Brandau v. Arkansas Department of Human Services , 2017 Ark. App. LEXIS 93 ( 2017 )

Cite as 2017 Ark. App. 87
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-16-920
OPINION DELIVERED: FEBRUARY 15, 2017
CLARISSA BRANDAU
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
EIGHTH DIVISION
V. [NO. 60JV-14-1533]
HONORABLE WILEY A.
ARKANSAS DEPARTMENT OF HUMAN BRANTON, JR., JUDGE
SERVICES AND MINOR CHILDREN
APPELLEES AFFIRMED
ROBERT J. GLADWIN, Judge
Clarissa Brandau appeals the termination of her parental rights to her two children,
G.R. (born August 29, 2006) and A.R. (born September 22, 2008). She argues that the
Pulaski County Circuit Court clearly erred in finding that it was in the children’s best
interest to terminate her parental rights and there was insufficient evidence to support the
grounds for termination alleged in the Arkansas Department of Human Service’s (DHS’s)
termination petition. We affirm.
I. Facts
DHS filed a petition for ex parte emergency custody and dependency-neglect on
November 17, 2014, alleging that the two children lived with their mother and had been
Cite as 2017 Ark. App. 87
subjected to neglect and parental unfitness. 1 The attached affidavit reflects that DHS had
received a hotline call on November 3, 2014, alleging that the children had slept in their
car with Brandau, who had been kicked out of a shelter where they had been staying. The
children were interviewed at school on November 13, 2014, and both said that they had
recently spent the nights in their mother’s car when they were not at a shelter, motel, or
friend’s house. When DHS interviewed Brandau, she admitted living in her car, and she
tested positive for methamphetamine, amphetamine, and marijuana. The children were
placed on a seventy-two-hour hold by DHS on November 12, 2014, due to their
inadequate housing and Brandau’s drug abuse. DHS noted in the supporting affidavit that
there had been three unsubstantiated reports in 2014 and a previous case that had been
closed in 2009. As a result of the petition, an ex parte order for emergency custody had
been filed on November 18, 2014, granting custody to DHS.
An order filed December 16, 2014, found probable cause that the emergency
conditions that had caused removal of the children from Brandau’s custody continued and
that it was necessary for the children to remain in DHS custody. Brandau was granted
supervised visitation, and the circuit court had no objection to the children being placed
with Thomas Redd, their putative uncle. Brandau was ordered to submit to random drug-
and-alcohol screens and a psychological evaluation.
An adjudication order was filed on January 27, 2015, finding that the children were
dependent-neglected and that the allegations in the petition were true and correct—Brandau
1
Sean Redd was named as the putative father in the petition, and his parental rights
were ultimately terminated in this case. However, he is not a party to this appeal.
2
Cite as 2017 Ark. App. 87
had subjected the children to neglect; the family was homeless; the children experienced
uncertainty as to where they would be sleeping; the family mostly slept in a car; the situation
resulted in bad hygiene for the children; and Brandau used meth, amphetamines, and
marijuana. The circuit court found that returning the children to Brandau’s custody would
be contrary to their welfare. The goal of the case was reunification. Brandau had tested
positive for amphetamine, methamphetamine, and THC on November 12, 2014; positive
for THC on November 20, 2014; and positive for THC on December 11 and 22, 2014.
Brandau was ordered to submit to a psychological evaluation and to follow the
recommendations; submit to a drug-and-alcohol assessment and follow the
recommendations; attend counseling; submit to random drug-and-alcohol screens; and
obtain and maintain stable housing and income.
A review order filed May 5, 2015, found that the case plan was moving toward an
appropriate permanency plan, and the goal of the case continued to be reunification. The
circuit court specifically held that Brandau had made an effort to comply but stated,
It remains to be seen whether any measurable progress has been made. The court is
distressed that the mother thinks that no services have been provided to her and that
there has been no case plan developed. The case plan was entered into evidence at
the last hearing. It seems as if the mother wants to blame others. Eventually the
mother acknowledged having received certain services. The court expects the
mother to do certain things on her own.
Testimony indicated the following: The mother is to be assessed for medication.
The mother works at Big Orange and sleeps at a male friend’s house on the couch.
The mother has saved about $5000 but owes at least that much, some to Forrest
Place Apartments with which she is trying to work on a settlement of accrued rent
due. Also the mother owes sum(s) due to traffic violations(s).
