Gaylon Scroggins v. Arkansas Department of Human Services and Minor Children , 2023 Ark. App. 16 ( 2023 )

Cite as 2023 Ark. App. 16ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-22-355
GAYLON SCROGGINS Opinion Delivered January 25, 2023
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, EIGHTH
V. DIVISION
[NO. 60JV-20-408]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE TJUANA C. BYRD,
CHILDREN JUDGE
APPELLEES
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Gaylon Scroggins appeals the Pulaski County Circuit Court’s order terminating his
parental rights to his children, MC1 and MC2. On appeal, Scroggins argues that grounds
do not support termination of his parental rights and that termination is not in the
children’s best interest. We affirm.
On April 29, 2020, the Arkansas Department of Human Services (DHS) received a
Garrett’s Law report involving MC2. The report stated that Scroggins’s wife, Kelly McElyea,
who is the children’s mother, tested positive for THC and methamphetamine less than
twenty-four hours after giving birth to MC2.1 McElyea denied the drug use, but MC2 had
to be moved to the NICU because of withdrawals.
Family service worker Cora Owens-Wilson completed a home assessment. Owens-
Wilson found the home deplorable. She observed trash, clothes, and dog feces on the floor
throughout the home. DHS took a seventy-two-hour hold on both MC2 and MC1. At the
time of removal, the father, Scroggins, had a no-contact order due to domestic violence
against McElyea and MC1. The domestic violence resulted in criminal charges against
Scroggins for domestic abuse.
On May 11, 2020, DHS filed an amended petition for emergency custody of MC1
and MC2, and on the same day, the circuit court entered an emergency order granting DHS’s
petition. On May 14, the circuit court held a probable-cause hearing wherein it found
probable cause that the emergency conditions that necessitated removal of the juveniles
continued and that it was in the juveniles’ best interest to remain in the custody of DHS.
Further, the circuit court ordered that McElyea have supervised visitation and denied
Scroggins any visitation at that time. Additionally, the circuit court ordered McElyea and
Scroggins to submit to drug-and-alcohol screens and psychological evaluations. Both MC1
and MC2 were ordered to receive urine and hair-shaft drug screens.
On June 18, the circuit court held an adjudication hearing wherein it adjudicated
MC1 and MC2 dependent-neglected as a result of abuse, neglect, and parental unfitness.
1
McElyea executed a voluntary relinquishment of her parental rights, so she is not a
party to this appeal.
2
Specifically, the circuit court found that McElyea subjected MC2 to neglect and MC1 to
abuse due to drug exposure. UAMS records showed that MC2’s cord-blood sample tested
positive for amphetamines, methamphetamine, and THC. McElyea tested positive for the
same drugs at that time. Also, Arkansas Children’s Hospital records showed that after
removal, MC1 also tested positive for amphetamines, methamphetamine, and THC on a
hair drug test.
The court determined that neither parent was a credible witness. Specifically, as to
Scroggins, the court found him not credible when he testified that he was unaware of
McElyea’s drug use. Further, while the court found that Scroggins did not contribute to the
reason for removal since he was not living in the home when the juveniles were removed,
the court did not find Scroggins to be a fit parent. The circuit court set the case goal as
reunification, ordered Scroggins to submit to a hair shaft drug test, and ordered both parents
to (1) submit to a psychological evaluation; (2) submit to random drug-and-alcohol screens
and periodic hair shaft drug tests; (3) attend individual counseling; (4) submit to drug-and-
alcohol assessments; and (5) follow the recommendations and obtain/maintain stable
housing. At that time, McElyea was allowed to have supervised visitation, but due to the no-
contact order, Scroggins had no visitation rights. Later, on July 14, the circuit court found
that based upon the psychological evaluation, and without any objection, supervised
visitation was in the children’s best interest.
