Morton v. Arkansas Department of Human Services , 2015 Ark. LEXIS 457 ( 2015 )

Cite as 2015 Ark. App. 388ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-15-154
Opinion Delivered June 17, 2015
BRITTANY MORTON APPEAL FROM THE WHITE
APPELLANT COUNTY CIRCUIT COURT
[NO. JV2013-243]
V.
HONORABLE ROBERT EDWARDS,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILDREN AFFIRMED
APPELLEES
BRANDON J. HARRISON, Judge
Brittany Morton appeals the White County Circuit Court’s decision to terminate
her parental rights to her children M.M., C.M., and D.M. Morton argues that clear-and-
convincing evidence does not support the termination grounds relied on by the circuit
court and that the court erred in finding that termination was in the children’s best
interest. We affirm the circuit court.
I. Case History
The Arkansas Department of Human Services (DHS) petitioned for emergency
custody of M.M., C.M., and D.M. in September 2013 after Morton and Hector Morales,
Morton’s partner, were arrested and charged with DWI/DUI and endangerment of the
welfare of a minor. The court adjudicated the children dependent-neglected in
November 2013 because “the parents were stopped down in Jacksonville, Arkansas,
allegedly doing 60 miles per hour in a 45 per hour zone; the child, D.M., was in the car
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Cite as 2015 Ark. App. 388looking dirty; the parents could not remember the last time the child was fed; the mother
was positive for methamphetamines, marijuana, and benzodiazepines . . . and there is a
true report on the family from 2008 for drug use causing inadequate supervision.” The
court noted in its April 2014 review order that Morton was “totally non-compliant with
the case plan” and was in the Cleburne County jail facing new felony charges. The court
also found that DHS had made “reasonable efforts” towards reunification. An October
2014 permanency-planning review order states that Morton was “not in compliance with
the case plan and orders of the court. [She] lives with family and friends, she is
unemployed, she has not completed substance abuse treatment; however, she does have a
mental health appointment in October, she did complete her psychological evaluation, she
did complete parenting, and she is testing clean from using controlled substances.” The
permanency-planning order also states that DHS had made reasonable efforts by providing
substance-abuse treatment, parenting classes, psychological evaluation, and counseling,
among other things.
DHS petitioned for termination of parental rights in October 2014, around the
same time the permanency-planning order was entered. It alleged that terminating
Morton’s parental rights was in the children’s best interest and that two statutory grounds
for termination existed under Arkansas Code Annotated sections 9-27-341(b)(3)(B)(i)(a)
(failure-to-remedy ground) and 9-27-341(b)(3)(B)(vii)(a) (other-factors-arising ground).
During the November 2014 termination hearing, DHS caseworker Darby Miller
testified that the department had past involvement with Morton and two of her children
in 2008. She explained that the children were removed because of Morton’s drug use and
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Cite as 2015 Ark. App. 388remained in foster care for two years; but the children were eventually returned to
Morton, and the 2008 case was closed.
Caseworker Miller said that she was concerned about the children returning to
Morton because, although Morton had attended a few NA meetings, she had not
completed a drug-abuse assessment or received drug counseling. Miller also testified that
Morton had no suitable housing, was only recently employed, and had not provided proof
of income. Miller said that the children were “very adoptable” and that the foster parents
were willing to adopt them and recommended that the court terminate Morton’s parental
rights because “it would be very detrimental to these children to return to her care.” This
was because Morton lacked adequate housing, income, and “no drug treatment to really
focus on the problem that started the case.” Miller could not think of any other service
that DHS could offer Morton that would help her reunite with the children.
On cross-examination by parent counsel, Miller again agreed that Morton had no
positive drug screens “for the last six months or so.” Miller acknowledged that Morton
had some difficulties getting the court-ordered drug assessment done because she did not
have any proof of income, which Morton needed to obtain through the Social Security
office. She also said that “it can be difficult to get [the assessment] done very quickly if
you wait to the last minute.”
On cross-examination by the attorney ad litem, Miller said that she was concerned
about Morton’s housing because Morton lived with her mother and “in the previous case
in 2008, there were concerns about [Morton’s mother’s] drug abuse and mental health.”
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Cite as 2015 Ark. App. 388When questioned by the court, Miller responded that Morton had reportedly
gotten a job at McDonald’s the week before the hearing and had attended case staffings
when she was not in jail.
A secondary caseworker from Cleburne County also testified—Lindsey Payton.
Payton was assigned to the case because Morton was currently living in Cleburne County
with her mother. Payton introduced pictures of Morton’s residence and concluded that
the home was not appropriate for children because it was “torn apart,” had an exposed
water heater, insulation was hanging from the ceiling, had a “very cold” bedroom, and
there were tools everywhere. Payton had not gone over the case plan with Morton, but
she had spoken to Morton about why she had not “gotten into substance abuse
treatment.” Morton reportedly told Payton that she “couldn’t afford to go over to the
Social Security Office and pay the $30.00” to show that she had no employment. Peyton
told the court that because Morton was working at McDonald’s, Morton could now show
proof of employment.
