Opinion
CV-22-212
11-16-2022
MARLA FARRIS AND JEREMEY LEWIS APPELLANTS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES
Brian L. Johnson; and The Applegate Law Firm, PLLC, by: Ryan J. Applegate, for separate appellant Marla Farris. Leah Lanford, Arkansas Commission for Parent Counsel, for separate appellant Jeremy Lewis. Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Casey D. Copeland, attorney ad litem for minor children.
APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10JV-20-4] HONORABLE BLAKE BATSON, JUDGE
Brian L. Johnson; and The Applegate Law Firm, PLLC, by: Ryan J. Applegate, for separate appellant Marla Farris.
Leah Lanford, Arkansas Commission for Parent Counsel, for separate appellant Jeremy Lewis.
Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.
Casey D. Copeland, attorney ad litem for minor children.
MIKE MURPHY, JUDGE
Marla Farris and Jeremey Lewis appeal the termination of their parental rights to their daughter, MC (born February 19, 2014). On appeal, Marla argues that there are no grounds supporting termination of her parental rights and that termination is not in MC's best interest. Jeremey's point on appeal is that the court erred in denying his request for new counsel. Their points were presented in separate briefs within this appeal. We affirm.
On January 15, 2020, the Arkansas Department of Human Services (DHS) exercised emergency custody of MC due to a credible disclosure of sexual abuse by her father, Jeremey. The affidavit accompanying the petition for dependency-neglect stated that MC had disclosed the abuse by Jeremey to Marla over a year before, but Marla "did nothing" about it. Following removal, Jeremey was arrested for rape and possession of child pornography. Marla was arrested for endangering the welfare of a minor.
On April 3, the circuit court entered a stipulated agreed order adjudicating MC dependent-neglected based on sexual abuse. No visitation was granted. A month later, Marla was granted supervised visitation on the recommendation of MC's therapist. By January 4, 2021, Marla was in compliance and was permitted to begin overnight weekend visits and was working toward trial-home placement. That was taken off the table and visits became supervised again less than a month later after DHS learned that Marla was in regular contact with Jeremey and over a (later unfounded) suspicion that Marla had let Jeremey have contact with MC (it turned out that MC had just seen a photo of Jeremey on Marla's phone). Marla testified that by this time, she had broken up with Jeremey, and some of their messages corroborated that, but DHS had already changed the visitation back to supervised before receiving copies of the messages and videos exchanged between Marla and Jeremey.
It was at this juncture that Marla's progress began to backslide. At the termination hearing, Ali Hollingshead, MC's therapist, testified that she was holding family therapy between Marla and MC but ended the family sessions in June because Marla would try and bring up MC's need to forgive her father. Marla would further get loud and angry, and she continued trying to bring up issues with DHS, the case, or Jeremey. Hollingshead testified that in their very last therapy session, MC was curled into a ball, crying on the couch due to her mother's outbursts. It was Hollingshead's professional opinion that reuniting Marla and MC would not be good for MC's emotional well-being.
Kristy Witherington, a program assistant with DHS, also testified. She testified that she had supervised the visits between Marla and MC. She said that the visits generally went okay, but she had notes of five occasions when she had to intervene. On those occasions, Marla had initiated topics that DHS deemed inappropriate (usually talking about the case or Jeremey). At least two times, Marla made MC cry. Glenda Cooper, the family services supervisor, testified that just days before the termination hearing, Marla had to be pulled from visitation with MC for yet again initiating inappropriate conversation. Marla told Glenda that she did not know what had happened to MC, the police in Amity didn't like her, she is a good mom, and that MC is being brainwashed.
Glenda testified that DHS was recommending termination because it was concerned with Marla's ability to parent MC. Throughout the case, Marla had given DHS the impression that she did not believe MC had been sexually abused, that MC was "brainwashed" and was told to lie, and that the sexual abuse was a misunderstanding. For a year, Marla maintained a relationship with Jeremey, a man who was credibly accused of sexually abusing her daughter and in jail for possession of child pornography. It was DHS's position that Marla's decisions and behavior indicated that she was incapable of protecting MC.
