Opinion
No. CV-20-81
06-03-2020
Veronica RANDALL-MCCOY, Appellant v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Minor Children, Appellees
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant. Andrew Firth, Office of Chief Counsel, for appellee. Kimberly Boling Bibb, attorney ad litem for minor children.
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Kimberly Boling Bibb, attorney ad litem for minor children.
RAYMOND R. ABRAMSON, Judge
Veronica Randall-McCoy appeals the Benton County Circuit Court order terminating her parental rights to her children, J.M. (D.O.B. 08/2013) and R.M. (D.O.B. 02/2012). On appeal, McCoy argues that the circuit court erred by finding that it was in the children's best interest to terminate her parental rights. We affirm.
On September 10, 2018, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect of J.M. and R.M. DHS listed Veronica as the mother and Wesley McCoy as the father. In the affidavit attached to the petition, DHS alleged that the children lived with Veronica and her boyfriend, Josh Anderson; that Veronica's two-year-old daughter S.F. had died; and that S.F.’s death was being investigated as a homicide.
On September 11, the court entered an ex parte order for emergency custody. Also on September 11, the court entered a probable-cause order. On October 10, the court continued the adjudication hearing for the second time and approved a trial home placement of J.M. and R.M. with Wesley.
On November 13, the court adjudicated J.M. and R.M. dependent-neglected based on abuse, neglect, and parental unfitness. The court further found that the children were subject to the Indian Child Welfare Act (ICWA), 25 U.S.C. sections 1902 et seq.
On July 11, 2019, DHS filed a petition to terminate Veronica's parental rights, and the court held a termination hearing on October 1. At the hearing, Veronica testified that her former boyfriend, Josh Anderson, is in jail on the charge of capital murder of S.F., and she discussed the circumstances surrounding S.F.’s death on September 4, 2018. Veronica testified that Anderson had been drinking beer most of the day and that he was intoxicated. She explained that she went to the store to purchase more beer for Anderson and that she left S.F., J.M., and R.M. at their apartment with Anderson. When she returned to the apartment, she found S.F. unconscious on the bathroom counter with bruises on her face and a cut on her cheek. She stated that she moved S.F. to the bed to change her diaper and that she was limp. She testified that she and Anderson argued for about twenty minutes before Anderson called 911.
Veronica testified that Anderson reported to her that S.F. had fallen and that J.M. and R.M. had caused her death, but she did not believe him. She admitted that she had reported Anderson's story to law enforcement. She further recognized that S.F. had older injuries, but she did not know how S.F. had sustained the injuries. She stated that weeks prior to her death, S.F. injured her arm, but at the time, she did not think S.F. had broken it. She also recognized that S.F. had a significant burn on her neck, but she did not know how S.F. was burned. She acknowledged that Anderson might have caused the injuries. Veronica testified that she had been in a relationship with Anderson for almost two years and that he had physically and verbally abused her. She stated that he became violent when he drank alcohol and that he had punched holes in the walls of the apartment that they shared with her children. She further noted that she was hospitalized on January 14, 2019, after Anderson gave her a concussion when he punched her on the right side of her head. She also testified that he went to jail on January 29, 2019. She denied helping Anderson get released from jail; however, she admitted that she had emailed him while he was in jail. She read the emails aloud at the hearing, and in the emails, Veronica stated that she loved Anderson, and she recounted her efforts to obtain his release from jail, which included attempts to obtain funds for his bail. Veronica testified that Anderson had asked for her help in obtaining his release from jail, and she believed that he would harm her if she did not comply with his request.
Veronica further testified that she is no longer in a relationship with Anderson, that she currently lives alone in a two-bedroom apartment, and that she is employed by McDonald's and Taco Bell. She stated that she regularly attends counseling and that she takes prescription medication for anxiety and depression. She testified that her support persons are her counselor and her mother and that she regularly attends church. She noted that she had been in a relationship with a coworker since she ended her relationship with Anderson.
Officer Leo Stroud with the Rogers Police Department testified that he first made contact with Veronica and Anderson on December 31, 2018, after he received a report from Anderson's aunt that Anderson had posted a video on Facebook wherein he placed a machete to his throat. He stated that Anderson denied being suicidal but that he eventually agreed to go to the hospital. Stroud testified that he again made contact with Veronica and Anderson on January 28, 2019, after he received a report concerning an individual chasing another individual with a machete. He explained that he went to Veronica and Anderson's apartment but that Anderson would not allow Veronica to leave. He stated that he and other officers eventually removed Veronica from the apartment and arrested Anderson but that Anderson head-butted him [Stroud] and struck him below the right eye. Anderson was arrested for third-degree aggravated assault on a family or household member, third-degree battery, resisting arrest, and obstructing governmental operations.