Morton testified too. Morton told the court that she had been incarcerated for
about six months during the case, that the outcome of her criminal case was a guilty plea
to possession of meth, and that she was sentenced to a period of probation. The
sentencing order in the record reflects that she was convicted of three separate charges.
One conviction was for possession with intent to deliver methamphetamine, and Morton
received five years’ probation. She admitted that the previous time her children were in
foster care, it was because of her drug use and that she had received drug treatment in the
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Cite as 2015 Ark. App. 388prior, closed case. Morton maintained that she had not received a referral for drug
treatment in the current case until two weeks before the hearing.
When questioned by the court about her history with DHS, Morton again
admitted that both times her children were removed, it was because of drug use. Morton
did not appear to take responsibility for her use of illegal drugs but instead blamed Hector
Morales because he “pushed” her to use drugs. She had separated from him for a year and
half after the first DHS case was closed, but reunited and had another child with him.
Morton told the court that Morales was in Mexico and that he had been deported after
serving time in jail.
Morton also testified that she had completed a psychological evaluation, had been
going to NA meetings, and had recently gotten a job at McDonald’s in Heber Springs
after putting in applications “everywhere” for months. Morton had also worked for a
brief time filling in for a Lisa’s Steakhouse employee for a few weeks during the summer.
In the end, Morton asked the court for “a little more time” to become an appropriate
parent. At no point did she request any additional services from the court or DHS.
The circuit court then called Caseworker Miller back to the stand to ask her a few
more questions in response to Morton’s testimony. Miller testified that she had referred
Morton to Wilbur Mills treatment facility in 2013, during the “early stages of the case,”
but that Morton had “failed to show up for the assessment.” A second referral occurred in
September or October 2014. Miller had received a letter from the Wilbur Mills facility
stating that both Morales and Morton failed to show up for the treatment assessment that
was scheduled for 12 December 2013.
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Cite as 2015 Ark. App. 388In its November 2014 termination order the court found that DHS had proved the
two statutory grounds alleged in its petition by clear and convincing evidence. The court
also found that a termination of Morton’s parental rights was in the children’s best interest,
that the children were likely to be adopted, and that they faced potential harm to their
health and safety if returned to her. Morton appealed.
II. Discussion
A circuit court’s order that terminates parental rights must be based on clear and
convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2011); Dinkins v. Ark.
Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing
evidence is that degree of proof that will produce in the fact-finder a firm conviction that
the allegation has been established. Pratt v. Ark. Dep’t of Human Servs., 2012 Ark. App.
399, 413 S.W.3d 261. Proof of only one statutory ground is sufficient to terminate
parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d
205.
We review termination-of-parental-rights cases de novo. Cheney v. Ark. Dep’t of
Human Servs., 2012 Ark. App. 209, 396 S.W.3d 272. But we will not reverse the circuit
court’s ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous
when, although there is evidence to support it, we are left with a definite and firm
conviction that a mistake has been made. Id. In determining whether a finding is clearly
erroneous, an appellate court gives due deference to the opportunity of the circuit court
to assess the witnesses’ credibility. Id.6
Cite as 2015 Ark. App. 388A. Statutory Ground
Morton argues that the court erred when it terminated her rights based on the
“failure to remedy” ground. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2011). This
ground provides that termination is appropriate if the court finds, by clear and convincing
evidence, that the juveniles have been adjudicated dependent-neglected and have
continued to be out of the parents’ custody for at least twelve months, and despite
meaningful efforts by DHS to rehabilitate the parents and correct the conditions that
caused removal, those conditions have not been remedied.
Morton does not dispute that the children were removed because of her drug use
and poor parenting. She argues that those issues had been remedied before the
termination hearing, citing her six-month sobriety, proof of NA meeting attendance,
completion of parenting classes, successful visitation, and recent employment as evidence.
She contends that her failure to obtain the drug-and-alcohol assessment was “not due to
an unwillingness on her part.” In Morton’s view, DHS just let her “sink or swim” when
it “was on notice and knew that lack of income would be a hindrance” to her obtaining
the assessment, and DHS did not refer her until the last minute. Morton also argues that
DHS should have provided financial assistance to help pay for the drug assessment and to
help her secure housing.
DHS responds that the circuit court’s failure-to-remedy finding was not clearly
erroneous given Morton’s prior drug use, which caused her neglect of the children and
lasted for several months even after the children had been taken from her custody, that she
was jailed for five months because of new felony drug charges, and that she never attended
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Cite as 2015 Ark. App. 388a drug assessment. Morton’s lack of a proper home and income, in DHS’s view, also
demonstrated a continued inability to parent and remedy the cause for removal.
