McNeer v. Arkansas Department of Human Services , 2017 Ark. App. LEXIS 587 ( 2017 )

Cite as 2017 Ark. App. 512
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-313
JOHNA McNEER Opinion Delivered October 4, 2017
APPELLANT
APPEAL FROM THE CLARK
V. COUNTY CIRCUIT COURT
[NO. 10JV-15-28]
ARKANSAS DEPARTMENT OF HONORABLE ROBERT E.
HUMAN SERVICES and MINOR McCALLUM, JUDGE
CHILDREN
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Johna McNeer appeals from the decision of the Clark County Circuit Court
to terminate her parental rights to her twin children, M.T.M.1 and M.T.M.2 (d/o/b
3/22/07). On appeal, she does not contest the circuit court’s finding that sufficient statutory
grounds supported the termination. Instead, she challenges the best-interest prong, arguing
that there was insufficient proof regarding the adoptability of the children and the potential
harm they faced if returned to her custody. For the reasons set forth below, we affirm.
I. Background
The Arkansas Department of Human Services (DHS) has a significant history with
McNeer and her twin children. DHS opened a preventive-services case when the children
were born with cocaine in their systems. DHS later filed a petition for emergency custody and
for a finding of dependency-neglect in April 2015, alleging neglect and parental unfitness.
Cite as 2017 Ark. App. 512
McNeer had been involved in a hit-and-run accident and was being placed under arrest when
officers found possible cocaine in her car within reach of the children. McNeer also had a
warrant out of Little Rock and another out of Searcy. McNeer refused to take a drug screen
for DHS but admitted that she would be positive for marijuana and crack cocaine. Because
McNeer had no family who could take the twins, DHS took custody of the children.
The children were subsequently adjudicated dependent-neglected due to neglect and
parental unfitness. Specifically, the court found that McNeer had used cocaine immediately
prior to the removal of the children and had left cocaine within reach of the children.
McNeer stipulated to these findings. The court set the goal of the case as reunification and
directed DHS to develop a case plan.
In June 2015, the circuit court entered an order returning custody of the children to
McNeer. In July 2015 and October 2015, the court entered review orders continuing custody
with McNeer, finding that she had substantially complied with the case plan and that she had
completed a drug-treatment program. The return of custody, however, was short lived. In
November 2015, DHS filed another motion for ex parte emergency change of custody. The
affidavit accompanying this motion noted that since the children had been returned to
McNeer’s custody in June, McNeer had experienced some mental-health problems that
necessitated treatment at a dual-diagnosis treatment facility. McNeer was released from
treatment in September with a plan to complete three drug screens per week and attend a
twelve-step program. Despite that plan, McNeer attended only two drug screens in the week
after she had been discharged and one the following week, and she failed to appear for any
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other drug screens after that time. In addition, McNeer failed to meet with DHS staff despite
repeated requests that she do so, and her children missed multiple days of school after she had
been discharged from treatment. When DHS was finally able to contact her, McNeer texted
her caseworker to say that she was going to give custody of her children to an aunt in
Mississippi.
The court once more adjudicated the children dependent-neglected in March 2016
due to neglect and parental unfitness as a result of McNeer’s drug use.1 The goal of the case
remained reunification at that time. By the time of an August 2016 review order, however,
the court found that the case plan was not moving toward an appropriate permanency plan
for the children. The court found that McNeer had not complied with the case plan because
she had been incarcerated since March 2016. Following a permanency-planning hearing in
September 2016, the court changed the goal of the case to adoption and authorized DHS to
file a petition for termination of parental rights. In its order, the court noted that McNeer was
serving a four-year prison sentence related to a revocation of her probation stemming from
the March 2015 hit-and-run accident and her guilty plea to possession of drugs and drug
paraphernalia.
1
McNeer stipulated to the facts contained in the affidavit of probable cause; in
addition, she admitted to using drugs after her children had been removed from her custody
in November.
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DHS subsequently filed a petition for termination of McNeer’s parental rights alleging
four statutory grounds for termination2 and that termination was in the best interest of the
children. After a hearing, the circuit court entered an order terminating McNeer’s parental
rights, specifically finding that the termination was in the best interest of the children.
McNeer filed a timely notice of appeal and now argues to this court that the circuit
court erred in finding that termination was in the children’s best interest. Specifically, McNeer
argues that there was a “complete lack of evidence . . . establishing the adoptability of the
children” and that the evidence was insufficient to show that returning the children to her
posed a risk of potential harm.
II. Standard of Review
The rights of natural parents are not to be passed over lightly. The termination of
parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox
v. Ark. Dep’t of Human Servs., 2014 Ark. App. 666, 448 S.W.3d 735. As a result, there is a
heavy burden placed on the party seeking to terminate the relationship. Id. The termination
of parental rights is a two-step process that requires the circuit court to find that the parent
is unfit and that termination is in the best interest of the child. T.J. v. Ark. Dep’t of Human
Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Smith v. Ark. Dep’t of Human Servs., 2013 Ark.
