Smith v. Ark. Dep't of Human Servs. , 523 S.W.3d 920 ( 2017 )

Cite as 2017 Ark. App. 368
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-74
BRITNEY SMITH OPINION DELIVERED: JUNE 7, 2017
APPELLANT
APPEAL FROM THE MADISON
COUNTY CIRCUIT COURT
V. [NO. 44JV-15-43-3]
HONORABLE JOHN C. THREET,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILD
APPELLEES AFFIRMED
ROBERT J. GLADWIN, Judge
Appellant Britney Smith appeals the October 19, 2016 order of the Madison County
Circuit Court terminating her parental rights to her minor child, A.S. She argues that the
circuit court erred in granting the termination-of-parental-rights (TPR) petition because
appellee Arkansas Department of Human Services (ADHS) failed to present sufficient
evidence that TPR was in the child’s best interest, specifically challenging the potential-
harm element of the best-interest analysis. We affirm.
I. Facts
On August 17, 2015, ADHS went to the home of appellant and her husband,
Fletcher Smith, 1 to investigate allegations of drug use, environmental neglect, and striking
a child with a closed fist. When arriving at the home, ADHS encountered the parents and
1
Smith did not appeal and is not a party to this action.
Cite as 2017 Ark. App. 368
A.S. The ADHS worker observed that A.S. did not have any bruises but that the home was
dirty. The parents were also unable to produce samples for the ADHS worker to perform
drug tests. While the ADHS worker was at the home, the maternal grandmother and great-
grandmother arrived and removed A.S. from the home over the objection of the ADHS
worker. The ADHS worker, with the assistance of the police, was able to retrieve A.S.
ADHS exercised a seventy-two-hour hold on A.S. based on the family’s prior history with
ADHS, the family’s refusal to comply with the investigation, and the family members’
absconding with A.S.
On August 20, 2015, ADHS filed a petition for emergency custody and dependency-
neglect, alleging detailed concerns of drug use, environmental neglect, and that A.S. had
been hit with a closed fist. Also on August 20, 2015, the circuit court entered an ex parte
order for emergency custody granting ADHS custody of A.S. A probable-cause hearing was
held on August 25, 2015, after which the circuit court entered an order finding that probable
cause existed, based on (1) the home being unsafe, (2) the parents refusing drug screens, (3)
a family member fleeing with A.S., and (4) the extensive history between ADHS and the
family, such that continued custody of A.S. should remain with ADHS. The circuit court
entered a supervised visitation schedule and ordered certain services. Specifically, appellant
was ordered to cooperate with ADHS; call the caseworker once a week; attend the case-
plan staffing; keep ADHS informed of her contact information; refrain from using illegal
drugs; submit to random weekly drug screens; maintain stable, clean, and safe housing;
maintain stable, adequate employment; demonstrate an ability to keep the juvenile safe;
submit to a hair-follicle drug screen; and follow the case plan and court orders.
2
Cite as 2017 Ark. App. 368
A court report was submitted on September 18, 2015, that detailed that A.S. was
healthy and “on track for his age.” Following the adjudication hearing held on September
21, 2015, the circuit court entered an order adjudicating A.S. dependent-neglected based
on the finding that A.S. was at a risk of harm due to neglect and parental unfitness and
finding that the previous allegations in the petition were true and correct—the poor
environmental conditions of the home, the failure of the parents to submit to a drug screen
during the investigation, and the great-grandmother running off with A.S. The circuit court
noted that since A.S. had been removed, appellant had failed a drug screen for
methamphetamine and amphetamine and that they had moved and reportedly were staying
with friends in Fayetteville. Appellant had attended only two of four scheduled visits and
had not submitted to weekly drug screens. The goal of the case was set for reunification,
and A.S. was placed in the home of relatives at the time of the hearing. The circuit court
continued its prior orders, adding that appellant was to participate in individual counseling
and complete twenty hours of parenting classes.
The circuit court found that appellant had complied with the prior orders from the
probable-cause hearing in that she was working, that she had attended the case-plan staffing,
and that she had scheduled an appointment with Ozark Guidance Center so that she could
resume her mental-health medications. ADHS had made referrals for individual counseling
and hair-follicle exams but had not yet received approval for those services. The circuit
court allowed visitation for the extended family.
A Court Appointed Special Advocate (CASA) report was submitted on January 14,
2016, that indicated that A.S. “enjoys the visits with his mother, smiles when he sees her
3
Cite as 2017 Ark. App. 368
and becomes fussy if she leaves the room.” CASA detailed that appellant’s family had helped
her obtain an apartment that was clean and furnished. A.S. had remained with appellant’s
relatives, even though the placement was planned to be only temporary. Appellant’s family
was committed to help support her in a manner that was best for appellant and A.S. ADHS
submitted a court report on January 20, 2016, that recommended continued foster care,
work with the family, and a review.