At the conclusion of the hearing, the circuit court found that DHS had met its burden, granted its petition, and terminated Marla's and Jeremey's parental rights. On appeal, Marla argues that grounds do not support termination of her parental rights and that termination is not in MC's best interest. Jeremey limits his argument to the singular point that the court erred in denying his request for new counsel.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Supp. 2021), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the child, including consideration of the likelihood that the child will be adopted if the termination petition is granted and 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). The order must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).
The circuit court found the following statutory grounds supported termination: Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (twelve months out of the custody of the parent and failure to remedy conditions that caused removal); section 9-27-341(b)(3)(B)(i)(b) (twelve months out of the noncustodial parent's home and failure to correct conditions that prevent child from safely being placed in parent's home); section 9-27-341(b)(3)(B)(ii)(a) (willful failure to provide significant material support or to maintain meaningful contact); section 9-27-341(b)(3)(B)(vi)(a) (sexual abuse of a juvenile or sibling perpetrated by the parent or parents); section 9-27-341(b)(3)(B)(vii)(a) (subsequent factors demonstrate that placement of the juvenile with the parent is contrary to the juvenile's health, safety, or welfare); section 9-27-341(b)(3)(B)(viii)(a) (sentenced in a criminal proceeding for a substantial period of the juvenile's life); and section 9-27-341(b)(3)(B)(ix)(a) (aggravated circumstances: juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification).
It further found that termination of Marla's and Jeremey's parental rights was in MC's best interest.
We review termination-of-parental-rights cases de novo. Parnell v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 108, at 11-12, 538 S.W.3d 264, 272-73. 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. Id. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is 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 resolving the clearly-erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep't of Hum. Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). On appellate review, this court gives a high degree of deference to the circuit court, which is in a far superior position to observe the parties before it. 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. Friend v. Ark. Dep't of Hum. Servs., 2009 Ark.App. 606, 344 S.W.3d 670.
The purpose of the termination-of-parental-rights statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in a child's life in all instances in which the return of the child to the family home is contrary to the child's health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the child's perspective. 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. Shaffer v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 208, 489 S.W.3d 182.
I. Marla
One of the grounds on which Marla's parental rights were terminated was the sexual-abuse ground. Arkansas Code Annotated section 9-27-341(b)(3)(B)(vi)(a) provides as a ground for termination that the court has found the juvenile dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile's parent or parents. In this case, MC's adjudication of dependency-neglect was based on sexual abuse.
Marla argues that because she was not the parent who sexually abused the child, the ground does not apply to her. She argues that she had no culpability in the perpetration of the sexual abuse. That, however, is not the test. The focus of an adjudication hearing is on the child, not the parent. Eason v. Ark. Dep't of Hum. Servs., 2012 Ark.App. 507, 423 S.W.3d 138. The Juvenile Code is concerned with whether the child is dependent-neglected. Id. An adjudication of dependency-neglect occurs without reference to which parent committed the acts or omissions leading to the adjudication; the juvenile is simply dependent-neglected. Parnell, 2018 Ark.App. 108, at 22-23, 538 S.W.3d at 278. The statute goes on to provide that a dependency-neglect finding based on sexual abuse shall constitute grounds for immediate termination of the parental rights of one or both of the parents. Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(b) . Because MC's adjudication was based on sexual abuse, this ground applies, regardless of who committed it. See Parnell, supra. This ground supports the termination of Marla's parental rights, and only one ground is needed. Lancaster v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 557, at 17, 566 S.W.3d 484, 494.
Marla next argues that the court's decision regarding best interest is also unsupported. 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. The best-interest determination must consider the likelihood that the child will be adopted and the potential harm caused by returning custody of the child to the parent. Selsor v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 182, at 5-6, 516 S.W.3d 314, 317-18. The court does not have to determine that every factor considered be established by clear and convincing evidence. Id. Instead, after considering all the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. Id.
