Stanley Thompson v. Arkansas Department of Human Services and Minor Child ( 2022 )

Cite as 2022 Ark. App. 478ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-247
STANLEY THOMPSON Opinion Delivered November 30, 2022
APPELLANT
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
V. [NO. 63JV-20-43]
ARKANSAS DEPARTMENT OF HONORABLE ROBERT HERZFELD,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED
RAYMOND R. ABRAMSON, Judge
Stanley Thompson appeals the Saline County Circuit Court’s no-reunification-
services and termination-of-parental-rights (TPR) orders. On appeal, Thompson argues the
following three points: (1) the Arkansas Department of Human Services (DHS) did not prove
its motion for no-reunification services; (2) DHS did not prove by clear and convincing
evidence the statutory grounds; and (3) termination of parental rights was not in the child’s
best interest. His arguments center on his assertion that DHS failed to present evidence that
it offered specific services to Thompson to assist with his MC’s (minor child’s) fetal alcohol
spectrum disorder (“FASD”). We disagree and affirm.
On March 5, 2020, DHS exercised a seventy-two-hour hold on MC after Thompson
was arrested for the physical abuse of M.C.’s mother, Christina McAtee, and both parents
tested positive for illegal drug use. This was the third time that MC had been placed in the
foster-care system over the last seven years.
On March 9, DHS filed a petition for dependency-neglect alleging that MC was at
substantial risk of serious harm as a result of neglect and parental unfitness. The attached
affidavit alleged that McAfee admitted using cocaine and tested positive for both cocaine
and THC. In an interview at the Saline County jail following his arrest, Thompson denied
having attacked McAtee. He also tested positive for THC, cocaine, and benzodiazepines.
MC reported that his father made his mother “bleed” because his father thought his mother
was going to do harmful things to him, including “kick [MC] outside.” MC witnessed
Thompson punch McAtee repeatedly.
The circuit court entered an ex parte order for emergency custody on March 10,
finding that DHS had been involved with the family since December 12, 2013, the day MC
was born. The court further found that, despite reasonable services provided by DHS,
Thompson’s and McAtee’s substance use seriously affects their ability to supervise, protect,
or care for MC.
On March 12, the circuit court held a probable-cause hearing and found that
probable cause existed for the emergency order to remain in place. Additionally, the circuit
court ordered the parents to comply with the case plan and court orders. On April 21, the
circuit court entered an agreed adjudication and disposition order. In this order, the circuit
court found MC dependent-neglected on the grounds of neglect and parental unfitness due
to the parents’ illegal drug use. The adjudication order also found MC was subjected to
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domestic violence in the home. Additionally, the circuit court ordered the parents to comply
with the case plan and court orders.
On July 27, the circuit court held a review hearing. At this hearing, the circuit court
continued the goal of reunification and found that DHS had made reasonable efforts by
offering the following services: foster care, medical services, transportation, counseling,
parenting classes, a drug-and-alcohol assessment, drug treatment, drug screens, visitation,
psychological evaluation, anger management, and case management. Additionally, the
circuit court found that Thompson was in partial compliance with the case plan and court
orders and found that his drug screen on June 17, 2020, did not register a proper
temperature. Further, the circuit court ordered the parents to comply with the case plan and
court orders, cooperate with DHS and CASA, demonstrate stability, participate in family
therapy and anger management, and comply with the recommendations of the drug-and-
alcohol assessment.
On October 26, the circuit court held another review hearing wherein it continued
the goal of reunification and found that DHS had made reasonable efforts. Additionally, the
circuit court found that Thompson had been visiting MC, that he was attending counseling,
that he completed his drug-and-alcohol assessment, that he was testing negative on drug
screens, and that he was participating in parenting and anger-management classes. Further,
the circuit court ordered Thompson to maintain contact with DHS, comply with the case
plan, maintain stable housing, submit to a hair-follicle test, and to obtain his drivers’ license
and insurance or to obtain alternate transportation.
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On January 25, 2021, the circuit court held another review hearing. The circuit court
continued the goal of reunification and found that DHS had made reasonable efforts by
offering the following services: home visits, transportation, medical services, foster care,
daycare, counseling, drug screens, a drug-and-alcohol assessment, anger-management classes,
parenting classes, and inpatient and outpatient drug treatment. The circuit court also found
that Thompson had made limited progress with the case plan. Specifically, it found that he
was participating in visits and individual and family counseling; however, it found that the
family counselor, Liz Freeze, believed that there had not been a significant enough change
in Thompson. Additionally, the court found that Thompson did not have stable housing,
and it ordered Thompson to follow the case plan and court orders and to abstain from
substance and alcohol use forty-eight hours before visits.
On February 26, the circuit court held a permanency-planning hearing. At this
hearing, the circuit court continued the goal of reunification and found that DHS had made
reasonable efforts. Additionally, it found that Thompson had been participating in visitation
as well as individual and family counseling and outpatient treatment. Further, it ordered
Thompson to comply with the case plan and court orders and to maintain stable housing
and transportation.
On June 14, the circuit court held a fifteen-month review hearing. At this hearing,
the circuit court continued the goal of reunification and found that DHS had made
reasonable efforts. Additionally, it found that Thompson was in individual and family
counseling; that he was attending visits; and that he was in outpatient drug treatment. It also
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found that Thompson was facing criminal charges, and the court noted concern regarding
Thompson’s housing situation and emotional stability. The court ordered Thompson to
comply with the case plan and follow court orders.
