Fox v. Arkansas Department of Human Services ( 2014 )

Cite as 2014 Ark. App. 666ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-622
TIFFANY FOX Opinion Delivered November 19, 2014
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. J-2013-196-D/N]
ARKANSAS DEPARTMENT OF HONORABLE THOMAS E. SMITH,
HUMAN SERVICES and MINOR JUDGE
CHILD
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Tiffany Fox appeals the order of the Benton County Circuit Court
terminating her parental rights to her son, D.C.1 Her primary argument on appeal is that the
circuit court erred in finding that termination was in the best interest of D.C.; specifically,
she contends that there was insufficient evidence that D.C. would be subject to potential
harm if returned to her custody. We find no error and affirm.
Our standard of review in termination-of-parental-rights cases is well settled. When
the issue is one involving the termination of parental rights, there is a heavy burden placed
upon the party seeking to terminate the relationship. Stockstill v. Ark. Dep’t of Human Servs.,
2014 Ark. App. 427; Osborne v. Ark. Dep’t of Human Servs., 98 Ark. App. 129, 252 S.W.3d
1D.C.’s father, Ismaile Castro, also had his parental rights terminated; however, he is
not a party to this appeal.
Cite as 2014 Ark. App. 666138 (2007). Termination of parental rights is an extreme remedy and in derogation of the
natural rights of the parents. Stockstill, supra. Parental rights, however, will not be enforced
to the detriment or destruction of the health and well-being of the child. Id. With these
standards in mind, we turn to the facts of this case.
The Arkansas Department of Human Services exercised an emergency hold on five-
year-old D.C. in March 2013, the day after his infant brother, N.F., was killed by Tiffany’s
husband, Travis Fox. Travis was also accused of killing another of Tiffany’s infant sons, T.F.,
in 2011.2 The circuit court adjudicated D.C. dependent-neglected six months later. The
bases for adjudication were Travis’s confession that he caused the deaths of D.C.’s siblings
by physical abuse, Tiffany’s failure to take reasonable action to protect N.F. from physical
abuse by Travis, and her failure to adequately supervise D.C. and N.F. by leaving them in
Travis’s care. The court concluded that the existence of the potential for abuse was known
or should have been known by Tiffany, and her failure to supervise “placed both juveniles
at risk of harm and resulted in the death of N.F.” The court further found that return of
custody to Tiffany was not in the best interest of the child. In reaching this conclusion, the
court looked to the opinion testimony of Dr. Martin Faitak. Dr. Faitak stated that returning
D.C. to Tiffany’s care would be “actively dangerous for the juvenile,” due to Tiffany’s
borderline personality disorder and her inability to recognize the reality of situations.
2
Travis Fox was eventually convicted of murder in both children’s deaths and was
sentenced to life in prison.
2
Cite as 2014 Ark. App. 666However, the court did set the goal of the case as reunification at that time and ordered DHS
to provide services to Tiffany.
Subsequent to adjudication, the court took periodic review of the services provided
and Tiffany’s progress toward the goal of reunification. By court order, DHS provided the
services of counseling, parenting classes and domestic-violence classes. With regard to
counseling, Tiffany began her sessions but did not make significant progress in therapy.
Tiffany completed parenting classes and had been attending domestic-violence classes.
Despite this attendance, however, an incident occurred wherein the Rogers Police
Department received a disturbance call from Tiffany’s boyfriend, Aaron Mcabee, that she had
choked him during an altercation. As a result of Tiffany’s limited progress, the court changed
the goal to adoption at permanency planning.
DHS filed its petition for termination of parental rights in March 2014, alleging four
statutory grounds.3 The petition also alleged that D.C. was adoptable4 and that he was at high
risk of potential harm if returned to Tiffany because she had not accomplished her case goals
and “continue[d] to be emotionally unstable, continue[d] to engage in dangerous behavior,
and . . . demonstrated little insight into her behaviors which put D.C. at risk.”
