Opinion
CV-23-494
01-24-2024
CHARLES ALLEN KIRTLEY APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant. Demarcus D. Tave, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Dana McClain, attorney ad litem for minor child.
APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43JV-22-9] HONORABLE BARBARA ELMORE, JUDGE.
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.
Demarcus D. Tave, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor child.
STEPHANIE POTTER BARRETT, JUDGE.
Charles Kirtley appeals the Lonoke County Circuit Court's termination of his parental rights to his son, MC, born January 2, 2022. Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Kirtley's counsel has filed a no-merit brief listing all rulings adverse to him in the termination hearing and asserting there are no issues that would support a meritorious appeal as well as a motion to withdraw as counsel. The clerk of this court notified Kirtley of his right to file pro se points, which he has done. We affirm the termination of Kirtley's parental rights and grant his counsel's motion to withdraw.
MC's mother, Sara Jenkins, executed a consent for the voluntary termination of her parental rights.
I. Standard of Review
Termination-of-parental rights cases are reviewed de novo, and we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Morgan v. Ark. Dep't of Human Servs., 2021 Ark.App. 101, 617 S.W.3d 743. 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. Griffin v. Ark. Dep't of Human Servs., 2017 Ark.App. 635.
II. Facts
DHS filed a petition for ex parte emergency custody of MC on January 7, 2022; Kirtley was named as the putative father in the petition. In the attached affidavit, the familyservice worker alleged that MC had tested presumptively positive for methamphetamine at birth; his mother, Sara Jenkins, had limited prenatal care, had exposed MC to syphilis, and had admitted using methamphetamine while pregnant; and Jenkins had disclosed that both she and Kirtley used methamphetamine, although they both had tested negative for illegal substances on January 4. Jenkins and Kirtley lived together but were not married; neither had stable employment, although Kirtley cut firewood, scrapped metal, did mechanic work, and performed other odd jobs to earn money. When the family-service worker visited the home, it was so cold inside she could see her breath; the home was in need of repairs; and it did not have electricity or a working refrigerator. The circuit court signed an ex parte order granting DHS emergency custody of MC.
A probable-cause hearing was held on January 12, after which the circuit court continued MC's custody with DHS. The circuit court adjudicated Kirtley MC's father based on a signed acknowledgement of paternity entered into evidence at the hearing. Kirtley was awarded supervised visitation three times a week for one and a half hours. He was ordered to complete parenting classes; to participate in individual counseling; to submit to random drug screens at least twice a month; to remain drug-free; to undergo a drug-and-alcohol assessment and follow any recommendations; to enter and complete residential treatment for substance abuse as recommended; to attend AA/NA meetings at least twice a week and provide documentation of attendance; to obtain and maintain stable housing and employment; to maintain stable income; to complete a psychological evaluation; to attend visitation; and to comply with the terms of the case plan and maintain contact with DHS.
An adjudication hearing was held on February 22; MC was adjudicated dependent-neglected by Jenkins's stipulation that she was an unfit parent due to drug use. Custody of MC was continued with DHS; the goal of the case was reunification with a concurrent plan of permanent custody with a family member.
A review hearing was held on May 22; in the order from that hearing, the circuit court found that both Kirtley and Jenkins were noncompliant with the case plan; the goal of the case remained reunification with a concurrent plan of permanent custody with a relative. Each parent was awarded one-hour visitations twice a week, but they were ordered not to visit at the same time. A second review hearing was held on August 9; custody of MC remained with DHS with reunification as the goal and a concurrent plan of permanent custody with a relative. Although the circuit court found that both parents were partially compliant with the case plan, it specifically noted that the main issue was drug use, which was not being addressed, and that there had been no progress with that issue during the eight months the case had been open.
The attorney ad litem filed a petition to terminate parental rights on February 6, 2023. The grounds for termination relating to Kirtley were that MC had been adjudicated dependent-neglected and had continued out of the home of the noncustodial parent for twelve months, and despite a meaningful effort by DHS, the conditions necessitating removal had not been remedied; other factors arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of custody with the parent was contrary to the child's health, safety, or welfare, and the parent had manifested the incapacity or indifference to remedy the issues; and the parent had subjected the child to aggravated circumstances. The attorney ad litem further alleged that it was in MC's best interest for parental rights to be terminated.