3
Cite as 2017 Ark. App. 87
The circuit court also found that DHS had made reasonable efforts to provide services to
achieve reunification, including transportation, bus passes, drug screenings, PACE
Evaluation, medical services, provisional foster home, and board payments.
The permanency-planning order filed on October 5, 2015, found that it was in the
children’s best interest to remain in DHS custody, and the goal of the case continued to be
reunification. The circuit court found that Brandau did not “follow through with individual
counseling and that is a real setback.” The circuit court noted Brandau’s complaints that
the therapist was “getting into her business” and advised that it was normal for a therapist
to ask questions regarding the patient’s life. The circuit court recognized that Brandau’s
cessation of therapy was due to personal conflicts with the therapist but stated that “the
manner in which the mother reportedly lost her job at Big Orange raises some question
about whether the mother’s fundamental issues have been addressed.” The circuit court
noted Brandau’s expenses ($870 per month rent) and income ($1400 per month plus income
from doing massages). Brandau was allowed day visits if her hair-follicle drug test was
negative, and if no further concerns emerged, the circuit court would entertain an agreed
order for overnight visits. DHS was to make a referral for Brandau to attend individual
counseling, and DHS was found to have made reasonable efforts to provide services.
The permanency-planning order filed on January 14, 2016, found that the children
should remain in DHS custody, and a court report was admitted reflecting Brandau’s hair-
follicle drug screen positive for marijuana on September 14, 2015, a positive urine drug
screen on October 14, 2015, a negative drug screen of October 15, 2015 (obtained
4
Cite as 2017 Ark. App. 87
independently by Brandau), and a negative urine drug screen of December 10, 2015. The
goal of the case continued to be reunification. The circuit court noted in its order,
The main concern with the mother is her mental health issue and whether she can
stay off of nonprescription drugs, whether she can maintain mental and emotional
stability, and maintain employment and appropriate housing. The court believes that
the mother is capable but unsure whether she will achieve these objectives or if she
did achieve them, whether she would continue to do so.
Testimony included the following: The mother continues to reside at . . . Little
Rock, Arkansas. Since the last hearing, the mother has changed jobs. She now
works at Teletek as a customer service representative. The mother’s work schedule
has caused the mother to miss some counseling appointments and visitation, but once
she moves beyond the “new worker” period, this shouldn’t continue to be an issue.
The mother is prescribed Lithium for anxiety but has not taken it in two months and
intends to inquire about a possible change of medication.
The circuit court accepted DHS’s recommendation and authorized three unsupervised day
visits and, depending on whether things went well, weekend visits until the next court
hearing. Brandau was ordered to take medications as prescribed. The circuit court also
found that DHS had made reasonable efforts to provide services.
A joint motion to stop weekend visits was filed on March 11, 2016, by the attorney
ad litem and DHS. The motion alleged that the goal of the case had been changed to
termination of parental rights at the permanency-planning hearing held on March 8, 2016.
The motion recited testimony from Samantha Parsons, the family service worker, stating
that Brandau had major mental-health problems and was going to therapy only because the
circuit court had ordered it. The circuit court made a finding that Brandau had not
benefited from therapy. There was further testimony that Brandau had stopped taking her
medications prescribed for her mental health. Further, Brandau was not giving her child
medication during the weekend visits, even though she had repeatedly been instructed to
5
Cite as 2017 Ark. App. 87
do so. The children advised that they had seen their mother stealing drinks in a store and
had men come to her apartment and go into her bedroom for periods of time. Parsons also
had received information that Brandau was using drugs and having other people give her
urine to submit for drug screening.
The permanency-planning order from the March 8, 2016 hearing was filed on March
23, 2016. The goal of the case was changed to termination of parental rights, and the order
recited that Brandau had failed to appear for the hearing. The circuit court found that no
material progress had been made toward reunification in that Brandau had not been
consistent with taking her medication as prescribed, had not been keeping up with her
therapy appointments, and had little insight as to the need to attend treatment.
DHS filed a petition for termination of parental rights on April 27, 2016, alleging
five grounds for termination under Arkansas Code Annotated section 9-27-341 (Repl.