Adam Craig, the associate medical examiner at the Arkansas State Crime Laboratory, testified that he performed S.F.’s autopsy. He stated that S.F.’s cause of death was blunt force injuries to her head and abdominal region. He explained that S.F.’s head injury was a fracture to the back of her skull, which resulted in internal bleeding and swelling of her brain. He testified that something struck S.F.’s head or her head struck something hard. He stated that the injury could not have resulted from another child pushing S.F. He explained that S.F.’s abdominal injury was a liver tear, which was caused by a blunt injury to the abdomen that compressed her liver. He noted that the tear was bleeding into S.F.’s abdominal cavity. He further noted that S.F. had fresh rib fractures, a puncture to a lung, and bruises and abrasions on her head.
Craig further testified that S.F. had older injuries that she had sustained prior to her death. Specifically, he stated that S.F. had two broken bones in her arm that she had sustained three or four weeks prior to her death. He noted that they were complete fractures through the bone and that her arm would no longer appear straight. He further described the arm as appearing "floppy" and noted that it would have been swollen. Thus, he testified that the break would have been apparent to the naked eye and that her arm was unusable. Craig also testified that S.F. had an older rib fracture.
Dr. Liza Murray, a child-abuse pediatric expert at Arkansas Children's Hospital, testified that she reviewed the records related to S.F.’s death and that in her opinion, S.F. died from severe physical abuse. She did not believe S.F. could have sustained the injuries from a fall. She compared S.F.’s injuries to injuries someone would sustain from a rollover car accident, and she noted that S.F. would have appeared abnormal and that she would have expected a caregiver to immediately call emergency services. She also stated that S.F.’s older injuries, her broken arm and rib, were significant injuries and that S.F. would have been in visible pain. She believed that S.F. had lived in an abusive environment. She noted that the other children living in the home were at risk of abuse and that witnessing violence is traumatic on children, which can result in poor mental-health outcomes.
Officer Zachary Miller, a patrolman with the Springdale Police Department, testified that he responded to Veronica's apartment on the day of S.F.’s death. He stated that Veronica had reported to him that her son had pushed S.F. off the changing table. Maria Garcia, also a Springdale Police Department patrolman, testified that she also responded to Veronica's apartment on the day of S.F.’s death and that Veronica had reported to her that her son had pushed S.F. off the changing table and that the boy had also previously attempted to strangle S.F.
Stephanie Ruminer, the ICWA director for the Ponca Tribe of Oklahoma, testified that J.M. and R.M. are subject to the ICWA because their father, Wesley, is a tribal member. She stated that the children are currently in Wesley's custody and thus had been reunified with their Indian family. She stated that it was in the children's best interest to terminate Veronica's parental rights due to her inability to protect them from abuse. She opposed placing the children with Wesley and not terminating Veronica's rights because Veronica could request custody in the future.
Jennica Crockett, a DHS program assistant, testified that she had supervised a visitation among Veronica, Veronica's mother, J.M., and R.M. She stated that Veronica brought toys and snacks for the children. She noted, however, that Veronica had attempted to discuss inappropriate topics concerning the case in the presence of the children, and she further stated that Veronica had asked the children for their home address with their father on more than one occasion even after she told Veronica that the question was inappropriate. She also stated that Veronica seemed to be more interested in talking to her [Crockett] than interacting with the children. She further testified that Veronica had become angry when she [Crockett] told the children not to pretend they were killing their Play-Doh creatures. She stated that Veronica said there is nothing wrong with children playing like they are killing things.
Christine Vest, also a DHS program assistant, testified that she had supervised a visitation with Veronica, Veronica's mother, J.M., and R.M. She stated that Veronica's mother was more engaged with the boys than Veronica and that Veronica appeared to not know how to interact with them.
Alisha Steele, a former DHS employee, testified that she supervised five visits with Veronica, J.M., and R.M. She stated that Veronica was appropriate during the visits and that she paid for food and activities for the boys.
Maria Taylor, the DHS family service worker, testified that J.M. and R.M. have been living with Wesley and that they are doing relatively well. She noted that they attend counseling on a weekly basis but that J.M. had been having nightmares. Taylor testified that Veronica had reported to her that she had been living with Anderson so that she could obtain a confession for S.F.’s death. She further stated that Veronica had given inconsistent and unconvincing explanations for S.F.’s injuries. She also noted that Veronica had inappropriately discussed the case in the presence of J.M. and R.M. and that the children had to console her on some visits. She had concerns for J.M.’s and R.M.’s safety and welfare if the court did not terminate Veronica's parental rights.