A permanency-planning hearing was held on March 9. In the resulting order, the circuit court noted that Jenkins had voluntarily relinquished her parental rights, and it changed the goal of the case to adoption as to Kirtley, explaining that it did so because Kirtley had not completed any requirements in the case plan, nor had he made any significant progress; there were health and safety concerns regarding his ability to care for MC, including his continued drug use, refusal to complete inpatient rehabilitation, lack of employment and stable income, and inability to provide a clean and safe environment for MC. The circuit court specifically found Kirtley had not completed parenting classes; had not attended AA/NA meetings; had not completed thirty days of inpatient rehabilitation as recommended by his drug-and-alcohol assessment; had tested positive on multiple drug screens; had not obtained or maintained employment; had not maintained an appropriate house; and had attended only minimal counseling. The circuit court continued supervised visitation but noted that if Kirtley was disruptive, it would be ended immediately.
The termination-of-parental-rights hearing was held on April 29, 2023. Joy Brewer, a DHS program assistant, testified that she facilitated visitation for Kirtley; she said Kirtley was always attentive to MC during visitation but that he had never been given unsupervised visits or increased visitation. She went to Kirtley's house in March 2022; he was not home, but she saw piles of "stuff" outside the house, including two partially burned piles of trash, and metal was strewn throughout the yard, posing a safety hazard for a young child.
Whitney Bradley, Kirtley's caseworker, testified that Kirtley had completed his drug-and-alcohol assessment on March 14, 2022, and the report recommended that he complete thirty days of residential treatment; however, as of the date of the termination hearing, he had not completed any treatment. She said that Kirtley missed multiple intake appointments, and there were a couple of times where he showed up but was not allowed to stay. The last attempt at inpatient treatment was on March 1, 2023, but Kirtley left on March 5, stating that he could never be a parent to his son and that he would just let his foster parents have him. Bradley testified that Kirtley had never completed intensive outpatient drug treatment, and that drug use continued to be an issue in the case. She stated that she had taken pictures of the inside of Kirtley's home on March 1, 2023, and in her opinion, it was not appropriate for a child MC's age, and the outside of Kirtley's property was still a health-and-safety risk for a child, even though Kirtley asserted that he had made improvements in the yard. She stated that running water had only recently been restored in the house after being shut off for about a year, and she had not received notice that the electricity had been restored. She testified that Kirtley had completed only one-half of his parenting classes; and while he provided a clean drug screen on the day of the termination hearing, she said that he historically did not test clean, with positive drug screens usually for methamphetamine and amphetamines, and she did not believe he had resolved his drug issues. Kirtley had not provided her with any proof of income, although he had provided her with proof of attending AA/NA meetings since the goal of the case had been changed to termination. She testified that Kirtley had not made diligent efforts toward reunification, nor had he made substantial measurable progress, and she recommended terminating Kirtley's parental rights because it was in MC's best interest to do so. She was concerned that MC would be subjected to health-and-safety risks if Kirtley was given custody due to Kirtley's continued drug use, his lack of employment, the lack of electricity in the house, and the environmental conditions of the house. She said that there was nothing more DHS could offer Kirtley to help him resolve those issues, and she did not believe he could resolve the issues even if given more time. Bradley testified that MC has no adoption barriers; there were 363 matches for his possible adoption, and his foster parents were interested in adopting him as well.
Mary Ousley testified that she was providing homemaker services to Kirtley when the case opened. She explained that Kirtley's yard was covered in scrap metal and old cars, and the enclosed porch had a lot of chemicals and paint stored in it. She said that the inside of the home was clean, but there was no electricity or water. Ousley said that she talked to Kirtley and Jenkins about getting the yard and porch clean, but they made only small improvements, and the house as a whole was still not appropriate for a small child because there were too many hazards.