2015):
1.) That a juvenile has been adjudicated by the court to be dependent-neglected and
has continued to be out of the custody of the parent for twelve (12) months and,
despite a meaningful effort by the department to rehabilitate the parent and
correct the conditions that caused removal, those conditions have not been
remedied by the parent. (See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a));
2.) That other factors or issues arose subsequent to the filing of the original petition
for dependency-neglect that demonstrate that placement of the juvenile in the
custody of the parent is contrary to the juvenile’s 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 that prevent placement of the juvenile in
the custody of the parent (See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a));
3.) That the parent is found by a court of competent jurisdiction, including the
juvenile division of circuit court, to have subjected any juvenile to aggravated
6
Cite as 2017 Ark. App. 87
circumstances (Aggravated circumstances means a juvenile has been abandoned,
chronically abused, subjected to extreme or repeated cruelty, sexually abused, or
a determination has been made by a judge that there is little likelihood that
services to the family will result in successful reunification) (See Ark. Code Ann.
§ 9-27-34l(b)(3)(B)(ix)(a)(3)(A) and (B)(i));
4.) That a parent has abandoned a juvenile. (See Ark. Code Ann. § 9-27-
341(b)(3)(B)(iv)); and
5.) That the juvenile has lived outside the home of the parent for a period of twelve
(12) months, and the parent has willfully failed to provide significant material
support in accordance with the parent’s means or to maintain meaningful contact
with the juvenile (See Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)).
At the hearing on DHS’s petition to terminate held on June 14, 2016, Danyetta
Pride, an adoption specialist, testified that the children are adoptable, that there are no major
behavioral or medical issues, and that 137 adoptive homes in their database are willing to
take the children together based on their characteristics. Pride also said that there is a relative
who might be interested in adopting the children.
Samantha Parsons testified that she had been the caseworker and had performed drug
screens on Brandau and that Brandau had completed a psychological evaluation, parenting
classes, a drug-and-alcohol assessment, and outpatient drug treatment. She said that
individual therapy and visitation were ongoing. She said Brandau had obtained and
maintained housing and employment and had transportation but did not have a driver’s
license. Brandau had a three-bedroom apartment since October or November 2015.
Parsons said that the children’s father, Sean Redd, was added to the lease because Brandau’s
income alone was not sufficient, but she thought Redd lived in Idaho at that time.
Parsons thought that Brandau was having difficulty financially maintaining the
apartment because she was also paying child support. She said that Brandau claimed the
7
Cite as 2017 Ark. App. 87
children as dependents, even though she was advised not to do so. Brandau received an
income-tax refund and used it to obtain transportation. She was also robbed by a man she
had reconnected with on Facebook who had helped her move her bed. He stole her debit
card and withdrew about $800 from Brandau’s account. Parsons said that she discussed her
concerns with Brandau about having a man in her home whom she had not seen in some
time and advised her to file a police report. Parsons was also concerned that Brandau lived
more than fifteen miles from her work and had not obtained transportation until recently.
Parsons recommended that parental rights be terminated.
She said that Brandau had completed her services, but Parsons doubted whether she
had benefited from them. She said that Brandau was doing only what the court wanted her
to do regarding her mental-health issues and was not benefiting from therapy. She also
stated that Brandau continued to use drugs, that she was self-medicating with marijuana,
and that she was not taking her Lithium. She said that the children were doing well with
their uncle and that they had been out of the home for over twelve months.
The hearing was continued on June 24, 2016, when Caroline Nardi, resident
psychiatrist stationed at the local community mental-health center, testified that she saw
Brandau one time for a medication-management appointment. She testified based on
Brandau’s file regarding her prescriptions for depression and anxiety and stated that her
diagnosis was unspecified anxiety disorder, depressive disorder, cannabis dependence, as well
as borderline personality disorder. She said that personality disorders mean that there is a
pervasive pattern of instability of interpersonal relationships, self-image, and affects
characterized with impulsivity.
8
Cite as 2017 Ark. App. 87
Nardi said that Brandau was told to return two months after her initial diagnostic
appointment, but she did not return for about six months and had not used the prescriptions.
She was given different prescriptions in order to find a medication that worked for her
symptoms of depression, labile mood, irritability, and insomnia. She was prescribed Lithium
but stopped taking it in November 2015. In January 2016, a new prescription for
mirtazapine, or Remeron, was provided to treat depression, anxiety, and insomnia.
Clonazepam was also prescribed for a short term with no refills. Although asked to submit
to a drug screen at that appointment, Brandau did not. However, Brandau did return in
February, April, and May, but she did not attend her June 2016 appointment. Nardi said
that the standard treatment for a borderline personality disorder is therapy and that a patient
should be motivated to achieve wellness, but the medical record indicated that Brandau did
not have any goals.
Dr. Hugo Morais testified that he was Brandau’s psychologist at the Little Rock
Community Mental Health Center. Their first session was September 18, 2015, but he was
not her first therapist. He said her impetus for continuing therapy was to decrease anxiety
and depressive symptoms and to comply with litigation requirements that she attend therapy.
