Nitsa Gascot v. Arkansas Department of Human Services and Minor Children , 2022 Ark. App. 57 ( 2022 )

Cite as 2022 Ark. App. 57ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-21-411
NITSA GASCOT Opinion Delivered February 9, 2022
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72JV-20-25]
ARKANSAS DEPARTMENT OF HONORABLE STACEY A.
HUMAN SERVICES AND MINOR ZIMMERMAN, JUDGE
CHILDREN
APPELLEES AFFIRMED
RAYMOND R. ABRAMSON, Judge
Nitsa Gascot appeals the June 1, 2021 Washington County Circuit Court order
terminating her parental rights to her minor children, N.G. (DOB: 04-21-17) and E.G.-B
(DOB: 02-11-19). On appeal, Gascot argues that the evidence is not sufficient to prove
statutory grounds or that termination of her parental rights was in the children’s best
interest. For the following reasons, we affirm.
This case began when the Arkansas Department of Human Services (DHS) removed
N.G. and E.G.-B from Gascot’s legal and physical custody on January 7, 2020, due to
allegations of failure to supervise, hazardous living conditions, and failure to protect.
The conditions that caused removal began when the Springdale Police Department
contacted DHS on January 7, 2020, and reported that N.G., who was less than three years
old at the time, and eleven-month-old E.G.-B had been found unattended at the home. The
building manager found the children locked in a back bedroom when the manager entered
the apartment to perform pest control. Extensive amounts of trash were in the apartment,
the room the children were locked in contained a half-full bathtub and another container of
water, and the floor was soiled with urine. The manager said the children appeared to be
hungry, so she fed N.G. Cheetos and she gave E.G.-B some baby food that she found in the
cabinet. She further stated that she could find only one baby bottle, and it was caked with
old milk.
Caseworkers could not find clothes for the children that were not soaked with urine.
When Gascot appeared, the police officers arrested her for endangering the welfare of
minors. On February 27, Gascot stipulated to the finding of dependency-neglect for both
children: specifically, the children were locked in a bedroom and were left alone at home
without proper supervision. The children had access to a bathtub filled with water, and the
environmental conditions were unsafe for the children. The home was not safe and
appropriate, and there was no legal caretaker for the children because Gascot had been
arrested.
The circuit court set concurrent goals of reunification and adoption and ordered
Gascot to cooperate with DHS, keep DHS informed of her whereabouts, participate in
counseling, refrain from using drugs and alcohol, submit to random drug screens, obtain
and maintain stable housing and employment, maintain a safe and clean home, and
demonstrate an ability to protect the children from harm. In a review hearing on June 25,
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the court found that Gascot was in partial compliance with the case plan. While she was
visiting with the children, maintaining contact, and attending counseling, she did not have
stable housing or employment. The court changed the goal of the case to termination of
parental rights and adoption at a permanency-planning hearing on November 19.
The court made the following findings in support of the goal change:
The mother has not complied with all of the court orders and the case plan.
Specifically, the mother does not have stable housing and has not maintained stable
employment. The testimony today is clear that mother quit counseling for 3–4
months, as the mother testified that she did not give her new phone number to the
counselor. The mother is credible when she says she loves her children. However, the
Court does not believe that she can meet the children’s basic needs, nor her own
needs, including her own mental health needs. The mother has been distraught
throughout the hearing, and has been unable to control her emotions, and that is
something that counseling would have helped her with. The mother does not have
the skills to meet these children’s needs. The testimony today is that the mother chose
to move out of this area because housing is cheaper, yet she drives to Fayetteville for
work. The testimony is that she has missed visits because her car conked out. The
testimony is also that the mother requested to have Zoom visits with the children, in
lieu of in-person visits. The Court finds that it is terrible to request Zoom visits,
instead of in-person visits. Further, the testimony of Ms. Oliver is that when the
mother does have Zoom visits, she does not focus on the children and that on one
occasion the mother was walking down the aisles at Lowe’s and not paying attention
to the children during the video visit. Also, Ms. Oliver testified that if [N.G.] is unable
to attend a visit, the mother forgoes her visit with [E.G.-B]. The mother has not made
measurable, sustainable, and genuine progress towards alleviating or mitigating the
causes of the juveniles’ removal from the home and/or completing the court orders
and requirements of the case plan.