Kirtley testified that he was currently unemployed, but he was beginning a job at McDonald's on the following Monday. He admitted that during the pendency of the case, his only jobs had been scrapping metal and donating plasma twice a week, which he agreed was not reliable income. He testified that he last used drugs on March 1, 2023, the day he entered inpatient rehabilitation, but he left on March 5 because he had not detoxed and gotten the methamphetamine out of his system and was depressed, thinking he could not provide for his son. Kirtley stated that he was attending counseling where they discussed his substance-abuse struggles and how he was going to sustain his sobriety. Kirtley asserted that the outside of his house was cleaned up and that the yard was "90 percent better," and the inside of his house was still clean. Although electricity was not yet restored, he expected it to be in a few days. Kirtley testified that he did not believe his home was appropriate for his son yet because he had some repairs to complete in MC's room. Nevertheless, he believed he could take MC home after the hearing, stating that he would not let MC "get in harm's way." Kirtley admitted that he had not diligently worked toward reunification at the beginning of the case, stating that Jenkins had tried to make him believe he was not MC's father, but he believed that he had made significant, measurable progress since the DNA results confirmed that MC is his son. He believed he should be given more time because MC needed him. He said that he quit using drugs after the DNA test confirmed he is MC's father, and he wanted to be a provider for MC.
Kirtley moved for a directed verdict at the close of the attorney ad litem's case, asserting that DHS had failed to make meaningful efforts to assist Kirtley in reunifying with his son. That motion was denied.
Kirtley called Bridgett Rappold, the Lonoke County DHS supervisor, who testified that referrals were made for Kirtley for counseling. Rappold agreed that homemaker services could be provided even if there were no utilities; she admitted that they had not been provided since October 2022, but she believed that the services were sufficient for a home with no water or electricity.
Kirtley was recalled to the witness stand. He admitted that he waited until pretty late in the case to start some of the services; his reason for waiting was because he was told by Sarah's attorney that he was not going to be recognized as MC's father, even though he had signed an acknowledgement of paternity. While Kirtley agreed that he has a longstanding drug issue, he testified that he had started attending NA meetings and had a sponsor, and MC was his reason to maintain his sobriety. Kirtley also stated that counseling has been beneficial to him to keep him focused on his goals.
At the end of the termination hearing, the circuit court terminated Kirtley's parental rights on all three bases alleged in the termination petition. The circuit court noted that Kirtley had been adjudicated MC's legal father on the basis of his signed acknowledgement of paternity, and this finding had been later confirmed by DNA testing. The circuit court specifically found that Kirtley had not completed any services offered to him in the case. Kirtley's drug-and-alcohol assessment had recommended either thirty days' inpatient drug treatment or intensive outpatient treatment of nine individual and twenty-seven group sessions, but Kirtley had failed to comply with any drug treatment. Although he attempted to enter inpatient treatment several times, he never stayed. Kirtley had tested positive for amphetamines and methamphetamine throughout the case, and he began refusing drug screens after his last attempt at inpatient drug treatment. He had completed only one-half of the required parenting classes; had never progressed in visitation from supervised visitation; had not been employed during the pendency of the case; had an outstanding balance of over $600 on his electric bill, which prevented him from having electricity; had only recently had his water restored; and had clutter and hazards inside and outside his home that were inappropriate for a young child. In terminating Kirtley's parental rights, the circuit court noted that the case had been open for fifteen months, and he had been provided a myriad of opportunities to get his life in order, but he did not take advantage of the services afforded him. The circuit court stated that DHS could only make the referrals, it could not make Kirtley take advantage of them, and his failure to do so was no one's fault but his own. The circuit court opined that no matter how long it left the case open, there was little likelihood of reunification, and it was in MC's best interest to terminate Kirtley's parental rights because MC deserves permanency, he is adoptable, it was clear that Kirtley was not going to do what he needed to do, and it would be a health risk to return MC to Kirtley. Kirtley asked if he could have a last visit, but the circuit court denied that request.