We affirm the termination. The circuit court made prior reasonable-efforts
findings in this case, which were not appealed. So we will not review the court’s
reasonable-efforts findings regarding the time periods covered by the prior orders.
Anderson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 522, at 9, 385 S.W.3d 367, 372.
We only look at the time moving forward from the permanency-planning order, which
was entered about a month before the termination hearing. And the record shows that
Morton did not request financial assistance or other services from DHS during that time.
Nor did Morton specifically request additional services during the termination hearing; she
only asked for more time.
In its written order, the court credited Caseworker Miller’s testimony. Recall that
Miller testified that Morton had the opportunity to start addressing substance abuse issues
at the beginning of the case but chose to not attend her scheduled drug assessment. While
Morton testified that DHS had referred only Morales, not her, for the assessment, the
court credited Miller’s contrary testimony. And it is undisputed that Morton’s drug use
continued for several months after the children were removed, resulting in a felony drug
conviction during the pendency of the case.
The goal of section 9-27-341 is to provide permanency in a child’s life in
circumstances where returning the child to the family home is contrary to the child’s
health, safety, or welfare, and the evidence demonstrates that a return to the home cannot
be accomplished in a reasonable period of time as viewed from the child’s perspective.
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Cite as 2015 Ark. App. 388Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505(2007). A child’s need for permanency and stability may override a parent’s request for
more time to improve the parent’s circumstances. Dozier v. Ark. Dep’t of Human Servs.,
2010 Ark. App. 17, at 9, 372 S.W.3d 849, 854. Morton’s late-in-the-game attempts to
comply with the case plan after her release from jail in June 2014, and her request for
more time at the termination hearing, are insufficient reasons to reverse under our
caselaw. See Gutierrez v. Ark. Dep’t of Human Servs., 2012 Ark. App. 575, 424 S.W.3d 329(affirming on failure-to-remedy ground when drug use continued for several months
during the case); Loveday v. Ark. Dep’t of Human Servs., 2014 Ark. App. 282, 435 S.W.3d
504 (affirming on same ground when parent was jailed for new drug charges and did not
have safe and stable housing for children).
Because we affirm the court’s finding on the failure-to-remedy statutory ground,
and proof of only one statutory ground is sufficient to terminate parental rights, we need
not address the other statutory ground.
B. Best Interest
Morton also argues terminating her rights is not in the children’s best interest. She
denies that there was any evidence to show potential harm to the children because she was
complying with the case plan and demonstrating a “willingness and desire to have her
children home.” Morton contends that she has made progress and that her lack of drug
treatment and appropriate housing was not due to an unwillingness or inability on her
part, but was, in fact, due to DHS’s failure to provide services. She argues that DHS
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Cite as 2015 Ark. App. 388demonstrated no risk of potential harm, so it could not be in her children’s best interest
for her rights to be terminated.
In its order, the court wrote:
The Court finds by clear and convincing evidence that it is in the
best interest of the juveniles to terminate parental rights. In making this
finding, the court specifically considered (A) the likelihood that the juveniles
will be adopted if the termination petition is granted, specifically the
testimony of Darby Miller who stated the children are likely to be adopted
by the foster parents if parental rights are terminated; and (B) the potential
harm on the health and safety of the juveniles caused by returning the
juveniles to the custody of the parents. The fact the mother does not even
have a home of her own to live in and is living with her parents and the
home is not suitable for the children to live in demonstrates how the
juveniles would be at risk of potential harm if returned to the parent. Even
though the mother is currently testing clean from use of controlled
substances, she was jailed during the course of this case for felony drug
charges among other items and she is still not in drug treatment now that we
are fourteen months into this case. The mother has been through the
system before in a 2008 case due to drug use as well. It is time to achieve
permanency for the children.
We hold that the court’s best-interest finding is not clearly erroneous. A court may
consider past behavior as a predictor of likely potential harm should the child be returned
to the parent’s care and custody. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App.
715, at 3, 451 S.W.3d 231, 233. The harm referred to in the termination statute is
“potential” harm; the circuit court is not required to find that actual harm would result or
to affirmatively identify a potential harm. L.W. v. Ark. Dep’t of Human Servs., 2011 Ark.
App. 44, 380 S.W.3d 489. The potential-harm evidence, moreover, must be viewed in a
forward-looking manner and considered in broad terms. Id. Morton’s continued use of
illegal drugs for years is sufficient evidence of potential harm. The court’s best-interest
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Cite as 2015 Ark. App. 388determination is largely a credibility call, and we defer to its assessment of Morton’s
credibility.
III. Conclusion
We affirm the circuit court’s termination of Morton’s parental rights.
Affirmed.
KINARD and GLOVER, JJ., agree.
Dusti Standridge, for appellant.
Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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