On January 25, 2016, a review hearing was held. The circuit court found that the
parents had not made sufficient progress to have A.S. returned to their custody. Appellant
had not complied with all court orders or case-planned services. Although she was employed
and was participating in therapy at Ozark Guidance Center, the circuit court found that her
progress had been only minimal. The prior orders continued in the review order filed on
the same date.
Another CASA report was filed on May 4, 2016, and ADHS filed a court report on
May 11, 2016, and a case plan on May 12, 2016. The permanency-planning hearing was
held on May 16, 2016, at which time the circuit court changed the goal of the case to
adoption. The circuit court found that appellant had not complied with most of the court
orders and case-planned services and had made only minimal progress. Approximately three
months prior to this hearing, A.S. had been moved from the provisional foster home of
relatives and placed in a foster home with nonrelatives.
On May 21, 2016, ADHS filed a TPR petition. In the petition, ADHS pled as
grounds that TPR was warranted pursuant to Arkansas Code Annotated section 9-27-
4
Cite as 2017 Ark. App. 368
41(b)(3)(B)(i)(a) (Repl. 2015), the failure-to-remedy ground, and the subsequent-factors
ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). 2
A hearing was held on the TPR petition on September 19, 2016. Denise Gibson,
the ADHS county supervisor, was the first witness to testify. The caseworker was Toni
Johnson, but Gibson prepared for the hearing by reviewing the file. Gibson testified that
A.S. is adoptable and that his current foster family is interested in adopting him. Gibson
explained that she did not feel that A.S. could safely return to appellant because appellant
remained in an inpatient facility for alcohol and drug treatment. Gibson also testified that
appellant did not demonstrate sufficient stability with her employment or housing just prior
to entering inpatient treatment.
Gibson explained that appellant visited with A.S. and that her visits went well.
Gibson also stated that A.S. knows that appellant is his mother and is connected to her. She
acknowledged that appellant had maintained weekly contact with ADHS through the
program assistant. Gibson noted that appellant had some positive drug screens during the
case. Gibson also acknowledged that ADHS had not made any contact with appellant’s
treatment program to ascertain her progress.
The foster mother also testified. She agreed that A.S. knows that appellant is his
mother and that A.S. would grieve a loss of the relationship with appellant.
2
ADHS also pled the failure-to-maintain-meaningful-contact ground under section
9-27-341(b)(3)(B)(ii)(a), but that was pled regarding the father and not appellant. As such,
that ground did not apply to appellant. See Dornan v. Ark. Dep’t of Human Servs., 2014 Ark.
App. 355 (finding Dornan did not have notice that she would have to defend against grounds
pled against the father and that those grounds could not be used to terminate her rights).
5
Cite as 2017 Ark. App. 368
Appellant confirmed during her testimony that she was enrolled in treatment at
Decision Point and was in week five of a four- to-six-week program. If the goal was
returned to reunification, Decision Point would assist appellant in reunifying with A.S.
Appellant explained that her plan on release from her treatment program was to either go
to Sober Living or live with her mother or grandmother, who were both permitted by the
circuit court to have visits with A.S. during the case. Sober Living is a program that provides
transitional housing that would assist appellant in transitioning back into the community and
help her find employment. That program would permit A.S. to be placed with appellant
while she was a participant in the program. At the time of the hearing, appellant had attained
thirteen weeks and four days of sobriety.
Appellant also testified that she was participating in counseling. This participation
began before her admission into Decision Point, and she had attended several sessions.
Additionally, appellant noted that she had separated from her husband and had spoken with
legal aid regarding assistance in obtaining a divorce. She had completed the required twenty-
five hours of parenting classes. While appellant acknowledged that she did not have a job at
the time of the TPR hearing, she stated that she previously did not have difficulty
maintaining employment, having held a prior job for two years.
Appellant testified that she and A.S. are bonded, and she described how when A.S.
sees her, he runs, jumps into her arms, and gives her a big hug and a kiss. She acknowledged
that she had “messed up a lot” since A.S. had entered foster care but stated that she was
genuinely trying. Appellant claimed to have made progress in her counseling to help her
realize that A.S.’s father was an impediment to reunification. Prior to this realization,
6
Cite as 2017 Ark. App. 368
appellant believed she should simultaneously work on her issues and her relationship with
her husband so that A.S. could have an intact family if he returned. She acknowledged
benefiting from counseling services and realized that leaving her husband was what she
needed so that she could focus solely on A.S. Appellant pointed out that after leaving her
husband, she attained her sobriety. She asserted her belief that if she were given additional
time and the goal changed back to reunification, she could have A.S. returned to her custody
at the Sober Living program within one to two weeks.
