Opinion
CV-23-571
02-14-2024
NATALIE JONES APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES
Eden Law Firm, by: Kimberly Eden, for appellant. Kaylee Wedgeworth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Dana McClain, attorney ad litem for minor child.
APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-21-79] HONORABLE LYNN WILLIAMS, JUDGE
Eden Law Firm, by: Kimberly Eden, for appellant.
Kaylee Wedgeworth, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Dana McClain, attorney ad litem for minor child.
RAYMOND R. ABRAMSON, JUDGE
Natalie Jones appeals the Garland County Circuit Court's May 25, 2023 order terminating her parental rights to her minor child (MC) (DOB: 05/30/18). On appeal, Natalie argues that the Arkansas Department of Human Services (DHS) did not prove statutory grounds by clear and convincing evidence and also challenges the circuit court's finding that termination was in the best interest of the child. For the following reasons, we affirm.
Corey Hewitt is a putative parent of MC, and his putative parent rights were also terminated, but he is not a party to this appeal.
On April 7, 2021, DHS exercised emergency custody of MC after she was passed among multiple relatives and others who could not care for her, and Natalie was incarcerated. Specifically, Natalie was arrested in March 2021, and MC was left in the care of her grandmother, Nora Wilson, but was then given to two or three other individuals without supplies or clothes who could not keep the child. The reason for removal was the same reason for a previous foster-care case that had ended just nine months prior. Additionally, Natalie was facing a six-year sentence on her pending charges.
On April 12, DHS filed a petition for ex parte emergency custody and dependencyneglect of the juvenile, and on the same day, the circuit court entered an ex parte order for emergency custody. On April 14, the circuit court held a probable-cause hearing where it found that probable cause existed for the emergency order to remain in place.
On June 9, the circuit court held an adjudication hearing and made a dependencyneglect finding based on neglect and parental unfitness. Specifically, the circuit court found neglect due to Natalie's failure or refusal to provide the food, clothing, shelter, or medical treatment necessary for the juvenile; Natalie's failure to protect the juvenile; Natalie's failure to assume responsibility for, or participate in, a plan to assume the responsibility for the juvenile; and Natalie's failure to appropriately supervise the juvenile. Additionally, the circuit court found that Natalie had resumed methamphetamine use and had frequently left the child with people who had methamphetamine addictions.
The court ordered that the case goal be reunification with a concurrent goal of placement with a relative or fictive kin. Further, it ordered Natalie to complete parenting education and a drug-and-alcohol assessment and follow any recommendations; to submit to random drug screens and a psychological evaluation; to participate in individual counseling; to attend all visitation; to obtain and maintain safe, suitable, and appropriate housing and income; to maintain an environment free from illegal substances; and to demonstrate stability and the ability to provide for the health, safety, and welfare of the juvenile.
On September 8, 2021, the circuit court held a review hearing. At that hearing, the circuit court ordered that the case plan goal remain reunification and placement with a relative or fictive kin and that the juvenile remain in DHS custody. The court also found Natalie noncompliant with the case plan because she had been incarcerated and was facing new felony charges in another county, had not visited the juvenile-even when not incarcerated-and had not participated in any services. As a result, the circuit court continued its prior orders regarding services for Natalie. Additionally, the circuit court found DHS had made reasonable efforts by providing or offering: a psychological evaluation; individual and family therapy; a drug-and-alcohol assessment; inpatient and outpatient treatment; random drug screens; home visits; foster-care placement; family provisional foster-care placement; transportation; visitation; parenting education; and casework services.
On December 8, 2021, the circuit court held a second review hearing in which it continued the goals of reunification and placement with a relative or fictive kin and continued custody of the juvenile with DHS. Additionally, the circuit court found that Natalie had still not complied with the case plan and orders of the court; not made contact with DHS or her child; not visited with MC; not participated in any services; and not demonstrated any progress towards the case plan or benefit from the services provided. Further, the circuit court continued its prior orders for services and found that DHS had made reasonable efforts.
On April 13, 2022, the circuit court held a permanency-planning hearing in which it changed the goal of the case to adoption and ordered that the juvenile remain in DHS custody. Specifically, the circuit court found that it could not authorize a plan to place custody of the juvenile with Natalie because she was again incarcerated; she did not have stable housing or a way to support herself; she was unable to care for the child; and she had not participated in services prior to her incarceration, although she had participated in parenting classes, anger management, and substance-abuse treatment while at the Department of Corrections. Additionally, the circuit court continued its previous orders for services and ordered that reunification services were to continue until termination of parental rights. Further, the circuit court found that DHS had made reasonable efforts.
