Scrivner v. Arkansas Department of Human Services ( 2016 )

Cite as 2016 Ark. App. 316
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-154
TIMMY SCRIVNER Opinion Delivered June 8, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT [NO. JV-2014-295]
ARKANSAS DEPARTMENT OF HONORABLE LEIGH ZUERKER,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Timmy Scrivner appeals an order of the Sebastian County Circuit Court
terminating his parental rights to his three children, B.S. (08/24/08), A.S. (12/23/10), and
K.S. (10/05/11). He raises two arguments on appeal: a challenge to the sufficiency of the
evidence supporting the circuit court’s best-interest determination and a due-process challenge
based on his absence at the permanency-planning hearing. We affirm.
We begin our analysis with a recognition that termination of parental rights is an
extreme remedy and in derogation of the natural rights of the parents. Crawford v. Ark. Dep’t
of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). 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). In termination cases, the circuit court must find by clear and convincing evidence that
a parent is unfit and that termination is in the best interest of the child. J.T. v. Ark. Dep’t of
Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). This normally involves a two-step
Cite as 2016 Ark. App. 316
analysis: (1) that the Department of Human Services (DHS) prove one or more of the
statutory grounds for termination and (2) that the termination of parental rights is in the
child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A) & (B) (Repl. 2015). Because
Scrivner does not challenge the statutory grounds, we will address only the best-interest
portion of the analysis.
I. Best Interest of the Child
Scrivner first argues that there was insufficient evidence presented at the hearing to
support the circuit court’s best-interest determination. We now turn our attention to the
evidence before the circuit court.
Scrivner is the father of B.S., A.S., and K.S.1 Laura Church is the mother of all three
children.2 In April 2014, DHS removed A.S. and K.S. from the custody of Church. The
children were removed by DHS for the following reasons: A.S. had burned himself on the
forehead with a torch while in the care of Church; Church lived in a “well known drug
house”; and Church admitted smoking methamphetamine. B.S. was not removed by DHS
because he was not living with Church at the time and was being cared for by the maternal
grandmother. At the time of removal, Scrivner was incarcerated.
DHS filed a petition for dependency-neglect on A.S. and K.S. and an amended
petition for dependency-neglect on B.S. The court adjudicated all three children dependent-
1
During the course of the dependency-neglect proceeding, Scrivner was adjudicated
the father of all three children.
2
Church’s parental rights have also been terminated, but that termination is not
subject to this appeal.
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neglected, granted custody of A.S. and K.S. to DHS, and granted less-than-custody
protections for B.S., maintaining the status quo placement of B.S. with the maternal
grandmother.
Throughout most of the proceeding, Scrivner remained incarcerated. He was ordered
to obtain and maintain stable and appropriate housing, income, and transportation; complete
drug-and-alcohol assessments and all recommended treatment; complete a psychological
evaluation and all recommended treatment; complete parenting classes; submit to random
drug screens and hair-follicle testing; and visit the children regularly. His compliance with
these directives was poor. In a November 2014 review order, the court found that Scrivner
had made no progress on the case plan, had not provided any proof of completion of any
services obtained in prison, had not completed any parenting classes, and had participated in
only one drug screen. The court further found that Scrivner had not visited with the
juveniles prior to their placement with the grandmother.
At the permanency-planning hearing,3 the court found that Scrivner was not diligently
working toward reunification and had not made significant or measurable progress toward
achieving the goals established in the case plan, remedying the conditions that caused removal,
or remedying the conditions that prohibited the placement of the children in his home.
Specifically, the court found that Scrivner had not made any progress on the case plan; had
not provided proof of completion of any services obtained in prison; had not provided any
evidence that he had maintained stable and appropriate housing, income, or transportation;
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Scrivner was not present at the permanency-planning hearing. His absence will be
more fully developed when we address his second argument on appeal.
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had not completed parenting classes; had not completed a psychological evaluation or any
recommended treatment; had not completed a drug-and-alcohol assessment or any
recommended treatment; and had visited the children only twice during the review period.
DHS subsequently filed a petition to terminate, and after the termination hearing, the
circuit court granted the petition. In so doing, the circuit court found that the children would
be subject to a great risk of potential harm if returned to Scrivner’s custody and that there was
little likelihood that continued services would result in reunification. In support of its
conclusion, the court noted Scrivner’s continuing and untreated substance abuse, as well as
his domestic-violence and criminal issues.
Scrivner argues that the termination of his parental rights was not necessary or essential
to protect the best interest of the children. He notes that the children were placed with their
maternal grandmother. Because of this placement, he argues that the children were not
languishing in the foster-care system; that the relative placement was a less-restrictive
alternative to termination, which negated the compelling need for permanency by
termination; and that termination would not provide any greater stability for the children.