Following a hearing, the circuit court found that DHS had established the necessary
statutory grounds and that termination was in D.C.’s best interest. With regard to the
3
Because Tiffany does not challenge the statutory grounds on appeal, these will not
be recited with any specificity.
4
Tiffany does not challenge the finding that D.C. is adoptable.
3
Cite as 2014 Ark. App. 666potential harm of returning D.C. to Tiffany’s custody, the court found not only that Tiffany
had not accomplished her case plan goals, but also that she “continues to be emotionally
unstable, continues to engage in dangerous behavior, and has demonstrated little insight into
her behaviors which put D.C. at risk.” It is from the court’s termination order that Tiffany
brings the instant appeal. Tiffany’s primary argument on appeal is that the circuit court clearly
erred in finding that D.C. would be subject to potential harm if he were returned to her
custody.
Termination of a parent’s rights must be based on clear and convincing evidence that
it is in the best interest of the child, considering the likelihood that the child will be adopted
if the parent’s rights are terminated and the potential harm caused by returning the child to
the custody of the parent. Weatherspoon v. Ark. Dep’t of Human Servs., 2013 Ark. App. 104,
426 S.W.3d 520; Ark. Code Ann. § 9-27-341(b)(3)(A). 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. Stockstill, supra. When the burden of proving a disputed fact in
equity is by clear and convincing evidence, the question that we must answer on appeal is
whether the trial 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 reviewing court on the entire evidence is left with a definite and
firm conviction that a mistake has been made. Id. Additionally, we have noted that in matters
involving the welfare of young children, we will give great weight to the trial judge’s
personal observations. Id.
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Cite as 2014 Ark. App. 666We conclude that the trial court correctly found that D.C. would be subject to
potential harm if returned to Tiffany. Dr. Karen Farst opined that the injuries sustained by
D.C.’s siblings at or around the times of their deaths were not injuries that one would expect
to find in non-ambulatory infants, and, moreover, they were injuries that would certainly be
noticeable to a caregiver. In response, Tiffany denied ever seeing bruises or other injuries
on either child. She acknowledged Dr. Farst’s testimony that the injuries would have been
visible to the children’s caretaker, but she maintained that she did not see any bruises on the
children except for one on N.F.’s head that she said he had caused himself. We must give
due regard to the opportunity of the trial court to judge the credibility of witnesses. Id.Accordingly, we find no error in the court’s conclusion that Tiffany demonstrated little
insight into her behaviors that put D.C. at risk.
Likewise, we find no error in the court’s conclusion that Tiffany continued to be
emotionally unstable. Dr. Faitak performed two psychological exams on Tiffany: one in April
2013 and another in March 2014. After his first examination, Dr. Faitak felt that Tiffany was
unstable and that it would be “actively dangerous” for her to have children with her. Given
her diagnosis of borderline personality disorder, Dr. Faitak recommended that D.C. not be
placed with Tiffany until she admitted to her problems and her need for help. By the time
of the second evaluation, Tiffany seemed to have made a moderate amount of progress: she
appeared less anxious, less depressed, and more stable. Dr. Faitak still felt, however, that she
continued to need therapy and was concerned that she still did not take responsibility for
D.C. being in foster care. He opined that, assuming she was currently making progress in her
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Cite as 2014 Ark. App. 666therapy, she would still need at least two more years of active therapy. Despite the data that
she was progressing and improving as a result of therapy, Dr. Faitak said that he nonetheless
did not think it would be safe to place a six-year-old child in her home.
Dr. Faitak’s opinion was supported by other evidence. Leigh Wade, a social worker
with Ozark Guidance Center, testified that she had conducted individual and family therapy
with Tiffany and D.C. Wade noted that Tiffany had made progress in some respects, but
“not the progress I would expect with the therapy that we have done.” Laura Byler, a
mental-health therapist at DaySpring Behavioral Health, saw Tiffany twice: once at her
intake assessment and once in a regular appointment. Byler said that she spoke to Tiffany
about her children, and Tiffany did not take “any sort of responsibility for why [D.C. was]
in foster care.” Byler felt that Tiffany was just “going through the motions” with her
counseling and had missed scheduled appointments. Although Tiffany was cooperative
during her sessions, she made “little to no progress” with her treatment.