When he met with her again on September 25, 2015, they started with specific
interventions, including psycho education regarding self-care, stress management, and a
sleep-hygiene routine. When they met on October 9, 2015, there was no observable
progress on any of those interventions. At that point it became clear to Morais that
Brandau’s primary goal for treatment was to impact the outcome of child-custody litigation.
9
Cite as 2017 Ark. App. 87
Brandau did not return to therapy until March 2016, even though weekly
appointments had been scheduled. She presented then as angry and wanted to discuss the
fact that she believed that her parental rights had been terminated because of her therapy
record. She indicated specifically that she had lost custody or had been negatively impacted
by the last progress note on her file.
Morais testified that there had been no progress made by March 18, 2016, as far as
her treatment goals, issues, and interventions. Morais informed Brandau that her only stated
goal—to get her kids back—was not an appropriate goal for psychotherapy, consistently.
When the trial court asked the doctor whether he was drawing a distinction between
someone who wanted to improve their mental-health condition and someone who says,
“well, in order for me to get my kids back, the judge said I’ve got to get some treatment,”
Morais said yes. He explained,
Not addressing psychiatric concerns and focusing more on her litigation as opposed
to saying by addressing my mental-health concerns, I would be more able to comply
with the court requirements and do that. That wasn’t the case. The focus became
just on, I need to get custody back of my children; versus I’m experiencing problems
and anxiety and depression and borderline personality disorder. Therefore, I need
to comply with treatment so that those symptoms are abated. Therefore, I can better
function.
Morais said that no progress had been made in the following week’s meeting on
March 25, 2016, and that by then, given the difficulty with engagement in psychotherapy,
there was evidence to indicate that there was no longer a medical necessity that would be
addressed in psychotherapy. It was decided that individual psychotherapy was no longer
indicated and that Brandau would likely benefit from group therapy. He said he discussed
10
Cite as 2017 Ark. App. 87
with her the importance of abstaining from substances, meaning cannabis, and that she
should make that a stated goal of psychotherapy. He said that she denied any substance use.
Dr. Paul Deyoub, a forensic psychiatrist, testified that he evaluated Brandau and
diagnosed her with cannabis-use disorder; methamphetamine-use disorder; cyclothymic
disorder; and unspecified-personality disorder. Cyclothymic disorder is a mood disorder
that is less significant than bipolar disorder and is a combination of depression and
excitability. He also diagnosed her with unspecified personality disorder based on her test
results that were significant for high levels of emotional distress and parenting problems. He
gave the unspecified-personality-disorder diagnoses because, over the course of ten years
since she was at least nineteen, she had difficulty in relationships, managing her children’s
emotional problems, and drug use. He thought her behavior should be a bit more
destructive for her to fall into the borderline-personality-disorder category. He chose
unspecified as opposed to borderline because Brandau had a mixture of traits—dependency;
inadequacy; drug use; and emotional liability. He said that the differential diagnosis between
borderline and unspecified-personality disorder was not a big issue.
Deyoub said that he recommended to Brandau that she discontinue any drug use,
that she needed to have a place to live, and that she needed outpatient drug treatment,
outpatient mental-health treatment, parenting classes, and medication evaluation. He said
that progress for her would be that she would be calmer and more stable and in a better
mental state than when he first saw her. He admitted that it would be progress if she held
a job for eight months, was a stable living situation, took parenting classes, went through
outpatient drug treatment, and maintained a relationship with a mental-health facility to
11
Cite as 2017 Ark. App. 87
address her mental-health needs. He said that almost anything would be an improvement
from the last time he saw her.
Deyoub said that he would be concerned if there had been reports that Brandau was
complying with mental-health services to only “put a check off” on the box and that she
was not motivated to change her mental-health condition. He said that her diagnosis was a
character disorder that had to be addressed and treated because the symptoms were repetitive
and persistent. Otherwise, she would repeat the same mistakes—dependency on men and
feelings of inadequacy.
Brandau testified that she had a one-year lease on a three-bedroom flat that was
renewable “pretty soon.” She said that there had been concerns with the father’s family
knowing her address. She admitted that the father was on the lease but stated that he claimed
not to know the address. She said that she might not renew the lease on the same apartment
in order to avoid the father’s knowing her address. She described her job at Teletek doing
customer service over the telephone and said that she had worked there since October 2015.