On April 1, 2021, the court held another permanency-planning hearing and
reiterated the sole goal of adoption. The court made findings similar to those in its
November 19, 2020 order:
It is good that the mother has a home, but the Court does not find that the mother
makes enough money to meet the children’s basic needs. The mother has no daycare
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plan in place for the children. The mother does not have a safe and appropriate plan,
and that is not just because the children are not on a daycare waiting list. The mother
works in Northwest Arkansas and lives in Fort Smith. The court has no confidence
that the children would be safe with the mother today.
On April 29, 2021, approximately fifteen months after the children’s removal, the
circuit court held a termination-of-parental-rights hearing.1 Rashonda Graham, a DHS
caseworker, testified that she had not heard from Gascot since the last court hearing.
Graham had no information as to whether Gascot’s income had changed. Graham testified
that DHS still believed Gascot needed support and assistance in order to take care of the
children. Graham was aware that Gascot lived in Fort Smith and worked in Springdale but
did not know Gascot’s work schedule. Graham testified that Gascot had stable housing, was
participating in counseling again, and had passed all drug screens. Graham replied no when
asked if she had any concerns about Gascot’s living in Fort Smith but working in Springdale.
Graham further testified that the children are adoptable and that they would be subjected
to physical and emotional harm if returned to Gascot. Graham also testified that Gascot had
never been able to reach a point where unsupervised visitation was possible.
Gascot testified at the hearing. She stated that she had put the children on a waiting
list for day care the day before the termination hearing. She testified the day-care worker told
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In both DHS’s petition for termination of parental rights and the attorney ad litem’s
petition for termination of parental rights, it is noted that no putative parents have come
forward to establish significant contacts with the children such that parental rights would
attach. The termination order states, “This Court previously found that no putative fathers
have come forward to establish paternity as to the juvenile, or otherwise demonstrate that
they have significant contacts with the juvenile, and that putative rights have NOT attached.”
Therefore, the mother is the children’s only parent.
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her it would be “two weeks” for N.G. and E.G.-B to be placed in day care. Gascot testified
that she works in Springdale from 7:00 a.m. to 3:00 p.m. and that it takes her forty-five
minutes to commute. Gascot testified that she earns $1,500 a month after taxes, her rent is
$720 a month, her car payment is $90 a week, and her family helps her with other expenses.
Gascot claimed her brother and sister-in-law would take care of the children if she had no
day care. When asked why she believes her rights should not be terminated, her only
response was that “they need to be with . . . their biological mother. Nobody understands
this the way I do.”
Gascot testified that she had recently been arrested for failing to appear in her
criminal case and was paying $100 every two weeks in fines. Gascot requested Zoom visits in
lieu of in-person visits because of her work commute. Gascot admitted her children were
removed because she left them alone to go to work. Gascot again claimed that even though
she was still alone, her brother was “moving to Fayetteville” and would be able to help her
this time. Gascot claimed “everyone makes mistakes,” and “I won’t do those things
anymore.” At the conclusion of the hearing, the circuit court terminated Gascot’s parental
rights. Her timely appeal is now properly before our court.