At the conclusion of the TPR hearing, appellant argued that she should be given
additional time to demonstrate that her progress was sustainable and to take advantage of
the programs offered through the drug-treatment facility that focuses on reunifying addicts
with their children. Appellant pointed out that her progress was not all “eleventh hour
progress,” as indicated in the prior orders as evidence that she was always participating and
making some progress even if it was only minimal.
Ultimately, the circuit court granted ADHS’s TPR petition and terminated
appellant’s parental rights pursuant to the order filed on October 19, 2016. Appellant filed
a timely notice of appeal on November 16, 2016.
II. Standard of Review and Applicable Law
Our court recently reiterated the standard of review in TPR cases as follows:
Termination of parental rights is an extreme remedy and in derogation of a
parent’s natural rights; however, parental rights will not be enforced to the detriment
or destruction of the health and well-being of the child. In order to terminate parental
rights, a circuit court must find by clear and convincing evidence that termination is
in the best interest of the juvenile. Additionally, the circuit court must also find by
clear and convincing evidence that one or more statutory grounds for termination
exists.
7
Cite as 2017 Ark. App. 368
Termination-of-parental-rights cases are reviewed de novo. Grounds for
termination of parental rights must be proved by clear and convincing evidence,
which is that degree of proof that will produce in the finder of fact a firm conviction
of the allegation sought to be established. The appellate inquiry is whether the circuit
court’s finding that the disputed fact was proved by clear and convincing evidence is
clearly erroneous. 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. In resolving the clearly erroneous question,
we give due regard to the opportunity of the circuit court to judge the credibility of
witnesses.
Jones v. Ark. Dep’t of Human Servs., 2017 Ark. App. 125, at 6, __ S.W.3d __, __ (internal
citations omitted).
TPR requires clear and convincing evidence that two elements exist. Ark. Code
Ann. § 9-27-341(b)(3). First, TPR must be in the child’s best interest. Id. Second, at least
one of nine statutory grounds must exist. Id. Here the circuit court found that these
conditions existed, and we hold that a review of the record does not leave a definite and
firm conviction that these findings were a mistake.
The juvenile code requires that a best-interest finding be based on a consideration of
at least two factors: (1) the likelihood that, if parental rights are terminated, the children
will be adopted; and (2) the potential harm caused by “continuing contact with the parent,
parents, or putative parent or parents.” Ark. Code Ann. § 9-27-341(b)(3)(A). But it is the
overall evidence—not proof of each factor—that must demonstrate that TPR is in the
child’s best interest. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d
143 (2005).
Under the juvenile code, TPR requires that the circuit court consider the likelihood
of adoption. Ark. Code Ann. § 9-27-341(b)(3)(A)(i). This factor, however, does not require
that adoptability be proved by clear and convincing evidence. Duckery v. Ark. Dep’t of
8
Cite as 2017 Ark. App. 368
Human Servs., 2016 Ark. App. 358. There instead must be evidence that addresses the
likelihood of adoption. Thompson v. Ark. Dep’t of Human Servs., 2012 Ark. App. 124.
The juvenile code also requires that, to terminate parental rights, the circuit court
must consider potential harm. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). This factor,
however, does not require that a specific potential harm be proved by clear and convincing
evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. The
potential-harm evidence, moreover, must be viewed in a forward-looking manner and
considered in broad terms. Samuels v. Ark. Dep’t of Human Servs., 2014 Ark. App. 527, 443
S.W.3d 599.
Although the juvenile code provides nine different grounds that warrant TPR, see
Ark. Code Ann. § 9-27-341(b)(3)(B), in order to terminate parental rights, only one ground
is needed. Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007).
And on de novo review, the court can affirm the circuit court’s TPR decision on any
ground that was alleged in the petition and proved. Fenstermacher v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 88, 426 S.W.3d 483.
III. Discussion
Appellant does not challenge the statutory grounds for TPR relied on by the circuit
court. She instead claims that, even if the circuit court correctly determined that statutory
grounds for TPR existed under section 9-27-341(b)(3)(B), her rights cannot be terminated
when there is not clear and convincing evidence that TPR was in A.S.’s best interest. See
9
Cite as 2017 Ark. App. 368
Ark. Code Ann. § 9-27-341(b)(3)(A); Lively v. Ark. Dep’t of Human Servs., 2015 Ark. App.