She said that her job performance was one of her top concerns since she had been hired and
that she has done very well there. She said that she received one of the biggest bonuses for
the last quarter of 2015 and was asked to get her license for 2016. She said that she bought
a car in March 2016 and that she had a driver’s license and was not “fully aware of it being
suspended. I’m in the process of getting it unsuspended.” She then produced a driver’s
license dated May 11, 2016.
Brandau agreed that mental-health issues were driving the case. She said that she
began to get services for her mental health at the lowest point in her life, which was before
12
Cite as 2017 Ark. App. 87
the children were taken into DHS custody. She had a fire, a burglary, a miscarriage, and a
break-up with the children’s father. She said that she did not have the ability to focus on
herself when she entered the shelter at the Women’s Center at the start of the case. That
was two days before the children were taken into custody, and they were sleeping in a
parking lot. She was trying to fix everything at once, so she went to the Little Rock
Community Mental Health Center to get therapy.
Brandau admitted that she was positive for THC and methamphetamine at the time.
She said that she had not tested positive for methamphetamine since the case had begun,
but she had tested positive for THC. She said that she did not smoke marijuana, but took
edible medical marijuana. She denied stating that she was going to stop taking medication
and use marijuana instead. She said that she supports medical marijuana and that the Lithium
had been a problem due to side effects. She said she had told her caseworker that there
were no side effects with medical marijuana.
Brandau said that when she would go to her therapy session with Morais, she would
be coming from a visit at DHS and would be very emotional. She said that she felt that she
had benefited from services, especially by obtaining a place to live. She stated that the
children have their own beds for the first time. She said that she was current on her child-
support payments and that she had her own vehicle. She thought that the only barrier to
getting her children back was the “mental issue” that was coming up a lot.
She said that the children belong with her, that she loves them, and that she feels that
she could address the mental diagnosis and continue to go to therapy. She said that her goal
was to be able to manage her anxiety without “pharmaceutical medication.” She said that
13
Cite as 2017 Ark. App. 87
she was not just “checking boxes” but had made a lot of progress. Her life had changed
from living in a car to having her own apartment, a job, paying child support, and being
able to pay her bills and provide for her children.
On cross-examination, Brandau explained that she had set up the appointment at the
Little Rock Mental Health Center before the children were taken on the seventy-two-hour
hold but went to the appointment after the children had been taken. She also insisted that
the last time she had used marijuana was in October 2014 but admitted that she was positive
on a hair-follicle test in March 2016. She also admitted that she was not sure whether her
driver’s license was currently suspended. She said that Sean Redd had been physically
abusive toward her in the past and had knocked out some of her teeth, and she said that she
had told Dr. Deyoub that she was thinking of moving to Idaho Falls to live in Redd’s
vicinity so he could be in the children’s lives. She said that she would go to Idaho to put
her children’s feelings before her own. On redirect examination, Brandau admitted that she
had said she would move to Idaho in December 2014 but stated that she would not move
to Idaho now.
Finally, Caroline Banks, Samantha Parsons’s supervisor, said that on March 17, 2016,
Brandau stated that she had been prescribed clonazepam for anxiety, but it was too expensive
and that she smokes pot.
The circuit court terminated Brandau’s parental rights by order filed July 22, 2016,
pursuant to each of the grounds as alleged by DHS in its petition. 2 The termination order
2
The first three grounds alleged in DHS’s petition applied to Brandau, and the fourth
and fifth grounds applied to Sean Redd, the father of the children.
14
Cite as 2017 Ark. App. 87
reflects the findings made in previous orders as set forth above and emphasizes the circuit
court’s concern about the mother’s credibility regarding her marijuana use, her lack of
progress in individual counseling, and her justification for having contact with Sean Redd.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (failure to
remedy), the circuit court found that Brandau had made improvement but continued to
lack insight, judgment, credibility, and trustworthiness. The circuit court’s order states,
The mother has been concerned about the need for her to take her mental health
medications. In a short time, the mother would return to the use of nonprescription
drugs to self-medicate. The court believes that the mother wants her children back.
However, if returned, the children would be at risk of a return to the same
circumstances from whence they were removed. While the mother testified that she
now has obtained a car, she also testified that it needs thousands of dollars in repair
which is a foreshadowing of the past.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (subsequent
factors), the circuit court found that the same reasons set forth under the first ground applied
to this second ground. The circuit court stated, “The mother has not benefitted from
services.” The third ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)
(aggravated circumstances), applied to Brandau as follows:
The case has been open for over a year and a half. Given the mother’s mental health
issues, lack of success in treatment and failure to benefit from services, it is unlikely
that services to the family will result in successful reunification within a reasonable
period of time as measured from the children’s perspective and consistent with their
developmental needs.