Our standard of review in termination-of-parental-rights cases is well settled; we review
these cases de novo. Dinkins v. Ark. Dep’t of Hum. Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
Termination of parental rights is an extreme remedy and in derogation of the natural rights
of parents; however, parental rights will not be enforced to the detriment or destruction of
the health and well-being of the child. Smithee v. Ark. Dep’t of Hum. Servs., 2015 Ark. 506,
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471 S.W.3d 227. A court must find that at least one statutory ground exists 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 (Supp. 2021). Clear and
convincing evidence is that degree of proof that will produce in the fact-finder a firm
conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633,
839 S.W.2d 196 (1992).
The appellate inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Hum. Servs.,
329 Ark. 243, 947 S.W.2d 761 (1997). In determining whether a finding is clearly erroneous,
we give due deference to the opportunity of the circuit court to judge the credibility of
witnesses. Dinkins, supra.In making a “best interest” determination, the circuit court is required to consider
two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to
the child if custody is returned to a parent. Pine v. Ark. Dep’t of Hum. Servs., 2010 Ark. App.
781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor that the
circuit court must consider. Tucker v. Ark. Dep’t of Hum. Servs., 2011 Ark. App. 430, 389
S.W.3d 1. Similarly, the potential harm to the child is a factor to be considered, but a specific
potential harm does not have to be identified or proved by clear and convincing evidence.
Pine, supra. The potential-harm analysis is to be conducted in broad terms. Id. It is the “best
interest” finding that must be supported by clear and convincing evidence. Id.6
On appeal, Gascot argues that the evidence is insufficient to support either of the two
statutory grounds found by the circuit court: the “failure to remedy” ground codified at
Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) and the “subsequent factors”
ground codified at Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). Gascot’s
challenges are essentially requests for our court to reevaluate and reweigh the evidence and
arrive at an outcome different from that of the circuit court. It is well settled that our court
will not reweigh the quality of the evidence or credibility of witnesses. Chaffin, 2015 Ark.
App. 522, at 3, 471 S.W.3d 251, 254.
The evidence is clear and convincing that Gascot failed to remedy the conditions that
caused removal—specifically, her failure to protect and adequately supervise the children.
The crux of Gascot’s argument on appeal is that her rights were terminated due solely to
abstract generalizations about her poor judgment or poor choices. We disagree.
Gascot’s rights were terminated because she left her children alone in a dangerous
environment so she could go to work, and after fifteen months of services, she still had not
demonstrated that she could appropriately balance her work and family life in a way that did
not endanger her children. The foregoing facts are clear and convincing evidence that Gascot
failed to remedy the conditions that caused the children’s removal: inadequate supervision
and failure to protect.
Again, Gascot’s argument is an attempt to recharacterize and rearrange the credibility
and weight determinations of the circuit court. When reviewing conflicting testimony,
however, the appellate court leaves credibility determinations to the circuit court and will
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not substitute its judgment for that of the fact-finder to reach a different outcome. Arazola v.
Ark. Dep’t of Hum. Servs., 2019 Ark. App. 109, at 13, 573 S.W.3d 35, 42.
In this case, after fifteen months of services, Gascot still had not demonstrated that
she could prioritize the children’s safety and caretaking over her own personal choices. The
condition that caused removal was Gascot’s leaving her children unattended in dangerous
conditions so she could go to work. Eleven months after removal, the court stated
unambiguously, “[T]he court has no confidence that the children would be safe with the
mother today.”
At the termination hearing, after fifteen months of services, the court learned that
Gascot had put her children on a day-care wait list only the day before the termination
hearing. Gascot’s lifestyle was still tremendously unstable at the time of termination. Gascot’s
income was inadequate to absorb the extra costs of having two children suddenly returned
to her, and she was dependent on the graces of others for financial support. Gascot was still
prioritizing her own choices above the safety and welfare of her children as demonstrated by
her insistence on working in Fayetteville while living in Fort Smith and especially by her
insistence on Zoom visitations simply to accommodate her work schedule.