Marla does not argue that MC is not adoptable. Regarding potential harm, the circuit court found that MC "would be subjected to potential harm because of the mother's inability to understand or believe her daughter and the suspicion she would not be able to protect the juvenile in the future." Marla asserts this is unfounded because it is speculative and ignores the evidence. A circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Morris v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 411, at 8, 586 S.W.3d 203, 208. Potential harm must be viewed in broad terms, and "potential" necessarily means that the court is required to look to future possibilities. Id. Further, the evidence presented indicates that despite services, Marla has not become a stable, safe parent capable of caring for MC. MC's therapist stated that returning MC to Marla's custody would be detrimental to MC's emotional well-being, and the caseworker opined that Marla's behavior demonstrated she did not believe MC's trauma had occurred. The circuit court's findings are sufficiently supported by this record. Marla has failed to establish clear error in the circuit court's best-interest finding.
II. Jeremey
Jeremey Lewis was eventually convicted of thirty counts of distributing, possessing, or viewing matter depicting child pornography and sentenced to forty-two years in the Arkansas Department of Correction. He makes no arguments regarding grounds or best interest. He instead contends that the circuit court erred in denying his request for new counsel.
At the termination hearing, the following exchange took place during examination of DHS's first witness, Glenda Cooper.
[DHS Counsel]: Judge, at this point, I'm going to object only facing the fact that this is outside Ms. Cooper's knowledge base. She's not an attorney. She wouldn't know the rules of evidence, what should be presented, what shouldn't be presented.
Jeremey: I object because both of you are attorneys, you both know the law, and I don't-
The Court: Mister-
Jeremey: -have to prove that I'm innocent.
The Court: Mr. Lewis?
Jeremey: You have to prove that I'm guilty.
The Court: Mr. Lewis? Mr. Lewis?
Jeremey: I would like to speak on my behalf. She's not doing anything
for me.
The Court: Mr. Lewis? Mr. Lewis? Don't speak out. Let your attorney ask the question. Let the Court make a ruling on-
Jeremey: My-I don't even have-
The Court: -the objection.
Jeremey: -an attorney. I fired her in court, and I'm firing her again right now. She's not doing anything for me. Listen to her.
The Court: Miss-
Jeremey: I am not being represented. This is not legal counsel. She's supposed to stand up for me, and she is not.
The Court: [Ms. Moritz] is trying to ask a question and there's been an objection. And the Court-the objection-
Jeremey: I made my objection to her before, before she ever took the floor. She disregarded my objection. She's not doing her job.
The Court: Mr. Lewis, I'm going to warn you again, don't-
Jeremey: As long as I'm on the record saying what I said.
The Court: I understand. It is on the record. It's on the record.
Ms. Moritz: I'll withdraw the question.
The Court: Do you want to rephrase your questions, Ms. Moritz?
Ms. Moritz: Yes, I would, Your Honor.
The Court: Okay.
Moritz then continued to proceed as Lewis's counsel, and neither Lewis nor Moritz said another word about the above exchange.
Jeremey argues that the circuit court committed reversible error by denying his request for new counsel and, citing Arroyo v. State, 2013 Ark. 244, 428 S.W.3d 464, argues that the circuit court should have performed a balancing test to determine whether he could obtain new counsel. Jeremey acknowledges that he did not use the "magic words" to request an attorney but contends that the practical effect of his protest would have been appointment of new counsel and a continuance of the termination hearing.
Jeremey did not raise this argument to the circuit court. Taylor v. Ark. Dep't of Hum. Servs., 2020 Ark.App. 227, at 3-4. Even in a case involving the termination of parental rights, we will not consider arguments made for the first time on appeal. Id. Parties are bound by the scope of the arguments presented at the trial level. Id. Accordingly, we cannot address the merits of Jeremey's argument.
We further point out that in this case, to whatever extent Jeremey's interruption was a motion for a continuance to retain new counsel, the Arroyo court specifically noted that "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." Arroyo, 2013 Ark. 244, at 5 n.2, 428 S.W.3d at 468, n.2 (cleaned up). Jeremey's arguments are unavailing.
Affirmed.
Harrison, C.J., and Barrett, J., agree.