On September 17, DHS filed a motion to terminate reunification services, and a
hearing was held over the course of two days—October 11 and 18. The court heard testimony
by both Thompson and McAtee and the following witnesses: Dapple Ault, Hot Spring
County Division of Children and Family Services caseworker; Ceressa Owens, Saline County
Division of Children and Family Services program assistant; Toni Hansberry, Saline County
Division of Children and Family Services supervisor; Deanna Walderns, foster parent; Liz
Freeze, LCSW at the Counseling Clinic; and Elizabeth Cleveland, Ph.D., CCC-SLP, assistant
professor at the University of Central Arkansas and codirector of the Specialty Diagnostic
Resource Center. The circuit court subsequently entered an order granting DHS’s petition
to terminate reunification services on the aggravated-circumstances ground, specifically
finding that “offering training regarding FASD to Mr. Thompson is not appropriate due to
his failure to benefit from more basic services.”
On October 19, DHS filed a petition for termination of parental rights. The circuit
court held a termination hearing on January 19, 2022. After considering the evidence, the
court terminated Thompson’s parental rights under multiple grounds, including aggravated
circumstances. In its January 27 order, the court reiterated its findings from the no-
reunification order:
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That the parent, Stanley Thompson, has subjected the juvenile to aggravated
circumstances in that a determination has been made by a court of competent
jurisdiction that there is little likelihood that services to the family will result in
successful reunification. Specifically, this Court found on October 18, 2021 by clear
and convincing evidence that there is little likelihood that continued services to the
family will result in successful reunification and thus found that the juvenile had been
subjected to aggravated circumstances. The Court made findings that despite all of
the services completed by Mr. Thompson, he is not capable of raising any child, much
less a child with special needs; that Mr. Thompson does not demonstrate emotional
stability and cannot control his own behavior; that continuation of reunification
services is not in the juvenile’s best interest; that Mr. Thompson failed to show he
benefitted from the services provided; and that offering training regarding Fetal
Alcohol Spectrum Disorders (FASD)/Fetal Alcohol Syndrome (FAS) to Mr.
Thompson is not appropriate because he has failed to benefit from more basic
services.
The circuit court also found that it was in MC’s best interest to terminate parental
rights. Thompson now appeals.1
Termination-of-parental-rights cases are based upon 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
1
McAtee filed a consent to terminate her parental rights on January 19, 2022, so she
is not a party to this appeal.
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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 making a best-interest determination, 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. A no-reunification-services finding requires this
same burden of proof as well as the same standard of review on appeal. E.g., McHenry v. Ark.
Dep’t of Hum. Servs., 2014 Ark. App. 443, at 9, 439 S.W.3d 724, 729.
On appeal, Thompson argues that because DHS failed to provide him with
specialized services to properly parent MC given his FASD diagnosis, the circuit court erred
in its finding that aggravated circumstances existed. We do not find merit in his argument.
Under the aggravated-circumstances ground, a circuit court may terminate parental
rights or reunification services if there is little likelihood that further services will result in a
successful reunification. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(A)–(B)(i) (Supp. 2021);
Ark. Code Ann. § 9-27-365(c)(2)(A)(v) (Repl. 2020). Here, DHS offered several services to
Thompson, such as home visits, transportation, medical services, foster care, daycare,
counseling, drug screens, a drug-and-alcohol assessment, anger-management classes,
parenting classes, and inpatient and outpatient drug treatment. Despite these services, the
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family therapist in this case, Freeze, testified that Thompson was not benefiting from family
counseling because he was unable to regulate his emotions and got upset easily. Moreover,
Freeze testified that Thompson had sadness, frustration, and anger issues and that she did
not believe that he would be able to calmly discuss his issues and listen to MC. Furthermore,
this was MC’s third time in foster care, and multiple witnesses—including Freeze—testified
that MC finally needed some stability.
This court has consistently held that proof of services is not an element of the
aggravated-circumstances finding. E.g., Peterson v. Ark. Dep’t of Hum. Servs., 2020 Ark. App.
75, at 12, 595 S.W.3d 38, 45. Here, the circuit court specifically found that FASD services
would not be beneficial in Thompson’s case because Thompson had not benefited from the
basic case-plan services. Thompson is simply asking this court to reweigh the circuit court’s
consideration of evidence in this case, which is impermissible under our standard of review.
E.g., Reyes-Ramos v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 46, at 12, 571 S.W.3d 32, 39.
Accordingly, we affirm the circuit court’s aggravated-circumstances finding in both the
termination order and the no-reunification-services order.
Thompson next argues that the circuit court erred in finding that termination of
parental rights was in MC’s best interest. 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. Thompson fails to
challenge the adoptability factor of the circuit court’s best-interest finding; thus, we are not
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required to address this factor. See, e.g., Easter v. Ark. Dep’t of Hum. Servs., 2019 Ark. App.
441, at 8, 587 S.W.3d 64, 608.
Thompson does, however, challenge the potential-harm factor. To find 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. Potential
harm must be viewed in a forward-looking manner and in broad terms, including the harm
the child suffers from the lack of a stable, permanent home. Collins v. Ark. Dep’t of Hum.
Servs., 2013 Ark. App. 90. Additionally, the same evidence that supports an aggravated-
circumstances finding may also support a potential-harm finding. Kloss, 2019 Ark. App. 389,
at 8, 585 S.W.3d at 730. Such is the case here.
Thompson’s argument that the circuit court’s potential-harm finding was clearly
erroneous because he was not provided FASD services to reunify with MC is unpersuasive.
We conclude that there was sufficient evidence to support a potential-harm finding based
on the same evidence that supports the circuit court’s aggravated-circumstances ground. In
completing a de novo review of the record, the circuit court’s finding that termination was
in MC’s best interest was not clearly erroneous, and we affirm.
Affirmed.
GLADWIN and MURPHY, JJ., agree.
Dusti Standridge, for appellant.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor child.
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