On October 6, the circuit court held a review hearing. The court found that Scroggins
had moved out of his parents’ house because they were being considered as a placement for
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the children, and he had moved in with his cousin. His next court date on the domestic-
abuse charges was set for December 7, 2020. Further, the court found that both parents were
willing to work on their relationship to stay together as a couple. Additionally, the court
found that the parents had made an effort to comply with court orders. However, the court
stated that “it remains to be seen how much actual progress is being made.” Scroggins’s
psychological evaluation showed the capacity to parent. The court continued the goal of
reunification and found that DHS had made reasonable efforts by providing an approved
foster home; board payments; medical services; home visits; drug screens; supervised
visitation; and referrals for psychological evaluations, parenting, drug-and-alcohol
assessments, inpatient substance-abuse treatment, and counseling.
On February 9, 2021, the circuit court held a permanency-planning hearing. At this
hearing, the court continued the goal of reunification. Further, the court found the parents
had made efforts to comply with court orders. Additionally, the circuit court found that
Scroggins was living with a relative and attending individual counseling. He tested positive
on an alcohol screen on October 8, 2020. He still had domestic-battery charges pending and
visitation had only been by Zoom because of COVID-19. Additionally, the court declined to
authorize unsupervised visitation for Scroggins and stated that he needed to resolve his
criminal charges. The court found DHS had made reasonable efforts by providing an
approved foster home; board payments; medical services; home visits; drug screens;
supervised visitation; and referrals for psychological evaluations, parenting, drug-and-alcohol
assessments, inpatient substance-abuse treatment, and counseling.
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On May 25, the circuit court held another permanency-planning hearing. At this
hearing, the court continued the goal of reunification. The court found that Scroggins had
tested positive for buprenorphine (BUP) on March 4, but seven other drug tests were
negative. Additionally, the court found that both parents had violated the no-contact order
when McElyea conceived a child with Scroggins in March. The court found that Scroggins
had complied to the extent he could with court orders and the case plan. Scroggins visited
the children, and there was testimony that he was taking online domestic-violence classes.
Scroggins still had pending charges. The court stated that the parents shall continue in
counseling, Scroggins shall submit to drug screens as requested, and Scroggins shall provide
documentation of attendance of the online domestic-abuse counseling and also ensure that
the issue is being addressed in his individual counseling. Further, Scroggins was ordered to
resolve his criminal charges. Again, the court found that DHS had made reasonable efforts
by providing an approved foster home; board payments; medical services; home visits; drug
screens; supervised visitation; and referrals for psychological evaluations, parenting, drug-
and-alcohol assessments, inpatient substance-abuse treatment, and counseling.
On September 30, 2021, the circuit court held a fifteen-month review hearing. The
circuit court changed the goal of the case to adoption and termination of parental rights.
Amanda Hope, DHS supervisor and acting caseworker since July 2021, testified that
Scroggins had tested positive for BUP on March 4, 2021. He was not supposed to have
contact with McElyea due to a no-contact order arising from a domestic-violence incident,
but he and McElyea were expecting another child in December. Scroggins did complete
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random drug screens, a psychological evaluation, a drug-and-alcohol assessment, and a hair-
follicle drug screen and was engaged in individual counseling for a time.
Though he had filed for divorce, Scroggins testified that he was willing to work with
McElyea to get back into the marital home. The court found that Scroggins had attended
domestic-violence classes online and attended individual counseling until his therapist left.
The court further found DHS had made reasonable efforts by providing an approved foster
home; board payments; medical services; home visits; drug screens; supervised visitation; and
referrals for psychological evaluations, parenting, drug-and-alcohol assessments, inpatient
substance-abuse treatment, and counseling.
On December 7, 2021, DHS filed a petition to terminate both McElyea’s and
Scroggins’s parental rights. On February 4, 2022, the circuit court held a termination hearing
and terminated Scroggins’s parental rights to both MC1 and MC2. Specifically, the circuit
court found that DHS had met its burden of proving “subsequent factors” as provided by
Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii) (Supp. 2021) as to Scroggins based
on his lack of demonstrated parental fitness, unresolved criminal charges, and instability
regarding his relationship with McElyea. Additionally, the circuit court found that it was in
the juveniles’ best interest to terminate Scroggins’s parental rights because the children are
adoptable and due to the potential harm they would suffer if returned to Scroggins’s custody.