III. Discussion
The first adverse ruling was the termination of Kirtley's parental rights. Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Rylie v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 366, 554 S.W.3d 275. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Id. Each step requires proof by clear and convincing evidence, which is the degree of proof that will produce in the finder of fact a firm conviction regarding the allegation sought to be established. Id.
Proof of only one ground is required to support the circuit court's termination of parental rights. Shipp v. Ark. Dep't of Hum. Servs., 2020 Ark.App. 230, 599 S.W.3d 149. Kirtley's attorney chose to discuss the aggravated-circumstances ground as the basis to support the termination. Aggravated circumstances exist when a determination has been made by a court that there is little likelihood that additional services to the family will result in successful reunification. Beavers v. Ark. Dep't of Hum. Servs., 2023 Ark.App. 508, 679 S.W.3d 437. This court has held that a parent's failure to demonstrate "sufficient parenting skills to regain custody of the children or to be trusted with a trial placement or unsupervised visitation" supports an aggravated-circumstances finding. Jones v. Ark. Dep't of Hum. Servs., 2019 Ark.App. 299, at 8, 578 S.W.3d 312, 318. A parent's failure to remedy drug issues despite services directed at drug addiction also supports termination on the aggravated-circumstances ground. Lloyd v. Ark. Dep't of Hum. Servs., 2022 Ark.App. 461, 655 S.W.3d 534. A finding of aggravated circumstances does not require that DHS prove that meaningful services toward reunification were provided. Id.
Here, Kirtley had never progressed to unsupervised visitation or a trial placement. Additionally, drug use was an issue throughout the pendency of the case; although given numerous opportunities to avail himself of inpatient drug treatment, Kirtley failed to do so, nor did he attempt to address his drug issues with intensive outpatient treatment. The circuit court was clear that it did not believe Kirtley's claims that he was no longer using drugs, stating that he had told the court the same thing on previous occasions, and it did not find his testimony to be credible. Furthermore, Kirtley had failed to complete parenting classes, he had never had employment, and by his own admission, his house was not ready for him to take MC home on the day of the termination hearing. The circuit court's finding of aggravated circumstances as a ground for termination was not clearly erroneous.
The circuit court also found it was in MC's best interest to terminate Kirtley's parental rights. A best-interest finding must be based on the circuit court's consideration of at least two factors: (1) the likelihood that the child will be adopted if parental rights are terminated, and (2) the potential harm caused by continuing contact with the parent. Baxter v. Ark. Dep't of Hum. Servs., 2017 Ark.App. 508. It is the overall evidence, not proof of each factor, that must demonstrate termination is in the child's best interest. Id.
With regard to adoptability, the unrebutted evidence from Whitney Bradley indicated that there were no barriers hindering a possible adoption; there were 363 possible matches, and MC's foster family was interested in pursuing adoption as well. A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Baird v. Ark. Dep't of Hum. Servs., 2023 Ark.App. 129.
Regarding potential harm, such analysis is to be conducted in broad terms and in a forward-looking manner. Id. The circuit court must consider harm to the child's health and safety that might occur from continued contact with the parent; there is no requirement to find actual harm would result or to identify the potential harm. Honeycutt v. Ark. Dep't of Hum. Servs., 2021 Ark.App. 6, 615 S.W.3d 741. Here, the circuit court found that MC would be subjected to potential harm if placed in Kirtley's custody because Kirtley had "not benefited from the services, his lifestyle remains unstable, he failed to remedy his drug issues, he has no employment nor income to support [MC] and his poor judgment interferes with his ability to care for [his] child." The evidence supporting termination of Kirtley's parental rights on the aggravated-circumstances ground, discussed above, also supports the circuit court's finding of potential harm. The circuit court did not believe Kirtley's claims that he had remedied his drug issues; he had demonstrated a pattern of poor judgment and noncompliance with the circuit court's directives throughout the case; he was unemployed; and he had not benefited from the services offered to him during the pendency of the case. On this record, the circuit court's finding that termination of Kirtley's parental rights was in MC's best interest was not clearly erroneous.