App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory
grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2015). The second step
2
Because McNeer does not challenge the statutory grounds on which the circuit court
found termination to be appropriate, the specific grounds pled are not enumerated herein for
the sake of brevity.
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requires consideration of whether the termination of parental rights is in the children’s best
interest. Ark. Code Ann. § 9-27-341(b)(3)(A).
The appellate court reviews termination-of-parental-rights cases de novo but will not
reverse the circuit court’s ruling unless its findings are clearly erroneous. Dade v. Ark. Dep’t
of Human Servs., 2016 Ark. App. 443, 503 S.W.3d 96. 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. Id. In determining whether
a finding is clearly erroneous, we have noted that in matters involving the welfare of young
children, we will give great weight to the circuit judge’s personal observations. Jackson v. Ark.
Dep’t of Human Servs., 2016 Ark. App. 440, 503 S.W.3d 122.
III. Adoptability
A circuit court may terminate a parent’s rights only if it finds by clear and convincing
evidence that it is in the best interest of the juvenile. Clear and convincing evidence is the
degree of proof that will produce in the fact-finder a firm conviction regarding the allegation
sought to be established. Fox, supra. The court determines whether termination is in the
juvenile’s best interest by considering two factors: (1) the likelihood that the juvenile will be
adopted if parental rights are terminated and (2) the potential harm caused by continuing
contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)–(ii).
In her first argument on appeal, McNeer asserts that no evidence was introduced at the
termination hearing to establish the adoptability of the children. Here, McNeer argues that
“the plain language” of section 9-27-341(b)(3)(A)(i) makes consideration of the likelihood
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that the children will be adopted “mandatory.” It is true that our court has interpreted the
statute as having that meaning. See Lively v. Ark. Dep’t of Human Servs., 2015 Ark. App. 131,
at 5, 456 S.W3.d 383, 387 (citing Haynes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 28).
The statute does mandate that the circuit court “consider” the likelihood of adoptability. The
statute does not, however, mandate that the circuit court make a specific finding that the
children are adoptable, nor must the court find the children are “likely” to be adoptable. The
statute only mandates the “consideration” of the likelihood of adoptability.
We have held that adoptability is “but one factor that is considered when making a best-
interest determination.” Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, at 6, 385
S.W.3d 285, 288 (emphasis in original) (citing McFarland v. Ark. Dep’t of Human Servs., 91
Ark. App. 323, 210 S.W.3d 143 (2005)). To that end, we have held that adoptability “is not
an essential element in a termination case.” Tucker v. Ark. Dep’t of Human Servs., 2011 Ark.
App. 430, at 7, 389 S.W.3d 1, 4; see also Smith v. Ark. Dep’t of Human Servs., 2017 Ark. App.
368, at 8, 523 S.W.3d 920, ___ (stating that termination requires that the circuit court
consider the likelihood of adoption but that the factor does not require that adoptability be
proved by clear and convincing evidence); Singleton v. Ark. Dep’t of Human Servs., 2015 Ark.
App. 455, at 6, 468 S.W.3d 809, 813 (noting that adoptability is not an essential element of
proof). Rather, it is the “best interest” finding that must be supported by clear and convincing
evidence. Salazar v. Ark. Dep’t of Human Servs., 2017 Ark. App. 218, at 14, 518 S.W.3d 713,
722. With these standards in mind, we will now consider the evidence concerning the factor
of adoptability before the circuit court in conjunction with McNeer’s arguments.
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Here, McNeer argues that no evidence of the adoptability of the children was
introduced at the termination hearing and that several cases from this court support a reversal
of the circuit court’s adoptability findings. We disagree with both contentions.
McNeer’s assertion that no evidence of adoptability was introduced at the termination
hearing is factually inaccurate. The court heard from two witnesses—DHS caseworker Patrice
Judd and CASA volunteer Meredith Bell—concerning adoptability. In addition, the court
received a court report prepared by DHS as well as a CASA report, both of which contained
evidence of adoptability. Specifically, the CASA report reflected that McNeer’s cousin, Sonya
Powell, had requested a home study to be conducted and had stated that she and her family
were interested in adopting the children. The court considered evidence of the children’s
foster placement, their need for stability, and the interest of a relative in possible adoption.
Thus, there was evidence before the circuit court on which it could base its consideration of
the adoptability of the children, and we are unable to say that the court’s finding was clearly
erroneous. We therefore cannot agree with McNeer that DHS “failed to introduce any
evidence of the adoptability of the children.” (Emphasis in original.)