We further find no error in the court’s conclusion that Tiffany continued to engage
in dangerous behavior. Wade stated that Tiffany had not progressed with her understanding
of the role of a parent as protector. Tiffany had also not taken any sort of responsibility in her
sessions for D.C. being in care, nor had she taken any responsibility for the deaths of her
other two children. Wade said that Tiffany lacked understanding about domestic violence,
and her failure to grasp the dangers and realities of a domestic-violence situation could cause
a child in her care to not be safe. Specifically, with regard to Tiffany’s progress, Wade
testified that her
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Cite as 2014 Ark. App. 666ability to recognize a violent relationship, and to take responsibility for her child’s
safety, is still not there. I don’t see enough evidence that would make me assess that
that situation is safe at this time. I’m telling you, at this time, I feel it is unsafe to send
D.C. home.
Byler noted that, although Tiffany said she needed to work on her relationships, she never
acknowledged that she needed to work on her domestic-violence issues.
In considering the potential harm caused by returning the child to the parent, the
court is not required to find that actual harm would result or to affirmatively identify a
potential harm. 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. Collins v.
Ark. Dep’t of Human Servs., 2013 Ark. App. 90. Additionally, the risk for potential harm is
but a factor for the court to consider in its analysis. Carroll v. Ark. Dep’t of Human Servs., 85
Ark. App. 255, 148 S.W.3d 780 (2004).
In this case, the evidence showed that Tiffany never acknowledged her role in failing
to protect her two other children from being killed by her husband; she had ongoing,
unresolved issues regarding domestic violence; she failed to participate in therapy and
counseling that were designed to help her understand and address those issues so that she
could provide a safe home for her child; and all of her mental-health professionals agreed that
she would need at least one or two more years of active participation in consistent, intensive
therapy before any of them would feel comfortable in saying that D.C. could be safely
returned to her care.
A parent has a duty to protect a child and can be found to be unfit even though she
did not directly cause her child’s injury; a parent must take affirmative steps to protect her
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Cite as 2014 Ark. App. 666children from harm. Vasquez v. Ark. Dep’t of Human Servs., 2009 Ark. App. 575, 337 S.W.3d
552. Recently, in Drake v. Arkansas Department of Human Services, 2014 Ark. App. 475, 442
S.W.3d 5, this court affirmed the termination of a father’s parental rights and upheld the
circuit court’s potential-harm finding where the father persistently denied the danger posed
to his children by his wife’s mental-health issues. In the instant case, Tiffany failed to
recognize the necessity of ongoing therapy and counseling and refused to acknowledge her
role as protector of her son. Therefore, it was not clearly erroneous for the trial court to
determine that termination was in D.C.’s best interest due to the potential threat of harm to
him if returned to Tiffany’s care.5
Affirmed.
PITTMAN and GLOVER , JJ., agree.
Shannon L. Holloway, for appellant.
Tabitha B. McNulty, County Legal Operations; and Chrestman Group, PLLC, by: Keith
L. Chrestman, for appellees.
5
Tiffany raises a brief argument wherein she suggests that the circuit court should have
extended the time for termination because she was complying with the case plan and making
progress toward reunification. She failed to assert below, however, that she should have been
granted additional time to work on her case plan, and the argument is therefore not
preserved for our review. See Cushman v. Ark. Dep’t of Human Servs., 2013 Ark. App. 3(noting that this court will not consider arguments raised for the first time on appeal); Gilmore
v. Ark. Dep’t of Human Servs., 2010 Ark. App. 614, 379 S.W.3d 501.
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