There were several other adverse rulings to Kirtley during the termination hearing. First, DHS and the attorney ad litem objected on the basis of relevancy when Kirtley's counsel asked Bridgett Rappold if one of Kirtley's former caseworkers had been fired by DHS for failure to provide services to clients; Kirtley's counsel argued that the question was relevant to whether Kirtley had received "meaningful services," but the circuit court sustained the objection because the question did not specifically apply to Kirtley's case. Because Kirtley's counsel could not tie the caseworker's inaction to Kirtley's case, it was not relevant to Kirtley. Furthermore, the aggravated-circumstances ground for termination does not require a finding that DHS provided meaningful services. This adverse ruling provides no basis for reversal.
Next, Kirtley testified that a DHS program assistant told him that it did not matter if Kirtley completed his drug rehabilitation services, that if he was not MC's biological father, he would not be able to obtain custody of MC. The attorney ad litem objected to that testimony as hearsay, and the circuit court sustained the objection. Under questioning by the circuit court, Kirtley agreed that he had signed an acknowledgement of paternity at the probable-cause hearing, that the circuit court had adjudicated him to be MC's father on the basis of that acknowledgement, and that he had been treated as MC's father throughout the dependency-neglect case. This adverse ruling provides no meritorious basis for reversal.
Counsel next addresses Kirtley's request for additional time to gain custody of MC, which was denied when the circuit court terminated his parental rights. This ruling does not provide a basis for reversal. Kirtley had never been in compliance with the case plan; he admitted that he did not begin to really work the case plan until the DNA testing proved that he is, in fact, MC's biological father, even though he had signed an acknowledgement of paternity and had been treated as MC's father throughout the case. This court has consistently held that eleventh-hour attempts to comply with court orders do not outweigh prior noncompliance and need not be credited by the circuit court. Watts v. Ark. Dep't of Hum. Servs., 2023 Ark.App. 339, 669 S.W.3d 831. A parent's past behavior is often a good indicator of future behavior, and a child's need for permanency and stability may override a parent's request for more time to see if he can change his past behavior. Id.
The last adverse ruling was the denial of Kirtley's request for a final visit with MC. When the circuit court terminated Kirtley's parental rights, he asked if that meant he "don't get no more visits," and the circuit court told him that he did not. Kirtley had an outburst in the courtroom, telling the circuit court that he would be back in sixteen and a half years clean and sober. In the termination order, the circuit court ordered that there would be no final visitation, finding that, given Kirtley's outburst in court, it did not want MC's mental health to be affected by a final visit. The decision whether to order a final visit between a child and parent is within the discretion of the circuit court; the best interest of the child must be considered. Best v. Ark. Dep't of Hum. Servs., 2020 Ark.App. 485, 611 S.W.3d 690. Here, the circuit court clearly considered MC's best interest when it denied Kirtley's request for a final visit, especially in light of his outburst when his parental rights were terminated.
Kirtley has filed pro se points. He asks that this court reconsider the decision to terminate his parental rights, stating that he was at his best when there was a chance for him to be a parent to MC; that he is not a bad person; that he loves MC and wants to be a part of his life; and that even though he is not perfect, he does not believe that is a reason to isolate him from his child. These arguments are essentially a request for this court to reweigh the evidence in his favor and to reach a result contrary to that of the circuit court; however, a circuit court does not commit reversible error by weighing the evidence differently than how appellant asks the evidence to be weighed. Schultz v. Ark. Dep't of Hum. Servs., 2022 Ark.App. 175, 643 S.W.3d 856.
Counsel concludes that the record clearly and convincingly supports the decision of the circuit court to terminate Kirtley's parental rights, and any argument challenging the statutory grounds or challenging the best-interest finding would be wholly without merit. From a review of the record and the brief presented to us, we hold that counsel has complied with the requirements for no-merit appeals and that the appeal is wholly without merit. We therefore affirm the termination of Kirtley's parental rights and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
MURPHY and BROWN, JJ., agree.