We also do not agree with McNeer that previous decisions of this court compel
reversal. With respect to the degree and nature of the evidence necessary on the issue of
adoptability, we have held that consideration of this factor requires evidence, or at least some
finding by the circuit court that other aspects of the best-interest analysis so favor termination
that the absence of proof on adoptability makes no legal difference. Haynes v. Ark. Dep’t of
Human Servs., 2010 Ark. App. 28, at 4. Likewise, we have explained that DHS is not required
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to provide the names of specific adoptive parents for the children or even provide evidence
that it has identified such persons at the termination hearing. Canada v. Ark. Dep’t of Human
Servs., 2017 Ark. App. 476, at 5; Singleton, 2015 Ark. App. 455, at 6, 468 S.W.3d at 813. In
short, we have held that neither the statute nor our case law requires a specific quantum of
evidence in the consideration of the likelihood of adoption. See Renfro, supra.
We find each citation offered by McNeer to be distinguishable from the facts of this
case. For example, McNeer’s citation to Grant v. Arkansas Department of Human Services, 2010
Ark. App. 636, 378 S.W.3d 227, is inapposite. Grant dealt with the inadequate nature of the
evidence of adoptability. Here, McNeer argues the total lack of evidence concerning
adoptability, not the inadequacy of the evidence that was presented. We thus find the
situation in Grant to be inapplicable and not controlling on these facts.
McNeer also cites cases in which we reversed a circuit court’s best-interest finding
when there was no evidence of adoptability presented to the trier of fact. See Haynes, supra;
Kerr v. Ark. Dep’t of Human Servs., 2016 Ark. App. 271, 493 S.W.3d 342; Brown v. Ark. Dep’t
of Human Servs., 2015 Ark. App. 725, 478 S.W.3d 272. In Kerr, although the circuit court’s
order stated that it understood that the foster parents had expressed an interest in adopting the
children, there was no evidence introduced at the hearing to support that finding. Instead, the
only evidence on adoptability was the child’s testimony that she wished to be adopted. 2016
Ark. App. 271, at 8, 493 S.W.3d at 347. In Haynes, this court held that not only did the
record show no consideration by the circuit court of adoptability as part of its best-interest
analysis, there had been no evidence of adoptability introduced at the termination hearing.
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As previously discussed, the facts of this case are decidedly different. Here, the court did have
evidence of adoptability introduced at the termination hearing. Thus, McNeer fails to provide
convincing authority that the circuit court erred in its adoptability determination.
IV. Potential Harm
In her second point, McNeer argues that the circuit court erred in finding that
returning the children to her presented a risk of potential harm. She contends that the
evidence showed that she and her children were closely bonded and shared a loving and
positive relationship. She points to the testimony of the children’s therapist, who
recommended that even if McNeer’s parental rights were terminated, she should still be
allowed the possibility of visitation in the future. Although she acknowledges her history of
drug abuse, she nonetheless takes the position that the evidence was insufficient to show that
termination was in the children’s best interest.
In considering potential harm caused by returning the child to the parent, the trial
court is not required to find that actual harm would result or affirmatively identify a potential
harm. Gulley v. Ark. Dep’t of Human Servs., 2016 Ark. App. 367, 498 S.W.3d 754; Welch v.
Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be
viewed in a forward-looking manner and in broad terms, including the harm the child suffers
from the lack of stability the child receives in a permanent home. Collins v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 90. This court has consistently noted that continuing drug use
demonstrates potential harm to children. See Eldredge v. Ark. Dep’t of Human Servs., 2014 Ark.
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App. 385; Davis v. Ark. Dep’t of Human Servs., 2009 Ark. App. 815, 370 S.W.3d 283; Carroll
v. Ark. Dep’t of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780 (2004).
Here, there was evidence of both McNeer’s ongoing drug use and the harm caused by
the lack of stability. CASA Director Stephanie Hrabal spoke to both issues when she testified
that the specific harm that would result to the children in the event of reunification would
come from McNeer’s “very strong” drug addiction and her lack of stability throughout the
case; she opined that the children would not have a stable environment if they were reunified
with their mother. Hrabal acknowledged that there was definitely a bond between the
children and McNeer and that the children “have always appeared to love their mother.”
Despite that, Hrabal expressed concern that McNeer had told her that she had been in and
out of “ten to fifteen different rehabs across the country over the past . . . fifteen, twenty
years.”
Likewise, the children’s therapist, Heather Story, noted that both children had
expressed to her that “they would be best in a different home” and that they were “ready for
some resolution and closure.” CASA volunteer Bell testified that the children had “so much
anxiety from not knowing what’s going to happen, where they’re going to go, where they’re
going to be, who they’re going to be with.” Additionally, McNeer was incarcerated at the
time of the termination hearing, and it was unclear exactly when she was going to be released.
As noted above, 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.
Jackson v. Ark. Dep’t of Human Servs., 2016 Ark. App. 440, 503 S.W.3d 122; Pine v. Ark. Dep’t
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of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. We therefore conclude that there was
ample evidence before the circuit court that it could consider on the potential-harm factor,
and the court’s decision to terminate McNeer’s parental rights was not clearly erroneous.
Affirmed.
GRUBER, C.J., and BROWN, J., agree.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
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