Scrivner also argues that the termination of parental rights was contrary to the best interest of
the children by cutting the positive family ties between the children and his family and by
terminating his obligation to provide financial support, which is detrimental to the children.
Lastly, he contends that there was no proof that he posed a credible threat of harm to the
children.
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Scrivner asserts that this case is similar to Cranford v. Arkansas Department of Human
Services, 2011 Ark. App. 211, 378 S.W.3d 851, Caldwell v. Arkansas Department of Human
Services, 2010 Ark. App. 102, and Lively v. Arkansas Department of Human Services, 2015 Ark.
App. 131, 456 S.W.3d 383. In Caldwell and Lively, the child was in the permanent care of
the mother and, in Cranford, the children were in the custody of the grandparents. This court
reversed those termination decisions, finding that termination would not necessarily result in
greater permanency or stability for the children in those particular circumstances. However,
in Hayes v. Arkansas Department of Human Services, 2011 Ark. App. 21, we affirmed the
termination of parental rights based on the risk of harm to the children should they ever be
returned to the father, even absent the need for permanency. Scrivner argues that Hayes is
inapplicable to the facts of this case because there is no evidence that he had subjected the
children to violence and abuse sufficient to warrant an irrevocable break of the parental bonds.
Scrivner’s arguments are misplaced. First, the children are still in the custody of DHS.
The maternal grandmother is merely a placement option for DHS, and given that the
maternal grandmother’s rights are derivative of the mother’s rights, which have been
terminated, this placement option may change. Thus, it is not a given that this is a permanent
or stable option.
Second, this case more closely resembles Brumley v. Arkansas Department of Human
Services, 2015 Ark. 356. In that case, our supreme court held that termination was appropriate
despite the child being placed with an aunt because Brumley, who was incarcerated, lacked
essential components of the case plan, including stable housing and employment. Here,
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Scrivner was incarcerated off and on during the pendency of the action, is currently
incarcerated, and still has charges pending. He denied having a substance-abuse problem,
despite admitting having smoked marijuana to his probation officer and having received a
DWI after a hit-and-run accident. He stated that he was attending a twelve-step program,
but when questioned, could not elaborate on the steps. He contends that he has employment
and housing upon release, but because of his repeated incarcerations, there is no proof that he
can maintain either. Finally, while he argues that termination of his parental rights would cut
off his financial support of the children, the evidence at the hearing was that he was over $800
in arrears and had not made a child-support payment since January 31, 2015.
When determining the best interest of the juvenile, the circuit court takes into
consideration (1) the likelihood that the juvenile will be adopted if the termination petition
is granted and (2) the potential harm, specifically addressing the effect on the health and safety
of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-
27-341(b)(3)(A)(i) & (ii).
Arkansas Code Annotated section 9-27-341(b)(3) requires a circuit court’s order
terminating parental rights to be based on clear and convincing evidence. 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. Baker v. Ark. Dep’t of Human Servs.,
340 Ark. 42, 8 S.W.3d 499 (2000). When the burden of proving a disputed fact is by clear
and convincing evidence, the question that must be answered on appeal is whether the circuit
court’s finding was clearly erroneous. Payne v. Ark. Dep’t of Human Servs., 2013 Ark. 284. A
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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. See id. This court gives a high deference to the circuit court because that court is in a
far superior position to observe the parties before it and to judge the credibility of the
witnesses. See id.
Based on these facts, and given our high deference to the circuit court’s determination
of the evidence and the credibility of the witnesses, the circuit court’s finding of best interest
was not clearly erroneous.
II. Due Process
Scrivner next argues that his due-process rights were violated when he was prevented
from attending the permanency-planning hearing where the goal of the case was changed
from reunification to adoption and termination. This argument arises from the permanency-
planning hearing held in April 2015. Scrivner’s notice of appeal, however, specifies only an
appeal from the termination order; thus, any error committed during the permanency-
planning hearing is not preserved for our review. In Velazquez v. Arkansas Department of
Human Services, 2011 Ark. App. 168, we held that the appellant’s arguments challenging
termination of parental rights actually related to the earlier permanency-planning hearing and
review hearing, neither of which was before the court because the appellant’s notice of appeal
failed to designate the permanency-planning order or bring up the record pertaining to the
permanency-planning hearing. “While a termination order might bring up all intermediate
orders, appellant did not designate the permanency-planning hearing in his notice of appeal,
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effectively waiv[ing]” his arguments related to the permanency-planning order. Velazquez,
2011 Ark. App. 168, at 5. Because Scrivner failed to designate the permanency-placement
order in his notice of appeal or to bring forth a record of that hearing, his argument is not
preserved for our review.
Affirmed.
HARRISON and BROWN, JJ., agree.
Tina Bowers Lee, Arkansas Public Defender Commission, Dependency-Neglect
Appellate Division, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem minor children.
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