The circuit court found by clear and convincing evidence that it was in the children’s
best interest to terminate parental rights, considering the likelihood that they would be
adopted and the potential harm to their health and safety if returned to their parents. The
circuit court found, “It would only be a matter of time before the mother would revert to
15
Cite as 2017 Ark. App. 87
past practices which contributed to conditions that caused removal.” Brandau filed a timely
notice of appeal, and this appeal followed.
II. Applicable Law
This court recently stated as follows:
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t
of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). 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 convincing evidence. Ark. Code
Ann. § 9-27-341. In making a “best interest” determination, the trial court is
required to consider two factors: (1) the likelihood that the child will be adopted,
and (2) the potential of harm to the child if custody is returned to a parent. Id.
Adoptability is not an essential element but is rather a factor that the trial court must
consider. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1.
Likewise, the 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. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703.
The potential-harm analysis is to be conducted in broad terms. Id. It is the “best
interest” finding that must be supported by clear and convincing evidence. Id. 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). Credibility determinations are left to
the fact-finder. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, at 8, 444
S.W.3d 366, 370.
Villaros v. Ark. Dep’t of Human Servs., 2016 Ark. App. 399, at 4–5, 500 S.W.3d 763, 766.
III. Best Interest
Brandau argues that the circuit court clearly erred in finding that it was in the
children’s best interest to terminate her parental rights. She does not challenge the evidence
that her children are adoptable. However, she maintains that, even with such wide latitude
allowed in evaluating potential harm, there is still insufficient evidence to support a
conclusion that the children faced a substantial risk of harm if returned to her custody.
16
Cite as 2017 Ark. App. 87
Brandau points out that the circuit court acknowledged that she had made progress
but then repeatedly opined that it did not believe she could “sustain improvements” that
she had made. This belief hinged on concerns about her credibility as well as her mental
health. She notes that the circuit court found in its termination order that borderline
personality disorder is a chronic condition, notwithstanding the testimony of Dr. Nardi.
Brandau argues that Dr. Deyoub did not agree that she suffered from borderline personality
disorder because he did not see the destructive behavior associated with it. Further, she
argues that Dr. Deyoub thought she had progressed in terms of maintaining a home and a
job and completing parenting classes, outpatient drug treatment, and “her relationship with
a mental-health facility.” She points out that Dr. Deyoub testified that he believed Brandau
had the capacity to make a full rehabilitation, that she is of average intelligence, and that if
she was determined to be free from drugs and to get something out of therapy to get her
children back, she had the potential to do it. She contends that it is not unusual, per Dr.
Nardi’s testimony, that patients have to try multiple medications.
Brandau argues that full compliance with a 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. Brandau maintains that
the evidence showed that she had become a stable, safe parent. She went from being
homeless to maintaining an apartment and a job for eight months. She contends that almost
a year of positive accomplishments indicates that she was ready to reunite with her children.
She also argues that two positive drug screens, viewed in the context of the entire case, did
17
Cite as 2017 Ark. App. 87
not demonstrate sufficient proof of potential harm. She also contends that DHS’s own
expert witness, Dr. Deyoub, admitted that not testing positive for methamphetamine since
the time he evaluated her in December 2014 would indicate progress on her part. She
argues that, given the bond she and the children share, it cannot be said that terminating her
parental rights was in the best interest of the children.
Based on our standard of review, we hold that clear and convincing evidence
supports the best-interest finding. Evidence supports DHS’s argument that Brandau’s lack
of insight into her mental-health diagnoses, inability to take responsibility for her therapy
and recovery, and her positive drug tests demonstrated that there was a real risk that she
would revert to past practices once judicial supervision was removed. The court is not
required to find that actual harm would ensue if the child were returned to the parent or to
affirmatively identify a potential harm. Sharks v. Ark. Dep’t of Human Servs., 2016 Ark. App.
435, 502 S.W.3d 569. The circuit court found that she lacked credibility and ultimately
believed she lacked insight into her mental illness. Credibility determinations are left to the
circuit court. Villaros, supra. Accordingly, we affirm the circuit court’s determination that
it was in the children’s best interest to terminate parental rights.
