s finding that the disputed fact was proved by clear and convincing evidence
is clearly erroneous, giving due regard to the opportunity of the trial court to judge the
credibility of the witnesses. Id. Termination of parental rights is an extreme remedy and in
derogation of the natural rights of parents, but parental rights will not be enforced to the
detriment or destruction of the health and well being of the child. M.T., supra.
The termination of parental rights is a two-step process that requires the circuit
court to find that the parent is unfit and that termination is in the best interest of the child.
L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489. The first step
requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. §
9-27-341(b)(3)(B) (Supp. 2011). The second step requires consideration of whether the
termination of parental rights is in the juvenile’s best interest. Ark. Code Ann. § 9-27-
341(b)(3)(A) (Supp. 2011). Anthony does not challenge the court’s best-interest finding,
so we only address whether a statutory ground for termination exists by clear and
convincing evidence. See Hoffman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 856, 380
S.W.3d 454.
III. Discussion
The circuit court’s finding that DHS proved the “other factors” ground by clear
and convincing evidence was not clearly erroneous. Because only one ground is needed to
terminate, we do not address abandonment, the other alleged statutory ground. See
Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007).
First, Anthony concealed T.W.2 from DHS and law enforcement following the
first probable-cause hearing in March 2012 and did not turn him over to DHS until
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August 2012. Second, the evidence showed that returning the children to Anthony is
contrary to their health, safety, and welfare. Anthony did not have a job or a stable
residence. When the hearing took place, she lived with her mother, and both of them
were drug users and recent arrestees. A court could not return the children to Anthony’s
custody under these circumstances because she could not provide for their basic needs,
used drugs, and had demonstrated an inability to stay out of jail.
Third, Anthony had made only marginal attempts at improving her situation since
she reinstituted contact with DHS in August 2012. Since that time, she had been to jail
multiple times and had exercised sporadic visitation. She admitted to still having a drug
problem but had not made significant progress at rehabilitation. This is important because
the children came into custody in the first place because Anthony had tested positive for
drugs. Yet, almost a year later, Anthony had just begun rehabilitation. Further, Anthony
did not take advantage of any of the services DHS offered because she was either absent,
in jail, or had failed to provide her address. In fact, the only services Anthony took
advantage of were parenting classes, watching “The Clock is Ticking” video, and
attending staffings. Anthony argues that she “immersed herself in the case after the August
. . . hearing.” But she admitted that she was in jail from November 14 to December 14
and that she had missed multiple visitations. Essentially, Anthony only communicated with
DHS one-half of the time the case was open and was in jail one-fourth of that time. There
is no merit to Anthony’s contention that she made significant efforts to remedy her
situation.
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Finally, Anthony has raised the issue that the petition to terminate was stale and
that she lacked notice of the issues she had to defend against at the termination hearing.
While it’s true that DHS filed the petition to terminate in June 2012 and most of the
issues discussed above occurred after August 2012, Anthony never objected at the hearing
that she lacked notice of the charges against her. “Permitting the introduction of proof on
an issue not raised in the pleadings constitutes an implied consent to trial on that issue.”
Hope v. Hope, 333 Ark. 324, 330, 969 S.W.2d 633, 636 (1998). Additionally, failure to
raise an issue below precludes appellate review. Lamontagne v. Ark. Dep’t of Human Servs.,
2010 Ark. 190, 366 S.W.3d 351.
Affirmed.
GRUBER and HIXSON, JJ., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
Tabitha Baertels McNulty, DHS—Office of Policy and Legal Services, and Chrestman
Group, PLLC, by: Keith Chrestman, for appellees.
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