Gascot also failed to appear for her criminal proceedings during the case and incurred
even more financial obligations due to those poor choices. At the end of the case, Gascot
was in the same position she was in at the beginning: prioritizing her own needs over those
of her children. The court had no assurance that Gascot would not again leave the children
in dangerous circumstances due to her unstable lifestyle. Because only one statutory ground
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is needed, we affirm the termination of Gascot’s parental rights on this ground alone. See
Barnes v. Ark. Dep’t of Hum. Servs., 2016 Ark. App. 618, 508 S.W.3d 917.
Gascot relies heavily on Guthrey v. Arkansas Department of Human Services, 2017 Ark.
App. 19, 510 S.W.3d 793. However, Guthrey is readily distinguishable. In Guthrey, the fatal
flaw was that the circuit court framed the very conditions that caused removal as Guthrey’s
“poor judgment.” Id. at 7–8, 510 S.W.3d at 797–98. After identifying “poor judgment” as a
basis for removal, the court did not cite any evidence beyond Guthrey’s dishonesty and
evasiveness to support a conclusion that Guthrey did not remedy the conditions that caused
removal. Id. at 8–9, 510 S.W.3d at 798.
In this case, however, the court framed the conditions that caused removal quite
clearly: failure to protect; inadequate supervision; and environmental hazards. When the
court terminated Gascot’s rights, it found, among other things, the following:
Today, this case is not just about daycare. It’s about mom’s choices and her poor
judgment. It’s about mom’s ability to demonstrate she can meet her children’s basic
needs and keep them safe from harm. She doesn’t have a spot today for daycare for
her kids lined up. She says that she has her brother, who can keep the children and
they’re moving to Fayetteville from Rogers. But how can I trust mom’s testimony
today when I don’t believe that she’s been credible in her testimony? . . . It’s clear to
me that mom continues to make choices that have led to her arrest. I don’t think she
thinks this situation with her kids coming into care was a big deal. It was just a
mistake, she says.
The circuit court’s use of the term “poor choices” was not a generalized or abstract
statement based on something such as overall evasiveness as it was Guthrey. Here, Gascot’s
poor choices directly related to conditions that caused removal—her leaving the children
unattended so that she could attend to her own desires and needs.
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Gascot also cites Duncan v. Arkansas Department of Human Services, 2014 Ark. App.
489, in support of her appellate arguments. Duncan was reversed, in part, because our court
held that Duncan’s record of improvement established that she had remedied the conditions
that caused removal—environmental neglect and domestic violence. Id. at 8. In Duncan, there
was evidence that the mother had been paying her bills, had adequate food, and had been
progressing in therapy on the domestic-violence issues. Id. at 8–9.
In the instant case, however, the only evidence of any effort to remedy the
circumstances that caused the removal of Gascot’s children was her placement of her
children on a day-care waiting list one day before the termination hearing—after fifteen
months of services. A child’s need for permanency and stability will override a parent’s
eleventh-hour efforts to stave off termination. Sharks v. Ark. Dep’t of Hum. Servs., 2016 Ark.
App. 435, at 13, 502 S.W.3d 569, 578. Here, despite being aware for fifteen months that the
circuit court’s primary concern was her failure to protect and adequately supervise her
children and her inability to arrange her work schedule in such a way as to not jeopardize
their safety, Gascot did nothing until the day before the termination hearing to remedy this
circumstance. And even then, it was still unclear when and if Gascot would be in a position
to safely care for the children.
On the basis of the record before us, the evidence is clear and convincing that Gascot
did not remedy the circumstances that caused removal—inadequate supervision and failure
to protect—despite fifteen months of services from DHS. Gascot made no complaints during
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the case regarding a lack of any services. Gascot waited until the day before the termination
hearing before even taking a first step to obtain proper child care.
Arkansas law requires that a decision to terminate parental rights be grounded in an
evaluation of the child’s best interest. Arkansas Code Annotated section 9-27-341(b)(3)(A)
provides that a court may enter an order terminating parental rights if it finds by clear and
convincing evidence that it is in the best interest of the child. The best-interest determination
includes consideration of the evidence supporting the specific grounds for termination.