IV. Insufficient Evidence to Support Grounds
A. Failure to Remedy
Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), provides grounds for
termination of parental rights:
That a juvenile has been adjudicated by the court to be dependent-neglected and has
continued to be out of the custody of the parent for twelve (12) months and, despite
a meaningful effort by the department to rehabilitate the parent and correct the
18
Cite as 2017 Ark. App. 87
conditions that caused removal, those conditions have not been remedied by the
parent.
Brandau does not challenge that her children were adjudicated dependent-neglected
or that they were out of her home for twelve months. She asserts that there was insufficient
evidence to prove that she failed to remedy the cause of their removal. The causes alleged
by DHS were her drug use and mental and emotional instability. The circuit court found
that, despite the improvements she had made, she lacked insight, judgment, credibility, and
trustworthiness. She argues that none of these deficiencies were the reasons for the
children’s removal. Brandau contends that the petition for dependency-neglect recites that
she and the children were sleeping in a car and that she had tested positive for
methamphetamine, amphetamines, and marijuana. She argues that the circuit court’s
finding that she lacked insight, judgment, credibility, or trustworthiness is not tantamount
to a finding that she failed to remedy the homelessness or drug use.
She argues that the circuit court’s finding that “if returned, the children would be at
risk of a return to the same circumstances from whence they were removed” is based on
little more than speculation. She contends that it is contrary to the undisputed evidence
that she had remedied the issue of homelessness and employment. She claims that it is also
undisputed that she had no subsequent tests that were positive for methamphetamine after
the initial test. She contends that the positive tests for marijuana and her admission that she
had taken edible marijuana do not support the circuit court’s findings, because the circuit
court did not make a finding that she failed to remedy her drug use. She contends that the
circuit court’s finding that she lacked credibility concerning her testimony of marijuana use
is not the same as finding that she failed to remedy the conditions that caused removal.
19
Cite as 2017 Ark. App. 87
Therefore, she maintains that this ground cannot serve as a basis for affirming the termination
order.
B. Subsequent Factors
Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) provides as follows:
That other factors or issues arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that placement of the juvenile in the custody
of the parent is contrary to the juvenile’s 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 that prevent the placement of the juvenile in the custody of the parent.
DHS alleged that Brandau had failed to substantially comply with the case plan and
court orders, thus demonstrating an incapacity or indifference to remedy barriers to
placement. The circuit court found that Brandau had failed to benefit from services. She
argues that the circuit court did not make a finding that she had failed to comply with the
case plan or court orders; rather, it found that she did not benefit from the services she had
completed.
Brandau argues that, even if the circuit court’s order is construed to encompass an
actual subsequent factor, there was insufficient evidence to prove that she manifested the
incapacity or indifference to remedy any subsequent issues. She contends that the record
supports that she availed herself of services and completed the difficult task of moving from
living in a car to maintaining a job and a three-bedroom apartment, paying her child support
and her bills. She argues that there was inadequate proof to establish that she is indifferent
or incapable of remedying any subsequent factors.
20
Cite as 2017 Ark. App. 87
C. Aggravated Circumstances
Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A) and (B)(i) provides
as follows:
The parent is found by a court of competent jurisdiction, including the juvenile
division of circuit court, to:
....
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) “Aggravated circumstances” means:
(i) A juvenile has been abandoned, chronically abused, subjected to extreme
or repeated cruelty, sexually abused, or a determination has been or is made
by a judge that there is little likelihood that services to the family will result
in successful reunification[.]
Brandau contends that DHS averred that it was unlikely that further services to her
would result in successful reunification or placement within a reasonable period of time.
She claims that she demonstrated, as argued above, that she benefited from services and that
there was no evidence to suggest that she would not continue to receive such benefits. She
argues that she has maintained enough mental stability to maintain an apartment and a job.
The caseworker’s concern about mental stability was purely speculative, as was the circuit
court’s finding that termination was warranted given her “mental health issues, lack of
success in treatment, and failure to benefit from services.” She contends that, regardless of
credibility, she demonstrated the ability to maintain both a residence and a job.
DHS and the attorney ad litem contend that clear and convincing evidence supports
at least one ground for termination. They argue that the record clearly supports affirmance
under the “subsequent factors” and “aggravated circumstances” grounds. We agree. The
circuit court noted in its three-month review that “it remains to be seen whether any
measurable progress has been made . . . the Court expects the mother to do certain things
21
Cite as 2017 Ark. App. 87
on her own.” Five months later, at the permanency-planning hearing, the circuit court
found that “the mother did not follow through with individual counseling and that is a real
setback. The mother complained that the therapist was getting into her business.” The
circuit court also noted its concern regarding the manner in which Brandau lost her job at
Big Orange, noting that it “raises some questions about whether the mother’s fundamental
issues have been addressed.”
