Angel Morphew v. Arkansas Department of Human Services and Minor Children , 2022 Ark. App. 330 ( 2022 )

Cite as 2022 Ark. App. 330ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-89
Opinion Delivered September 14, 2022
ANGEL MORPHEW
APPELLANT
APPEAL FROM THE SCOTT
V. COUNTY CIRCUIT COURT
[NO. 64JV-19-9]
ARKANSAS DEPARTMENT OF HUMAN
HONORABLE, TERRY SULLIVAN
SERVICES AND MINOR CHILDREN
JUDGE
APPELLEES
AFFIRMED
MIKE MURPHY, Judge
Appellant Angel Morphew appeals from the Scott County Circuit Court’s
termination of her parental rights to her children, A.M. (DOB: 09-29-05) and B.M. (DOB:
02-15-08).1 On appeal, Morphew argues that the termination order was not supported by
sufficient evidence. She challenges only the circuit court’s best-interest finding. Specifically,
she argues that in light of her progress, she should have been granted more time to reach
reunification. We affirm.
The case began on January 31, 2019, when the Arkansas Department of Human
Services (DHS) removed the children from Morphew’s home due to her incarceration and
1
The circuit court also terminated the parental rights of the children’s fathers, but
neither father appealed. As such, this appeal pertains only to Morphew.
because she left the children with an inappropriate caretaker. Prior to the removal, DHS
received reports regarding sexual and substance abuse. On March 26, the children were
adjudicated dependent-neglected due to inadequate supervision by Morphew. She was
ordered to comply with the case plan; maintain stable housing; maintain sufficient income;
maintain transportation; submit to random drug screens; complete a drug-and-alcohol
assessment and comply with the recommendations; complete parenting classes; participate
in counseling; complete a psychological evaluation and comply with the recommendations;
resolve all criminal issues; refrain from illegal activity; achieve and maintain sobriety; keep
DHS informed of her contact information and significant life events; and visit her children.
A review hearing was held on July 23, wherein the court found that Morphew was
not in compliance with the case plan and was currently incarcerated due to a probation
revocation in Oklahoma. The court noted that prior to her incarceration, she did not have
stable and appropriate housing, she did not have stable income or transportation, she failed
to comply with individual counseling, and she had not attended the recommended intake
or outpatient treatment.
On October 8 at the first permanency-planning hearing, Morphew remained
incarcerated in Oklahoma, but the court continued the primary goal of the case as
reunification with a concurrent goal of adoption. At the second permanency-planning
hearing on January 28, 2020, the court found that Morphew had completed some services
while in jail and had been released from incarceration in November 2019. The court changed
the goal of the case to adoption. DHS filed a petition for termination, but a couple of months
2
later, an agreed order was entered continuing the termination hearing and granting
Morphew additional time for reunification. The order noted that Morphew had recently
made “significant progress.” Morphew had obtained a home, a driver’s license,
transportation, and employment; she was also attending parenting classes, beginning
counseling, attending visitation, and participating in drug court. A continuance was again
entered extending the hearing to October 27.
On September 30, DHS filed an amended petition for termination of parental rights,
but it again requested to withdraw the petition and treat the October 27 hearing as a
permanency-planning hearing. In a review order entered in April 2021, the court changed
the goal to adoption, and DHS filed its final petition for termination of parental rights. The
court conducted a termination-of-parental-rights hearing on August 24.
Tehrina Means, the caseworker from November 2020 to July 2021, testified that
Morphew had made progress, but she was not in compliance with the conditions of drug
court because when Means showed up for a home check, Morphew had a felon in her home.
Means testified that Morphew had not demonstrated that she learned from the case plan
and that she could protect the children because she continues to associate with felons.
Jackie Young, Morphew’s drug-court officer, testified that Morphew was currently in
community correction for ninety days on a drug-court violation for failing to report, not
completing community service, and failing to pay toward her fine. Young testified that if
Morphew continues her noncompliance with the conditions set forth by drug court, she
could face a one-year sanction or termination (she had already done a thirty-day sanction).
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Young testified that if Morphew were terminated from the program, she is facing a ten-year
sentence. Young testified that Morphew would be released in November. She explained that
there are four phases for drug court; Morphew was currently in phase II, but upon her
release, she will be back in phase I.
Tammy Biggs, the children’s therapist, testified that she stopped doing family therapy
because it was not beneficial. Specifically, Biggs stated Morphew was “manipulative” during
sessions.