Camarillo-Cox v. Ark. Dep’t of Hum. Servs., 360 Ark. 340, 201 S.W.3d 391 (2005).
The best-interest standard also includes consideration of the following two factors:
(1) the child’s likelihood of adoption; and (2) the potential for harm from returning the
children to the parents’ custody. Ark. Code Ann. § 9-27-341(b)(3). These are not exclusive
factors. There is no requirement that every factor considered be established by clear and
convincing evidence; rather, after consideration of all factors, the evidence must be clear and
convincing that the termination is in the best interest of the child. McFarland v. Ark. Dep’t of
Hum. Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005).
There is also no requirement to identify the specific potential harm. In deciding
whether to terminate parental rights, the circuit court has a duty to look at the case as a
whole and ascertain how the parent has discharged his parental duties, whether the parent
poses a substantial risk of serious harm, and whether the parent is unfit. In re Adoption of
K.M.C., 62 Ark. App. 95, 969 S.W.2d 197 (1998). The court’s statutory-grounds findings are
evidence relevant to the potential harm that the children would face if returned to Gascot’s
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custody. Taylor v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 264, at 12 (finding that the same
evidence that supported statutory grounds supported the potential-harm prong of the best-
interest finding). Here, the potential harm Gascot posed to the children was clear: because
Gascot waited until one day prior to the termination hearing to even put the children on a
day-care waiting list and because of her unstable lifestyle and commute, the children would
potentially end up in the same situation as at the beginning of the case—unattended, soaked
in urine, and subject to a dangerous environment such as a bathtub full of water.
These findings were based on the court’s observation of Gascot over fifteen months
and how she took no action to remedy the two things that created the conditions that caused
removal: her unstable lifestyle and her inability to obtain proper child care to accommodate
her work schedule. The past actions of a parent over a meaningful period of time are good
indicators of what the future may hold. Sharks, supra.
Finally, Gascot’s attempt to cloud the issue by introducing a relative named in a
CASA report—the paternal grandmother—is not well-taken. There is no indication in this
record that this relative was ever considered for permanent placement in lieu of termination,
and if so, Gascot never appealed any of the permanency-planning orders that set adoption
as the sole goal of the case. Clark v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 223, at 4–5,
575 S.W.3d 578, 581 (finding that mother was not required to appeal permanency-planning
order to preserve a relative-placement issue because the goals in the permanency-planning
order were concurrent). Further, as noted previously, the circuit court found in both the
order entered after the permanency-planning hearing and the order terminating Gascot’s
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parental rights that the putative fathers in this case, Darwin Irizarry and Gregory Brown, had
not presented evidence that either had established significant contacts with N.G. or E.G.-B;
therefore, putative parental rights never attached. As such, the paternal grandmother could
not be considered a relative for placement purposes.
Here, the potential harm “weighs very heavily. . . in terminating appellant’s parental
rights.” Hayes v. Ark. Dep’t of Hum. Servs., 2011 Ark. App. 21, at 5–6. It was obvious that
Gascot took no action to remedy the core issue in this case—leaving her children unattended
while she commuted to jobs in other cities—until the day before the termination hearing,
and even so, it was not clear if Gascot had obtained the stability in her life to have the
children returned without exposing them to more potential harm. Thus, as a result of
Gascot’s incapacity to remedy the issues that led to the adjudication of dependency-neglect,
this is not a case in which the circuit court should have leaned toward less restrictive
alternatives to termination of Gascot’s parental rights.
There was no clear error in the circuit court’s decision that adoption and termination
of parental rights was the appropriate outcome for these children, and there are no grounds
for a “firm conviction” that the circuit court made a mistake in terminating Gascot’s parental
rights. Accordingly, we affirm.
Affirmed.
BARRETT and BROWN, JJ., agree.
Dusti Standridge, for appellant.
Andrew Firth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
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Dana McClain, attorney ad litem for minor children.
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