In September and October 2015, eight and nine months into the case, Brandau tested
positive for marijuana. The court stated in its review order that the “main concern with
the mother is her mental health issue and whether she can stay off non-prescription drugs,
whether she can maintain mental and emotional stability, and maintain employment and
appropriate housing.” The circuit court noted that Brandau had been prescribed Lithium
but had not taken it for two months and intended to inquire about a possible change of
medication.
The goal of the case changed to termination of parental rights in March 2016, which
was prompted by the circuit court’s viewing of Brandau’s mental-health records, which
revealed she had not consistently taken her prescribed mental-health medications, had not
been keeping up with therapy appointments, and “has little insight as to the need to attend
treatment.” At the termination hearing, there was testimony that Brandau had tested
positive for marijuana on March 24, 2016, three months before the termination hearing.
The caseworker testified that she had an issue with whether Brandau was benefiting from
the services she had completed. Brandau’s continued use of drugs and “mental and
emotional instability” continued to concern DHS.
22
Cite as 2017 Ark. App. 87
There was testimony at the termination hearing that Brandau had been diagnosed
with borderline personality disorder by the Community Mental Health Center. Those
symptoms can be difficulty with mood instability or affect and difficulty in interpersonal
relationships. Caroline Nardi, the resident psychiatrist, testified about Brandau’s extensive
medication-management history and said that if Brandau had been using cannabis, it would
be counterproductive to medication-management goals. She said a person with borderline
personality disorder had to be really motivated in therapy and participate to get better.
Dr. Morais, Brandau’s therapist, testified that she was more focused on getting her
kids back than improving her mental health. Dr. Deyoub, a forensic psychologist who
qualified as an expert, testified that he had evaluated Brandau and diagnosed her with
cyclothymic disorder and unspecified personality disorder based on her instability over a
long period of time. He did not feel that she was “borderline” or “antisocial” because there
was not enough evidence of destructiveness, and he concurred that her record was consistent
with a personality disorder. He said that if it were true that Brandau had not been following
through with therapy and was using illegal drugs, then her prognosis would be poor. He
also said that he would be concerned if any changes were motivated only by the court case
and not “internal” or made with “real insight.” Finally, Brandau testified that she had tested
positive for drugs at least three times during the case.
The subsequent factors statute specifically provides that the inability or incapacity to
remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness, or
mental deficiencies. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(c); see also Porter v. Ark. Dep’t
of Human Servs., 2010 Ark. App. 680, 378 S.W.3d 246 (diagnosis of personality disorder,
23
Cite as 2017 Ark. App. 87
which could not quickly be fixed, was sufficient evidence of “other factors” arising
subsequent to the petition). Therefore, evidence of mental illness that arises subsequent to
the petition for dependency-neglect can be relied on to demonstrate incapacity or
indifference.
In her arguments, Brandau relies heavily on her own testimony. However, the
circuit court as the trier of fact determines credibility of any witness’s testimony. Her issue
is with the weight the circuit court assigned to different testimony. This court defers to the
circuit court’s assessment. Posey v. Ark. Dep’t of Human Servs., 370 Ark. 500, 262 S.W.3d
159 (2007). Further, progress toward, or even completion of, the case plan is not a bar to
termination of parental rights. Rodgers v. Ark. Dep’t of Human Servs., 2016 Ark. App. 569,
___ S.W.3d ___. What matters is whether completion of the case plan achieved the
intended result of making a parent capable of caring for her child. Id. At the time of the
termination hearing, the most significant issue, mental illness, still had not been adequately
addressed after eighteen months.
The same evidence as discussed above supports the “aggravated circumstances”
ground. After eighteen months of services, the circuit court concluded that Brandau had
only been going through the motions and had not demonstrated substantial progress on the
real root issue—her mental illness. At the time of termination, no mental health professional
affirmatively recommended reunification—instead, all expressed concerns about her
progress and noted her lack of change. Therefore, the circuit court’s decision that there was
little likelihood that continued services would result in successful reunification is not clearly
24
Cite as 2017 Ark. App. 87
erroneous. We are not left with a firm conviction that the circuit court made a mistake as
to statutory grounds.
Affirmed.
ABRAMSON and VIRDEN, JJ., agree.
Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Mary Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
25