Specifically, the court found that if returned to Scroggins, the children would be at risk of
domestic violence because he is likely to reunite with McElyea. It is from this termination
order Scroggins now appeals.
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Termination-of-parental-rights cases are given de novo review. E.g., L.W. v. Ark. Dep’t
of Hum. Servs., 2011 Ark. App. 44, at 8, 380 S.W.3d 489, 494. Additionally, appellate courts
will not reverse a termination order unless the findings were clearly erroneous, meaning
“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. at 9, 380 S.W.3d at
495. Further, appellate courts give due regard to the circuit court’s ability to assess a witness’s
credibility. Id., 380 S.W.3d at 494.
In order to terminate parental rights, a circuit court must find by clear and convincing
evidence that at least one ground for termination existed and that termination is in the
juvenile’s best interest. Id. at 9–10, 380 S.W.3d at 494–95. “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.” E.g., Watkins v. Ark. Dep’t of Hum. Servs., 2021 Ark. App.
55, at 4. In considering the best-interest finding, the circuit court must consider the
likelihood that the juvenile will be adopted and the potential harm that could be caused to
the juvenile if returned to the parent. E.g., L.W., 2011 Ark. App. 44, at 11, 380 S.W.3d at
496. However, unlike termination grounds, potential harm and adoptability are only factors
for the circuit court to consider, and each factor need not be established by clear and
convincing evidence. Id., 380 S.W.3d at 496.
In its termination order, the circuit court found that DHS had proved by clear and
convincing evidence the “subsequent factors” ground:
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That other factors or issues arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that placement of the juvenile(s) in the custody
of the parent(s) is contrary to the juvenile(s)’s health, safety or welfare and that despite
the offer of appropriate family services, the parent(s) has/have manifested the
incapacity or indifference to remedy the subsequent issues or factors or rehabilitate
the parent(s)’s circumstances which prevent the placement of the juvenile(s) in the
custody of the parent(s).
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
Scroggins contends this was in error. However, his argument is without merit.
Scroggins’s brief simply states: “This ground fails because there have been no subsequent
factors that arose for which an [sic] family services were offered, and Gaylon never showed
an indifference to remedy any issues that arose after the case was opened.” Scroggins does
not discuss the circuit court’s ruling as to the subsequent factors or how he remedied the
issues that arose.
Here, the case was initially opened because DHS received a Garrett’s Law report
involving MC2. Both MC2 and MC1 were removed from the legal custody of their parents,
McElyea and Scroggins, because of McElyea’s substance abuse that seriously affected her
ability to supervise and protect or care for the juveniles. At the time of removal, Scroggins
had a no-contact order due to domestic violence against McElyea and MC1. The circuit court
found that Scroggins needed counseling to address his anger and domestic-violence issues,
and drug testing. Throughout this case, DHS made meaningful efforts to reunify Scroggins
with his children by offering him multiple family services, such as an approved foster home;
board payments; medical services; home visits; drug screens; supervised visitation; and
referrals for psychological evaluations, parenting, drug-and-alcohol assessments, and
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outpatient counseling. Although there was a no-contact order in place throughout this case
from a domestic-violence incident, Scroggins and McElyea had a baby who was born in
December 2021. Further, Scroggins has failed to resolve his criminal charges as ordered.
Failure to comply with court orders can serve as a subsequent factor on which termination
of parental rights can be based. See Gonzalez v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425,
at 9, 555 S.W.3d 915, 920.
Scroggins has also demonstrated throughout this case that he is unwilling to sever his
relationship with McElyea, even though evidence shows that is what is needed for the return
of his children. Continuing in a relationship with a dangerous partner is sufficient evidence
of factors arising subsequent to removal and can demonstrate a parent’s incapacity or
indifference. See, e.g., Martin v. Ark. Dep’t of Hum. Servs., 2017 Ark. 115, at 12, 515 S.W.3d
599, 607 (affirming circuit court’s subsequent-factors decision based on father’s inability to
separate from his children’s abuser).