On July 28, 2022, DHS filed a petition to terminate Natalie's and Corey's parental rights to MC. The circuit court entered an agreed review order on December 7. In this order, the parties agreed that the goal of the case revert back to reunification and that the concurrent goal be adoption following termination of parental rights; that the juvenile remain in the custody of DHS; that Natalie was compliant with the case plan; that DHS had made reasonable efforts; that Natalie would follow the court's previous orders regarding services; and that visitation would remain at the reasonable discretion of DHS.
On March 29, 2023, DHS filed a second petition to terminate Natalie's and Corey's parental rights to MC. On May 17, the circuit court held a hearing on the petition and terminated Natalie's parental rights to MC. Natalie now appeals the May 25 termination order.
An order terminating parental rights must be based upon a finding by clear and convincing evidence that (1) termination of parental rights is in the best interest of the children, considering the likelihood that the children will be adopted and the potential harm caused by returning the children to the parent's custody, and (2) at least one ground for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(A) and (B) (Supp. 2023).
Cases involving the termination of parental rights are reviewed de novo on appeal. Dinkins v. Ark. Dep't of Hum. Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). The appellate court will not reverse the circuit court's decision unless the court's finding of clear and convincing evidence is clearly erroneous. Yarborough v. Ark. Dep't of Hum. Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006). "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 committed." Gregg v. Ark. Dep't of Hum. Servs., 58 Ark.App. 337, 953 S.W.2d 183 (1997).
In determining whether termination is in the best interest of the juvenile, the circuit court must consider the entire history of the case and all relevant factors in the case, including the likelihood that the juvenile will be adopted and the potential harm that would be caused by returning the juvenile to the custody of the parent. Chaffin v. Ark. Dep't of Hum. Servs., 2015 Ark.App. 522, at 5, 471 S.W.3d 251, 255. Adoptability and potential harm, however, are merely two factors to be considered and need not be established by clear and convincing evidence. Id., 471 S.W.3d at 255. The evidence presented on potential harm must also be viewed in a forward-looking manner and considered in broad terms, but a circuit court is not required to find that actual harm will result or to affirmatively identify a potential harm. Id.
Natalie challenges the court's failure-to-remedy finding as a ground for termination. Only one ground is necessary for this court to affirm the termination. E.g., Boomhower v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 397, at 7, 587 S.W.3d 231, 235 ("Proof of only one statutory ground is sufficient to terminate parental rights."). Under the failure-to-remedy ground, the circuit court may terminate parental rights when it determines that a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve months, and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) . Further, under the failure-to-remedy ground, the fact that a parent begins to make improvements as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the reason for the initial removal from the parent's home. Yancey v. Ark. Dep't of Hum. Servs., 2009 Ark.App. 211, at 9. Here MC was removed from Natalie's legal custody on April 7, 2021, and adjudicated dependent-neglect on the basis of neglect and parental unfitness due to Natalie's failure or refusal to provide the food, clothing, shelter, or medical treatment necessary for the juvenile; Natalie's failure to protect the juvenile; Natalie's failure to assume responsibility for, or participate in, a plan to assume the responsibility for the juvenile; Natalie's failure to appropriately supervise the juvenile; and because Natalie resumed methamphetamine use and frequently left MC with people who had methamphetamine addictions.
Throughout the entirety of the case, MC was never placed in Natalie's custody, and the circuit court repeatedly found that DHS had made reasonable efforts by offering services such as a psychological evaluation; individual and family therapy; a drug-and-alcohol assessment; inpatient and outpatient treatment; random drug screens; home visits; fostercare placement; family provisional foster-care placement; transportation; visitation; parenting education; and casework services.
Despite these services, Natalie failed to remedy the cause of removal and was never found to be in compliance with the case plan or court orders until December 7, 2022, twenty months after MC had been removed. Yancey, 2009 Ark.App. 211, at 9 (the fact that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the situation that caused the children to be removed in the first place or that caused the children to remain outside the home). Specifically, Natalie has a history of failing to care for MC, and even when she was able to remedy the issue for a short amount of time, she ultimately ended up in the same situation that left MC without an appropriate caretaker. Boomhower, 2019 Ark. App., at 11, 587 S.W.3d at 237 ("A parent's past actions over a meaningful period of time are good indicators of what the future may hold.").
Natalie had left MC with Nora who she knew had a history of methamphetamine use. At the time of the termination hearing, Natalie's plan was for her boyfriend, who she had met in drug treatment, to provide the supervision for MC while Natalie was at work. Further, leading up to the termination of parental rights hearing, Natalie was discussing options for MC to live permanently with her foster parents through a guardianship so she would no longer be a fulltime parent. Since then, though she says she changed her mind and wants to be a parent to MC, she has not even taken simple actions such as changing her work schedule so she could provide the necessary supervision for MC. Gascot v. Ark. Dep't of Human Servs., 2022 Ark.App. 57, at 10 (termination affirmed on the failure to remedy ground where the mother, despite being aware for fifteen months that the circuit court's concern was her failure to protect and adequately supervise her children, the mother did nothing until the day before the termination hearing to arrange her work schedule in such a way as to not jeopardize the children's safety).