131, 456 S.W.3d 383. 3
Appellant argues that her progress was sufficient to prove that she did not pose
potential danger to A.S. to the extent that would warrant TPR. Appellant maintains that
the major impediment to her reunification with A.S. was her drug addiction and relationship
with her husband, who completely failed to comply with the case plan or court orders. She
notes that throughout the case, she attempted to comply and finally achieved major progress
by the time the TPR hearing was held. By then, appellant had more than thirteen weeks of
sobriety and had left her husband. At the time of the TPR hearing, A.S. had been in
“stranger” foster care for only seven months because, for approximately the first six months
of the case, A.S. was living with relatives. Further, appellant reiterates that A.S. could have
been placed with her in her treatment facility in as little as one to two weeks from the TPR
hearing through the transitional program offered through her drug-treatment facility. The
program would provide her housing and assist her in finding housing beyond the treatment
facility. The program also would assist her in finding employment and would provide family
counseling for appellant and A.S.
While appellant stops short of arguing that courts should ignore the statutory time
frames imposed in these cases, acknowledging that children deserve permanency, she points
out that the issue is that the need for permanency should not obliterate the ability of a family
to reunify when a parent has never physically abused or harmed her child, has made multiple
3
Appellant does not challenge the adoptability finding, and that finding must be
affirmed. Benedict v. Ark. Dep’t of Human Servs., 96 Ark. App. 395, 242 S.W.3d 305 (2006).
10
Cite as 2017 Ark. App. 368
attempts to comply with the court’s orders, and was finally able to attain about three and a
half months of sobriety. Here, even conducting the potential harm analysis in broad terms,
appellant claims that the evidence was not sufficient to show that she continued to pose a
risk of harm to A.S. if he had continued contact with her. See Bearden v. Ark. Dep’t of Human
Servs., 344 Ark. 317,42 S.W.3d 397 (2001).
The intent of the TPR statute is to provide permanency in a minor child’s life under
circumstances in which returning the child to the family home is contrary to the child’s
health, safety, or welfare, and when the evidence demonstrates that the return cannot be
accomplished in a reasonable period of time as viewed from the child’s perspective. Garrett
v. Ark. Dep’t of Human Servs., 2016 Ark. App. 401, 499 S.W.3d 659; Ark. Code Ann. § 9-
27-341(a)(3). The child’s need for permanency and stability may override the parent’s
request for additional time to improve the parent’s circumstances. Id. The issue is whether
the parent has become a stable, safe parent able to care for the child. Id. The court may
consider the parent’s past behavior, and even full compliance with the case plan is not
determinative. Id.
Appellant acknowledges that the circuit court could not have returned A.S. to her
on the day of the TPR hearing. The testimony and evidence revealed that at the time of
the TPR hearing, A.S. was less than three years old and had been in ADHS custody for
thirteen months. Although appellant had a long history with ADHS prior to A.S.’s removal,
she had entered a rehabilitation program only one month prior to the TPR hearing. ADHS
had provided services to appellant throughout her pregnancy with A.S. and following his
birth. ADHS county supervisor Gibson testified, “[Appellant] is currently in an inpatient
11
Cite as 2017 Ark. App. 368
treatment facility for alcohol and drug issues. She also has some mental health issues that
need to be addressed. She was not stable in employment and did not have a job just prior
to going inpatient. She was not stable during the case with housing. She has not completed
parenting or complied with counseling. She went in rehab the first part of August 2016.”
Although appellant asked for more time to prove her sobriety and stability, this
“wait-and-see” situation is the type of instability from which the TPR statute intends to
protect children. Basham v. Ark. Dep’t of Human Servs., 2016 Ark. App. 232, at 4–5, 490
S.W.3d 330, 333. Living in a state of prolonged uncertainty is not in the child’s best interest.
See Coleman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 851, 379 S.W.3d 778 (referencing
Bearden, supra). Moreover, most of appellant’s testimony amounts to merely hopeful
speculation about future employment, housing, and maintained sobriety. Evidence of
parental improvement as TPR becomes imminent will not outweigh other evidence
demonstrating a failure to remedy the situation that caused the child’s initial removal, see
Duncan v. Ark. Dep’t of Human Servs., 2017 Ark. App. 252, __ S.W.3d __.
The credibility of any witness’s testimony is to be assessed by the trier of fact, and
the trier of fact may believe all, part, or none of it. See Henson v. Ark. Dep’t of Human Servs.,
2014 Ark. App. 225, 434 S.W.3d 371. The testimony and evidence support the circuit
court’s conclusion that leaving A.S. in limbo for several more months, waiting to see if
appellant’s speculations might be realized, posed a potential harm to A.S. Because the
findings of the circuit court are not clearly erroneous, we affirm.
Affirmed.
ABRAMSON and GLOVER, JJ., agree.
12
Cite as 2017 Ark. App. 368
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Mary Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
13