Selsor v. Arkansas Department of Human Services ( 2017 )

Cite as 2017 Ark. App. 182
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-1045
Opinion Delivered: March 15, 2017
LYDIA SELSOR AND EDWARD
TROUTMAN APPEAL FROM THE PULASKI
APPELLANTS COUNTY CIRCUIT COURT,
EIGHTH DIVISION
V. [NO. 60JV-15-233]
ARKANSAS DEPARTMENT OF HUMAN HONORABLE WILEY BRANTON, JR.
SERVICES AND MINOR CHILDREN JUDGE
APPELLEES
AFFIRMED
MIKE MURPHY, Judge
Lydia Selsor and Edward Troutman appeal the August 25, 2016 termination of their
parental rights to their two minor children, five-year-old K.S. and one-year-old L.T., 1
arguing that termination was not in the children’s best interest. We affirm.
I. Relevant Facts
The Arkansas Department of Human Services (DHS) became involved with this
family on February 5, 2015, when L.T. was born with drugs in her system. Both Lydia and
Edward tested positive for methamphetamine. K.S. was living with a neighbor in unsafe
housing. The five-year-old had poor hygiene and tested positive for methamphetamine and
1
Lydia is the mother to both children. Edward is the father only to L.T.; K.S.’s father
is not a party to this appeal.
Cite as 2017 Ark. App. 182
amphetamines subsequent to his removal. DHS exercised an emergency hold, stating
concerns of drug use, lack of employment, and lack of stable housing.
The parents stipulated to probable cause on February 19, 2015, and to findings of
dependency-neglect on March 31, 2015. In addition to the dependency-neglect finding,
the court also found that the children had been exposed to aggravated circumstances as
contemplated in the statute. 2
The case proceeded through four permanency-planning hearings. Lydia and Edward
stayed clean throughout the case, complied with their case plan, and had completed all the
services required by the November 3, 2015 hearing.
At the conclusion of the January 12, 2016 permanency-planning hearing, the circuit
court believed the parents had made enough progress to increase visitation, commenting
that if everything went well it would even “entertain an agreed order returning custody
prior to the next hearing.” There were two weekend visitations before the attorney ad litem
filed a motion to stop them, alleging that the parents were facing eviction, did not have
electricity, had left a puppy by itself at the home for four to five days, and that the children
came back smelling like cigarettes. DHS had suspended visitation for the upcoming
weekend but disagreed that weekend visitation should be stopped altogether. It asserted that
the parents had made remarkable progress to this point, the electricity was back on, the
landlord was willing to work with the parents, and the puppy had been stranded over the
weekend due to the snow storm. DHS contended that this was just a setback, and that it did
2
Ark. Code Ann. 9-27-341(b)(3)(B)(ix)(a)(3) (Repl. 2015).
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not believe the children would be at risk if visitation continued. The trial court granted the
ad litem’s motion.
The trial court changed the goal of the case to termination of parental rights at the
May 3, 2016 permanency-planning hearing, citing the parents’ inability, despite 15 months
of services, to secure and maintain appropriate, stable housing. The court also stated the
parents had judgment issues and that “there are no additional services that will actually
improve their lack of insight.”
DHS filed a petition to terminate Lydia and Edward’s parental rights, and a hearing
was held on July 26, 2016. At trial, the court heard testimony from K.S.’s occupational
therapist about K.S.’s developmental disability and how important structure and routine
were to managing it. The DHS caseworker testified that the parents had adequate income
and had completed all the services, but the children could still not return to their parents’
custody because Lydia and Edward did not have a home. She further discussed how she had
referred the parents to the housing authority, and they had been approved but did not move
in because they did not have a $500 cash deposit available. She testified that DHS did not
offer cash assistance because she believed they did have the deposit, and that they just did
not want to pay the $200 per month it would cost to rent it. Lydia testified that she would
have taken the apartment and that the $500 deposit was all that was standing between her
and her children at that time. Psychological reports finding both parents to have below-
average cognitive abilities were also admitted.
In its order, the court found that the parents had never obtained stable housing—
they had lived in at least four different cities since the case had been opened—and still did
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not have a place of their own by the termination hearing. This was especially troublesome
to the court considering that K.S. suffered developmental delays that required a consistent
routine and stability. It found the argument that the parents just needed a little more time
and deposit money disingenuous. Even if the parents had requested cash assistance, the court
reasoned, it may not have ordered it because the parents have adequate income, had a year
and a half to find stable housing, and a lessened burden because their children were in foster
care. This demonstrated to the court that the parents lacked the appropriate judgment to
meet the special needs of their children.
The court terminated Lydia and Edward’s parental rights under the grounds of failure
to remedy, subsequent factors, and aggravated circumstances. It found that termination was
in the best interest of the children because the parents did not have the ability to meet their
children’s special needs, and if returned, they would be subject to housing and emotional
instability.
Lydia and Edward now appeal, arguing that there was not sufficient evidence to
support a best-interest determination. 3
3
The parents spend the last five pages of their argument discussing how termination
was not warranted under the grounds listed by the trial court, but the appeal is otherwise
completely styled as though the only issue for consideration by this court is the best-interest
finding. Out of an abundance of caution, we will discuss how termination was appropriate
under the 12-month failure-to-remedy ground. The lower court found three statutory
grounds relevant to Lydia and Edward, but only one needs to be proved to support the
termination. Dunn v. Ark. Dep’t of Human Servs., 2016 Ark. App. 34, at 7, 480 S.W.3d 186,
190.
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II. Standard of Review
We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of
Human Servs., 2015 Ark. App. 131, at 4–5, 456 S.W.3d 383, 386. It is DHS’s burden to
prove by clear and convincing evidence that it is in a child’s best interest to terminate
parental rights as well as the existence of at least one statutory ground for termination. Id.
