Opinion
CV-22-237
10-26-2022
CALVIN SUMMERS APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES
Leah Lanford, 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 child.
APPEAL FROM THE MARION COUNTY CIRCUIT COURT [NO. 45JV-20-20] HONORABLE DEANNA "SUZIE" LAYTON, JUDGE
Leah Lanford, 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 child.
RITA W. GRUBER, JUDGE
Appellant, Calvin Summers, appeals from an order of the Marion County Circuit Court terminating his parental rights to his son, Minor Child, born August 10, 2020. His sole point on appeal is that it was not in his son's best interest to terminate Summers's parental rights where he made significant and measurable progress, and additional time would not have put the child at risk of potential harm. We find no error and affirm the circuit court's order.
The court also terminated the rights of Minor Child's mother, Brandy Irey, but she is not a party to this appeal.
This case began on August 14, 2020, when the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of Minor Child alleging that he was at imminent risk of harm because his biological mother, Brandy Irey, had admitted to consuming alcohol daily during her pregnancy, including the day Minor Child was born; acknowledged that she was an "alcoholic"; and left the hospital as soon as Minor Child was delivered. When she returned shortly thereafter, she submitted to a drug screen that was positive for amphetamines and methamphetamine. The social worker at Baxter Regional Medical Center also reported to DHS that Irey had tested positive for amphetamines and methamphetamine in March and for opiates in June during prenatal medical appointments.
On August 17, 2020, the court entered an ex parte order for emergency custody. On December 3, 2020, the court entered an adjudication order finding Minor Child dependent-neglected based on parental unfitness, a finding to which Summers and Irey stipulated. The court set the goal of the case as reunification and ordered Summers to complete parenting classes; attend two NA/AA meetings a week or attend Celebrate Recovery meetings and provide proof of attendance; and attend mental-health counseling.
At the first review hearing in March 2021, the court found Summers was in partial compliance with the case plan and the court's orders. Specifically, the court found he was engaged in parenting instruction and had completed a drug-and-alcohol assessment, but it also found that he was unemployed, had not engaged in drug treatment, was not attending NA/AA meetings, had not participated in random drug screens when requested, had tested positive for illegal substances when he had been tested, and had not visited Minor Child since January 11. The court continued the goal of reunification and added a concurrent goal of adoption.
The court held a permanency-planning hearing on August 11, 2021, a year after Minor Child had been placed in DHS custody, and changed the goal of the case to adoption and termination of parental rights. The court found that neither Irey nor Summers had stable housing, employment, or transportation. The court also found that, although Summers had entered a residential drug-treatment program days before the hearing, he had made no progress during the case; had failed to attend NA/AA or Celebrate Recovery as ordered; had not gone to counseling since March 2021; and had visited with Minor Child only twice since December 2020. The court recognized that Summers had been "clean from illegal drugs" for twenty-five days but noted that twenty-one of those days had been spent in the county jail. The court found that neither parent had demonstrated the necessary consistency, suitability, and stability required to return custody of Minor Child to them. DHS filed a petition for termination of parental rights on October 3, 2021.
At the termination hearing, Summers testified that he has had "a drug issue" with methamphetamine for twenty-five years. He said he last used methamphetamine in July 2021, right before he was incarcerated. He had been "clean" for five months at the time of the hearing. He said he was participating in a year-long drug inpatient treatment program through a plea bargain due to criminal charges. But he said that he wanted to be in treatment and chose to be there to have a better life for his son. He admitted that he did not enter treatment until his son had been in DHS custody for a year and said he had not prioritized recovery because he had been "too wrapped up in my own self." He admitted he was unable to be a caregiver for Minor Child at the time of the hearing but said that he could be after he got out in seven months and got settled.
Martha Jackson, the DHS family-service worker for this case, testified that DHS did not believe it was in Minor Child's best interest to wait seven more months to determine whether Summers could safely have custody of him. Minor Child had been in a temporary living situation for seventeen months-his entire life. While she recognized that Summers was finally improving his situation, she noted that he had not made any progress for the entire first year Minor Child was in foster care and had failed to take advantage of visitation with the child during that time. She testified that his foster placement was not a permanent option but said that he is easily adoptable, has no health issues, and is a "carefree, happy little boy that's very low maintenance."