Veronica's father, Homer Randall, testified that Veronica had continued her relationship with Anderson after S.F.’s death but that Anderson was holding her "hostage." He also testified that Veronica had stayed with Anderson in order to learn the truth about S.F.’s death. He stated that Veronica eventually asked him for help leaving Anderson. He explained that he contacted the Rogers Police Department and that they helped Veronica leave Anderson through welfare checks. Veronica's mother, Mary Randall, testified that she had no concerns with the children living with Veronica but that she had concerns with them living with Wesley because he had abandoned them.
Next, Wesley testified that J.M. and R.M. had been in his custody for ten months and that they were doing great. He stated that he works as a truck driver and that his wife cares for the children when he is away. He denied having abandoned Veronica and the children and explained that his job had prevented him from returning home for a significant period of time. He stated that when he eventually returned home, Veronica had left with J.M. and R.M. Wesley believed that if the court did not terminate Veronica's parental rights, she and her parents would try to obtain custody of the boys sometime in the future.
On November 8, the circuit court entered an order terminating Veronica's parental rights on four grounds pled in the petition. The court further found beyond a reasonable doubt that it was in the best interest of the children to terminate Veronica's parental rights and for the children to remain in their father's custody. The court noted that Veronica had taken no action to protect her children from the abuse that resulted in S.F.’s death and that she had failed to recognize her responsibility in S.F.’s death and its effect on J.M. and R.M. The court permanently placed J.M. and R.M. with Wesley. Veronica timely appealed the termination order to this court.
The court found it "alarming" that Veronica had not been criminally charged in relation to S.F.’s death.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a circuit court's decision to terminate parental rights only when it is clearly erroneous. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851 ; Ullom v. Ark. Dep't of Human Servs. , 340 Ark. 615, 12 S.W.3d 204 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Hopkins v. Ark. Dep't of Human Servs. , 79 Ark. App. 1, 83 S.W.3d 418 (2002).
For termination proceedings subject to the ICWA, the burden of proof is beyond a reasonable doubt. Ark. Code Ann. § 9-27-325(h)(3)(B)(2) (Supp. 2019); Wallace v. Ark. Dep't of Human Servs. , 2020 Ark. App. 67, 595 S.W.3d 396. The ICWA also prohibits termination of parental rights to an Indian child "in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f).
A termination order must be based on a finding that (1) at least one ground for termination exists and (2) 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. Ark. Code Ann. § 9-27-341(b)(3)(A), (B) ; Phillips v. Ark. Dep't of Human Servs. , 2019 Ark. App. 383, 585 S.W.3d 703.
On appeal, Veronica does not challenge the circuit court's finding on the grounds for termination. Instead, she argues that the circuit court erred by finding that it was in J.M.’s and R.M.’s best interest to terminate her parental rights. She asserts that termination of her parental rights was unnecessary because the least restrictive option of permanent placement with their father had been achieved, and adoption was not available. She further claims that there was no evidence that she had physically abused the children or posed a danger to them. She acknowledges that her relationship with Anderson led to her daughter's death and resulted in trauma to her sons, but she asserts that she has made significant progress since that time.
We hold that the circuit court did not clearly err in finding that termination of Veronica's parental rights was in J.M.’s and R.M.’s best interest. In Ross v. Arkansas Department of Human Services., 2010 Ark. App. 660, 378 S.W.3d 253, and Hayes v. Arkansas Department of Human Services., 2011 Ark. App. 21, 2011 WL 135198, we affirmed the termination of parental rights based on findings that the risk of harm to the children should they ever be returned to their fathers’ custody required termination, even absent a need for permanency. In Hayes , we explained that where a parent subjected his child to violence and abuse, termination of parental rights provides an irrevocable break from the abusive parent. Hayes, 2011 Ark. App. 21.
We find the circumstances here similar to those in Ross and Hayes . Even though Veronica did not directly and physically abuse the children, her failure to protect S.F. from Anderson's abuse resulted in S.F.’s death. Most significantly, S.F. suffered severe injuries prior to her death, but Veronica did nothing to stop that abuse. And she continued to expose J.M. and R.M. to the violent environment. Further, after S.F. died, Veronica returned to Anderson where she was subjected to more abuse. Even though she eventually ended the relationship, at the termination hearing, Veronica did not recognize her responsibility for S.F.’s death or for J.M.’s and R.M.’s exposure to the violence. The risk of potential harm weighs heavily in favor of terminating Veronica's parental rights. Accordingly, we cannot say that the circuit court clearly erred in finding that termination was in the children's best interest.
Affirmed.
Virden and Switzer, JJ., agree.