Shaffer v. Arkansas Department of Human Services , 2016 Ark. App. LEXIS 229 ( 2016 )

Cite as 2016 Ark. App. 208
ARKANSAS COURT OF APPEALS
DIVISION III
No.CV-15-1031
Opinion Delivered: APRIL 13, 2016
BRANDON SHAFFER
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NO. 23JV-14-99]
V.
HONORABLE DAVID M. CLARK,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILD
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Brandon Shaffer appeals the termination of his parental rights to his
daughter, HS, born in October 2012. The child’s mother, Amanda Flynn, consented to the
termination of her parental rights to HS, so she is not a party to this appeal. Appellant
contends that neither of the statutory grounds alleged by the Department of Human Services
(“DHS”) against him are supported by clear and convincing evidence, such that reversal is
mandated. We disagree and affirm.
Termination of parental rights appeals are reviewed de novo, but our court does not
reverse in the absence of clear error. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207,
40 S.W.3d 286 (2001); Drake v. Ark. Dep’t of Human Servs., 2014 Ark. App. 475, 442
S.W.3d 5. At least one statutory ground must exist, 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
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convincing evidence. Ark. Code Ann. § 9-27-341 (Repl. 2015); M.T. v. Ark. Dep’t of
Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). 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 trial court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human
Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Tucker v. Ark. Dep’t of Human Servs., 2011
Ark. App. 430, 389 S.W.3d 1; Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379
S.W.3d 703. Credibility determinations are left to the trial court. Moiser v. Ark. Dep’t of
Human Servs., 95 Ark. App. 32, 233 S.W.3d 172 (2006).
The intent behind the termination-of-parental-rights statute is to provide
permanency in a child’s life when it is not possible to return the child to the family home
because it is contrary to the child’s health, safety, or welfare, and a return to the family home
cannot be accomplished in a reasonable period of time as viewed from the child’s
perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is
not determinative; the issue is whether the parent has become a stable, safe parent able to
care for his or her child. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201
S.W.3d 391 (2005); Cole v. Ark. Dep’t of Human Servs., 2012 Ark. App. 203, 394 S.W.3d
318; Tucker, supra. A parent’s past behavior is often a good indicator of future behavior.
Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160. Termination
of parental rights is an extreme remedy and in derogation of a parent’s natural rights;
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however, parental rights will not be enforced to the detriment or destruction of the health
and well-being of the child. Pine, supra.
The standard of review in appeals of termination of parental rights is de novo, but
we reverse a trial court’s decision to terminate parental rights only when it is clearly
erroneous. Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000);
Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851; Brewer v. Ark.
Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). 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. Wade v. Ark.
Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); Knuckles v. Ark. Dep’t of
Human Servs., 2015 Ark. App. 463, 469 S.W.3d 377; Hopkins v. Ark. Dep’t of Human Servs.,
79 Ark. App. 1, 83 S.W.3d 418 (2002).
In this case, the trial court found that two statutory grounds defined in Arkansas
Code Annotated section 9-27-327(b)(3)(B) had been proved to support terminating
appellant’s parental rights. Those grounds were (1) the “aggravated circumstances” ground,
and (2) the “other factors” ground. It is these findings that are challenged on appeal.
Appellant does not contest the “best interest” finding made by the trial judge. If either
ground found by the trial court to be supported by clear and convincing evidence is not
clearly erroneous, we are compelled to affirm.
The Juvenile Code describes the “other factors” ground as when other factors or
issues arise subsequent to the filing of the original petition for dependency-neglect that
demonstrate that placement of the child in the custody of the parent is contrary to the child’s
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health, safety, or welfare, and that despite the offer of appropriate family services, the parent
has manifested the incapacity or indifference to remedy the subsequent issues or factors or
rehabilitate the parent’s circumstances, preventing the return of custody to the parent. See
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Here, the trial court found that appellant had
demonstrated a pattern of instability, refused to address his substance-abuse issues, was
uncooperative with DHS, and failed to comply with the case plan and case orders, such that
despite the offer of services, he was incapable of, or indifferent to, remedying the subsequent
issues. The Juvenile Code describes the “aggravated circumstances” ground as when a
parent has subjected the child to abandonment, chronic abuse, extreme or repeated cruelty,
sexual abuse, or when a trial judge determines that there is little likelihood that services to
the family will result in a successful reunification. See Ark. Code Ann. § 9-27-
341(b)(3)B)(ix)(a). Here, the trial court found that there was little likelihood that additional
services would result in appellant reunifying with HS.
The evidence showed that there had been a prior finding of inadequate supervision
as to HS’s parents in August 2013. Both parents admitted to regular use of
methamphetamine, but a case was not opened because DHS could not locate the family.
The present case was opened when HS was taken into DHS custody in February 2014, after
being summoned by law enforcement to appellant’s residence in Conway. The case was
open for the next year and a half. The hearing on DHS’s petition to terminate parental
rights was conducted in August 2015, and the order on appeal was filed in September 2015.
The primary concern with appellant was a substance-abuse problem, mainly
methamphetamine use. Appellant maintained that he did not have a drug problem
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and that he did not need drug treatment. Other concerns were appellant’s sporadic
attendance to supervised visitation, his failure to maintain contact with DHS, his failure
to attend drug treatment, his pending felony charges, his lack of a valid driver’s license,
and his lack of stable housing and employment. Appellant had five positive drug tests for
methamphetamine over the course of this DHS case. Appellant did have one negative hair-
follicle test in the days leading up to the termination hearing. The judge found that
appellant’s failure to attend inpatient rehabilitation or NA/AA meetings was a major factor
in this case, and given his denial of any drug problem, there were no additional services to
provide appellant in order to successfully reunify appellant with his daughter.
Appellant’s argument as to “aggravated circumstances” focuses on his single negative
hair-follicle test prior to the termination hearing, which he says shows three months of
sobriety. He adds that the trial court found him in partial compliance over the course of
this case, having recently acquired an appropriate home and a job as well as having
completed parenting classes and counseling. His compliance with the case plan in these
respects, he argues, shows that it was wrong to conclude that there was little likelihood that
further services would result in successful reunification with HS. We disagree.
Appellant was given approximately eighteen months of DHS intervention and
services designed to address his instability and drug addiction. Although appellant tested
positive for methamphetamine five times, he continued to deny that he had a drug problem.
In spite of his completion of some services, the primary issue remained unresolved. The
issue was whether appellant had become a stable, safe parent with the ability to care for his
child. Camarillo-Cox, supra. A parent’s past behavior is often a good indicator of future
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behavior. Stephens, supra. A child’s need for permanency and stability may override a
parent’s request for more time to improve the parent’s circumstances. Knuckles v. Ark. Dep’t
of Human Servs., 2015 Ark. App. 463, 469 S.W.3d 377; Loveday v. Ark. Dep’t of Human
Servs., 2014 Ark. App. 282, 435 S.W.3d 504. The trial court did not clearly err in finding
that there was little likelihood that further services would result in appellant successfully
reunifying with the child. Compare McKinley v. Ark. Dep’t of Human Servs., 2015 Ark. App.
475, 471 S.W.3d 209; Henson v. Ark. Dep’t of Human Servs., 2014 Ark. App. 225, 434
S.W.3d 371. Because only one statutory ground is required to be proved, we need not
discuss the alternative statutory ground relied on by the trial court in terminating appellant’s
parental rights. Loveday, supra.
We affirm.
VIRDEN and BROWN, JJ., agree.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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