Deborah Tatum testified that she had been the current caseworker for about four
weeks. She stated that the children cannot go home with Morphew because Morphew is
currently incarcerated and that it is in the best interest of the children to terminate
Morphew’s parental rights. Gayla Baker, the DHS supervisor, testified that Morphew is not
suitable to care for her children due to her history and drug-court issues.
Katherine Summit testified that she has been Morphew’s friend for about four or five
years. She said, “I know she’s made her mistakes but we’ve all made our mistakes.” She knew
Morphew loves her daughters and did not believe her parental rights should be terminated.
Morphew testified that she is currently working a therapeutic program in community
correction. She asked for more time because she has “been working on everything [asked of
her].” She testified that she has about nine months left before she phases out of drug court.
At the conclusion of the hearing, the court granted DHS’s petition to terminate Morphew’s
parental rights. This appeal followed.
4
A circuit court’s order terminating parental rights must be based on findings proved
by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2021). Clear and
convincing evidence is defined as that degree of proof that will produce in the fact-finder a
firm conviction as to the allegation sought to be established. Posey v. Ark. Dep’t of Health &
Hum. Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews
termination-of-parental-rights cases de novo but will not reverse the circuit court’s ruling
unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court on the entire evidence is left with a
definite and firm conviction that a mistake has been made. Id. In determining whether a
finding is clearly erroneous, an appellate court gives due deference to the opportunity of the
circuit court to judge the credibility of witnesses. Id.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, taking into consideration (1)
the likelihood that the juvenile will be adopted if the termination petition is granted; and
(2) the potential harm, specifically addressing the effect on the health and safety of the child,
caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-
341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing
by clear and convincing evidence of one or more of the grounds for termination listed in
section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination.
Phillips v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 256, at 10.
5
Morphew challenges only the potential-harm prong of the circuit court’s best-interest
finding. In terminating Morphew’s parental rights, the circuit court found that the children
would be subjected to potential harm due to Morphew’s failure to comply with the case plan
and her instability. Morphew argues that she made sufficient progress such that she did not
pose such a potential danger to her children as to warrant the extreme measure of
termination of parental rights. Alternatively, she argues that she should have been granted
additional time.
In assessing the potential-harm factor, the court is not required to find that actual
harm would ensue if the child were returned to the parent or to affirmatively identify a
potential harm. Krecker v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 537, at 12, 530 S.W.3d
393, 401. The potential-harm analysis is to be conducted in broad terms. Id., 530 S.W.3d at
401. Past actions of a parent over a meaningful period of time are good indicators of what
the future may hold. Id., 530 S.W.3d at 401.
Morphew’s incarceration throughout the case supports the best-interest finding.
Morphew had been incarcerated multiple times since the case opened. At the time of the
termination hearing, she was incarcerated due to her second sanction in the drug-court
program. Once Morphew was released from her current incarceration, she would have to
start the drug-court program from the beginning in phase I of IV. According to testimony,
the drug-court program should take only eighteen months; however, Morphew had been in
the program for that long but was still only in phase I. If her noncompliance with the
program continued, she would be terminated from drug court and face a sentence of ten
6
years’ incarceration. This evidence demonstrates that Morphew’s behavior over the course
of this twenty-eight-month long case does not show enough stability to render the circuit
court’s potential-harm finding clearly erroneous.
On appeal, Morphew admits that she did not have flawless compliance but that she
did what was necessary to reunify with her children: she had a home, income, and
transportation and had achieved sobriety. Morphew essentially asks us to reweigh the
evidence and overlook the fact that she failed to achieve stability demonstrated by her
repeated incarcerations and failure to resolve all criminal issues. See Phillips, 2022 Ark. App.
256, at 10 (“Even full compliance with the case plan is not determinative; the issue is whether
the parent has become a stable, safe parent able to care for his or her child.”).
Morphew directs us to Ivers v. Arkansas Department of Human Services, 98 Ark. App. 57,
250 S.W.3d 279 (2007), and Rhine v. Arkansas Department of Human Services, 2011 Ark. App.
649, 386 S.W.3d 577, where this court reversed the termination order despite the parent
having a few lapses in judgment late in the case. These cases are distinguishable because
Morphew’s behavior was more than a “lapse in judgment.” Rather, she was incarcerated
several times throughout the case, had not resolved her pending criminal charges, and was
not successful in family therapy. Accordingly, while she may have achieved sobriety, she had
not achieved stability. We agree with the circuit court that A.M. and B.M.’s need for
permanency and stability overrides Morphew’s request for additional time to improve her
circumstances.
Affirmed.
7
HARRISON, C.J., and WHITEAKER, J., agree.
Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.
8