On appeal, the inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly
erroneous when, although there is evidence to support it, the appellate court, on the entire
evidence, is left with a definite and firm conviction that a mistake has been made. Id. We
give a high degree of deference to the circuit court, as it is in a far superior position to
observe the parties before it and judge the credibility of the witnesses. Id.
III. Best Interest
Lydia and Edward argue that there was insufficient evidence to support the trial
court’s best-interest determination because they were bonded with their children, complied
with their case plan, and their sufficient progress warranted additional time. They contend
that a little more time would have allowed DHS to provide them with “the one service that
could effectuate reunification—one-time cash assistance for [them] to obtain housing”—
and that their parental rights were terminated, essentially, because they were poor.
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. One
step 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), and the other requires proof of one or
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more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The
best-interest determination must consider the likelihood that the children will be adopted
and the potential harm caused by returning custody of the children to the parent. 4 Spencer
v. Ark. Dep’t of Human Servs., 2013 Ark. App. 96, at 5–6, 426 S.W.3d 494, 498. The court,
however, does not have to determine that every factor considered be established by clear
and convincing evidence. Id. Instead, after considering all the factors, the evidence must be
clear and convincing that the termination is in the best interest of the child. Id.
Being poor, standing alone, should not be a potential harm that would substantiate a
best-interest finding in a termination-of-parental-rights proceeding. Vail v. Ark. Dep’t of
Human Servs., 2016 Ark. App. 150, at 16, 486 S.W.3d 229, 237. Nor are we so disillusioned
as to think that unstable, unsuitable housing is not a symptom of poverty—it is—yet this
court has stated, time and again, that a failure to provide appropriate housing is contrary to
the best-interest of children. See, e.g., Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark.
131, 137, 194 S.W.3d 739, 744 (2004); Spencer, 2013 Ark. App. 96, at 7, 426 S.W.3d at
499; Latham v. Ark. Dep’t of Health & Human Servs., 99 Ark. App. 25, 33, 256 S.W.3d 543,
548 (2007); Carroll v. Ark. Dep’t of Human Servs., 85 Ark. App. 255, 262, 148 S.W.3d 780,
784 (2004). A stable home is one of a child’s most basic needs, and that cannot be ignored.
Latham, supra.
Here, however, the trial court took pains in its order terminating parental rights to
acknowledge that it was not just the lack of stable housing that was at issue, but also the lack
of judgment these particular parents demonstrated in their inability to secure that housing:
4
Lydia and Edward do not challenge the adoptability findings on appeal.
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It’s not as if these parents are fit and simply had temporary housing problems. If Ms.
Selsor and Mr. Troutman had had the ability to achieve and maintain stability, they
would have done it during the year and one half pendency of this case during which
time their children have been in foster care. Their burden was even lessened due to
the children being in foster care. The parents have had many opportunities to obtain
and/or maintain housing. On one occasion they were allowed to maintain housing
by the landlords even though they were behind in rent. The family has adequate
income, but not stable housing. That housing did not last. The parents have been
evicted two times since the case began and have had four homes since that time.
Even if Ms. Selsor and Mr. Troutman had requested cash assistance, the court may
have not have ordered it. The parents lack the judgment and stability and seem
unable to maintain any reliable housing. At some point, parents have to be able to
stand on their own. It’s a parental fitness issue.
The determination of potential harm is forward-looking by its very nature. Dowdy v.
Ark. Dep’t of Human Servs., 2009 Ark. App. 180, at 13, 314 S.W.3d 722, 728–29. The trial
court did not err in looking at the parents’ past instability and concluding that there was
nothing to demonstrate that they would be able to acquire, much less maintain, stable
housing in the future. Furthermore, the intent of the juvenile code is to provide permanency
in a juvenile’s life, and the evidence must be viewed from the juvenile’s perspective. See
Ark. Code Ann. § 9-27-341(a)(3).
Termination of parental rights is an extreme remedy and is in derogation of the
natural rights of the parents. Linker-Flores, supra. However, parental rights should not be
allowed to continue to the detriment of the child’s welfare and best interest. Id. Here, the
evidence demonstrates that Lydia and Edward had over a year and a half to find and maintain
safe, appropriate housing, but they were unable to do so. The trial court’s best-interest
determination is affirmed.
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IV. Grounds
For DHS to prevail on the failure-to-remedy ground, it must demonstrate that (1) a
juvenile was adjudicated dependent-neglected, (2) the juvenile has continued to be out of
the custody of the parent for twelve months, (3) the parents failed to remedy the cause of
the removal, and (4) the failure occurred despite meaningful efforts by DHS to rehabilitate
the parent and correct the conditions that caused removal. Ark. Code Ann. § 9-27-
341(b)(3)(B). The children entered foster care due to their parents’ drug use, lack of income,
and lack of stable housing.
As previously discussed, Lydia and Edward maintain that DHS did not provide
meaningful rehabilitative efforts because it did not offer one-time cash assistance for a deposit
on an apartment. DHS offered the following services: transportation, clothing vouchers,
case management, medical services, worker visits, referrals for psychological evaluations,
drug treatment, individual counseling, parenting classes, DNA paternity testing, casework
services, a housing-authority referral, and random drug screens. These are meaningful
services, especially when testimony indicates DHS had, in fact, considered providing the
deposit money and chose not to based on statements Lydia made to her caseworker.
During the course of the case the parents achieved sobriety and acquired jobs,
adequate income, and reliable transportation. Even so, they were not able to remedy the
last element that warranted removal: a lack of stable housing. The trial court found the lack
of housing stability to be a result of the parents’ inability to use good judgment. A trial
court’s 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
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mistake has been made. Dowdy, supra. We are not left with that impression here and
therefore affirm.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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