The court entered an order on February 8, 2022, terminating Summers's parental rights on the grounds of twelve months out of the custody of the noncustodial parent without conditions having been remedied by him; subsequent factors since the filing of the petition demonstrating that placement with the parent is contrary to Minor Child's health, safety, or welfare; and aggravated circumstances in that Minor Child has been abandoned and there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (vii) & (ix). The circuit court found that Minor Child is adoptable and that he would be subjected to potential harm if returned to his parents. The court noted that Summers would be participating in residential treatment for seven more months and would be without stability for Minor Child. The court also found the following:
The father continues to reside at a rehabilitation facility and has never had stable housing throughout this case. If he leaves the facility, he will go to prison or be homeless. The child cannot be with him until he finishes the program which will not be for seven months. He has never had stable housing or employment throughout the case. He reportedly makes $750.00 every two weeks while in treatment that goes to the program for his treatment. He has a driver's license, having obtained same one year into this case but has no vehicle. He did not enter treatment until August 2021, which was one year after the child entered into the care of the Department. His alternative to treatment was prison time. He spent two weeks in jail in July 2021 for failure to pay his fines. He has had very limited sobriety prior to treatment having used methamphetamine within the last month prior to entering treatment. Father had been assessed for drug treatment in the beginning of this case but only entered treatment one year into the case based on an order of the criminal court. In the early summer of 2021, he only attended two visits for a four-month period then sporadic visits until the last hearing date when he entered drug treatment as a condition of his criminal case.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Hum. Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Shawkey v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 2, at 5, 510 S.W.3d 803, 806. Credibility determinations are left to the fact-finder. Id.
In finding that termination is in the best interest of the child, the circuit court is required to consider the likelihood that the juvenile will be adopted and the potential harm to the health and safety of the child that might result from returning the child to the parent's custody. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). Neither of these factors needs to be established by clear and convincing evidence. Bentley v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 374, at 14, 554 S.W.3d 285, 294. The court is not required to find that actual harm would result or to affirmatively identify a potential harm. Dowdy v. Ark. Dep't of Hum. Servs., 2009 Ark.App. 180, 314 S.W.3d 722. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Samuels v. Ark. Dep't of Hum. Servs., 2014 Ark.App. 527, 443 S.W.3d 599. Finally, a parent's past behavior is often a good indicator of future behavior and may be viewed as a predictor of likely potential harm should the child be returned to the parent's care and custody. Shawkey, 2017 Ark.App. 2, at 6, 510 S.W.3d at 807; Helvey v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 418, at 10, 501 S.W.3d 398, 404.
Summers does not challenge the grounds for termination. He argues only that the circuit court's best-interest finding is clearly erroneous because he had made significant and measurable progress and additional time would not have put Minor Child at risk of potential harm. He argues that the evidence demonstrated he had worked diligently for five months before the hearing to take responsibility for his actions. He contends that five months of inpatient treatment in the life of an addict is substantial and measurable even if the impetus causing him to do so was the ultimatum by the criminal court. Further, he argues that seven months of additional time would not have been harmful to Minor Child. He argues that there is no "drop dead date" for returning a child to his parents and that the period that a parent works toward reunification must be flexible.
We begin our analysis by looking at the intent behind the termination-of-parental-rights statute, which is to provide permanency in a child's life when a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). The circuit court alluded to this at the conclusion of the hearing before issuing its oral ruling. The court specifically recognized that Summers appeared to be on a positive path forward but said that the law is "designed for the child and from the eyes of the child," noting that Minor Child had been in foster care his entire life, seventeen months at the time of the hearing. The court said that children progress on a different scale than adults do and have different developmental stages than an adult.
The court also stated that Summers had not chosen to enter treatment for a year while Minor Child remained in DHS custody but had chosen treatment to avoid prison as part of a plea bargain. The court noted that it was "one thing to maintain" sobriety in the inpatient structure but would be different given the temptations out in the community when no one was watching over Summers's shoulder. The court found that when he completed the treatment program, he would have to obtain stable employment, a steady income, and a stable home, none of which he had provided throughout the case.
In considering potential harm, the circuit court is not required to find that actual harm would result or affirmatively identify a potential harm. Jennings v. Ark. Dep't of Hum. Servs., 2021 Ark.App. 429, at 9, 636 S.W.3d 119, 125. In addition, a person's past behavior is often a good indicator of future behavior. Id. In this case, except for the five months immediately preceding the hearing, Summers had no stable housing or job, was addicted to methamphetamine and had been for twenty-five years, and failed to visit his son when provided the opportunity to do so. He finally began treatment when facing prison time if he did not. Moreover, he still had seven months of the program to complete, assuming he stuck with it, before he could attempt to obtain stable housing and employment outside the structure of inpatient treatment. We have consistently held that eleventh-hour compliance does not have to be credited by the circuit court and does not outweigh prior noncompliance. Jennings, 2021 Ark.App. 429, at 10, 636 S.W.3d at 125. Like the parent in Jennings, Summers chose to wait until his own freedom was at stake before attempting to address his substance-abuse issues and take responsibility for his son, who had remained in a temporary foster home for over a year.
Summers essentially asks us to reweigh the evidence in his favor and adopt a timetable more fitting to his circumstances, which we will not do. Morris v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 411, 586 S.W.3d 203. Minor Child had been in foster care for his entire life at the time of the hearing. He would be over two years old when Summers completed the treatment program, assuming Summers did complete the program rather than go to prison. Particularly in recognition of Minor Child's need for stability and permanence, we cannot say that the circuit court's best-interest finding is clearly erroneous.
Affirmed.
Virden and Vaught, JJ., agree.