In its termination order, the circuit court found that Scroggins
has not had to provide full time, day and night around the clock care for the children.
He has not gotten that far in the case after 22 months to demonstrate parental fitness
on a full-time basis by extended time overnights or trial home placement.
The court also found that Scroggins was not fit to provide full-time care for the children, and
there was no evidence to the contrary. The court went further, noting in the order that
Scroggins has checked the boxes as to court ordered services, but there is no evidence
that his counseling has benefitted him to understand the consequences of his
continued relationship with his wife and its effects on him and his ability to have
custody of these children.
9
Proof of only one statutory ground is sufficient to terminate parental rights. Barris v.
Ark. Dep’t of Hum. Servs., 2017 Ark. App. 380. Here, the record is clear that returning the
children to Scroggins would be contrary to their welfare on the basis of evidence
demonstrating Scroggins’s indifference to remedying the circumstances preventing
reunification—including his failure to remedy his criminal charges; his instability; and more
importantly, his continued relationship with McElyea. As such, we affirm the circuit court’s
finding that DHS proved the subsequent-factors ground.
Sufficient evidence also supports the circuit court’s best-interest finding in this case.
The court may determine whether it is in a juvenile’s best interest to terminate parental
rights by considering the juvenile’s adoptability and the potential harm caused by returning
the juvenile to the parent. E.g., Kloss v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 389, at 7,
585 S.W.3d 725, 729–30. Scroggins fails to challenge the adoptability factor of the circuit
court’s best-interest finding; thus, we are not required to address this factor on appeal. See,
e.g., Easter v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 441, at 8, 587 S.W.3d 64, 608 (“Easter
does not challenge the adoptability finding, so we address only the potential-harm prong of
the circuit court’s best-interest finding.”).
Scroggins does, however, challenge the potential-harm factor. For potential harm,
“the trial court is not required to find that actual harm would result or to affirmatively
identify a potential harm.” E.g., Kloss, 2019 Ark. App. 389, at 7, 585 S.W.3d at 730.
Here, the circuit court found that Scroggins and McElyea continued to have a
relationship, including having another child together, despite the no-contact order in place.
10
“A parent’s past behavior is often a good indicator of future behavior.” E.g., Perry v. Ark. Dep’t
of Hum. Servs., 2021 Ark. App. 193, at 10, 625 S.W.3d 374, 381. Scroggins argues that there
is no evidence that these children were mistreated by him. However, he completely ignores
the fact that the no-contact order is in place because of his domestic violence against McElyea
and MC1.
Nevertheless, Scroggins maintains that the circuit court’s potential-harm finding was
clearly erroneous because he completed the case-plan services. We have long held that
completion of case-plan services is irrelevant when the parent continues to make decisions
that are contrary to the best interest of the child, and an appellate court will not reverse a
circuit court’s decision when the appellant’s argument is nothing more than a request to
reweigh the evidence. E.g., Black v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 518, at 9, 565
S.W.3d at 524 (“What matters is whether completion of the case plan achieved the intended
result of making a parent capable of caring for the child; mere compliance with the orders
of the court and DHS is not sufficient if the roots of the parent’s deficiencies are not
remedied.”); Bentley v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 374, at 13, 554 S.W.3d 285,
293 (“But under the standard of review, we do not act as a super fact-finder, and it is not
reversible error for the circuit court to weigh the evidence differently than how Bentley asks
the evidence to be weighed.”). As such, we hold that there was sufficient evidence to support
a potential-harm finding and affirm the circuit court’s order terminating Scroggins’s parental
rights.
Affirmed.
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GLADWIN and BROWN, JJ., agree.
Dusti Standridge, for appellant.
Demarcus D. Tave, Ark. Dep’t of Human Services, Office of Chief Counsel, for
appellee.
Dana McClain, attorney ad litem for minor children.
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