Additionally, Natalie tested positive for methamphetamine as late as nineteen months into the case and THC as late as twenty-three months into the case. Gutierrez v. Ark. Dep't of Human Servs., 2012 Ark.App. 575, at 8-12, 424 S.W.3d 329, 334-336 (affirming on failure-to-remedy ground when drug use continued for several months during the case). Part of the reason for DHS's past involvement was due to Natalie's drug use, namely methamphetamine. Boomhower, 2019 Ark.App. 397, at 11, 587 S.W.3d at 237 ("Past actions of a parent over a meaningful period of time are good indicators of what the future may hold."). Despite attending treatment twice during this case, she had still not completed a drug-treatment program. Harbin v. Ark. Dep't of Human Servs., 2014 Ark.App. 715, at 10-11, 451 S.W.3d 231, 237 (affirming on failure-to-remedy ground when the mother did not complete drug treatment until the child had been out of her custody over a year and was in a relationship with a former addict at the time of the termination hearing).
Natalie argues that the circuit court's findings were not supported by the evidence, that she had made progress, and that she remedied the conditions that caused removal. In support of her argument, Natalie claims there were no safety issues that precluded placement. However, all of Natalie's arguments are nothing more than a request to reweigh the evidence or second-guess the circuit court's credibility determinations. Boomhower, 2019 Ark.App. 397, at 8, 587 S.W.3d at 236. Further, Natalie does not cite any case law in support of reversal; she simply recites the testimony from trial and concludes that the evidence was insufficient. Hall v. Ark. Dep't of Human Servs., 2012 Ark.App. 245, at 10-11, 413 S.W.3d 542, 548 ("[A] mere conclusory statement without convincing argument or authority is not effective to raise a point on appeal."). As such, we affirm the circuit court's failure-to-remedy statutory finding.
Natalie next argues that sufficient evidence does not support the circuit court's bestinterest finding. A circuit court determines whether termination is in a juvenile's best interest by considering the likelihood that the juvenile will be adopted and the potential harm to the juvenile if there is continued contact with the parent. E.g., McNeer v. Ark. Dep't of Human Servs., 2017 Ark App. 512, at 5, 529 S.W.3d 269, at 272. These two factors are not essential elements of proof in a termination case, and thus, neither factor need be established by clear and convincing evidence. Id. at 6-7, 529 S.W.3d at 272-73.
Because Natalie does not challenge the circuit court's findings regarding adoptability, we are not required to address these findings. See, e.g., Easter v. Ark. Dep't of Human Servs., 2019 Ark.App. 441, at 8, 587 S.W.3d 604, 608. Natalie does, however, challenge the potential-harm factor. In considering potential harm, the circuit court is not required to find that an actual harm would result or affirmatively identify a potential harm. Drake v. Ark. Dep't of Human Servs., 2014 Ark.App. 475, at 5, 442 S.W.3d 5, 7 Further, potential harm must be viewed in a forward-looking manner and in broad terms. Id. "A parent's past actions over a meaningful period of time are good indicators of what the future may hold." Boomhower, 2019 Ark.App. 397, at 11, 587 S.W.3d at 237.
Here, this was the second time the circuit court had been involved with Natalie and MC, having just returned custody of MC to Natalie roughly nine months prior. By the time of the termination hearing, MC, not yet five years of age, had spent the majority of her life in foster care. Chassels v. Ark. Dep't of Hum. Servs., 2022 Ark.App. 503, at 19.
Moreover, Natalie previously had a case resulting in the adoption of two other children after being involved with DHS for methamphetamine usage and inadequate supervision. Core v. Ark. Dep't of Hum. Servs., 2022 Ark.App. 79, at 7 (holding evidence of prior termination of parental rights demonstrated potential harm). A parent's past behavior is often a good indicator of future behavior). Further, Natalie had been noncompliant for the first twelve months of the case, went back and forth on whether she wanted to be MC's full-time parent, and still did not have an appropriate plan for the supervision and care of MC while she would be at work. Nault v. Ark. Dep't of Hum. Servs., 2023 Ark.App. 84, at 7 ("[A] parent's failure to comply with court orders is sufficient evidence of potential harm.").
Natalie specifically argues that the words "potential harm" do not appear in the transcript; thus, it was not addressed in testimony. We do not find her argument persuasive. "The Juvenile Code does not require 'magic words' to be in the order to satisfy a 'best interest' inquiry." Minor Children v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 588, at 10, 589 S.W.3d 495, 501. Here, there was sufficient testimony for the court to consider the potential harm in making its best-interest determination; accordingly, we affirm the circuit court's bestinterest finding. Thus, we hold that the circuit court's order is not clearly erroneous.
Affirmed.
HARRISON, C.J., and HIXSON, J., agree.