Brown v. Arkansas Department of Human Services ( 2017 )

Cite as 2017 Ark. App. 497
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-17-419
TIMOTHY BROWN Opinion Delivered: October 4, 2017
APPELLANT
APPEAL FROM THE CRAWFORD
V. COUNTY CIRCUIT COURT
[NO. 17JV-15-57]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILD HONORABLE MICHAEL
APPELLEES MEDLOCK, JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Timothy Brown appeals from the February 24, 2017 order of the Crawford County
Circuit Court terminating his parental rights to his daughter, E.B. (DOB: 02/06/2015). 1
On appeal, Brown’s sole challenge is the court’s best-interest finding. He argues that there
was insufficient evidence presented to establish the adoptability prong of the best-interest
analysis and that evidence failed to demonstrate termination was in E.B.’s overall best
interest. For the following reasons, we affirm.
On February 27, 2015, the Arkansas Department of Human Services (“DHS”) filed
a petition for emergency custody and dependency-neglect. An emergency order was entered
the same day, which placed custody of E.B. with DHS. On March 5, 2015, the circuit court
1
The order also terminated the parental rights of E.B.’s mother, Haley Elizabeth
Mills. She consented to her termination of parental rights and thereafter did not appeal the
termination order. Thus, she is not a party to this appeal.
Cite as 2017 Ark. App. 497
found probable cause that E.B. was dependent-neglected and that the emergency situation
that necessitated removal of the juvenile continued such that it was necessary for the juvenile
to remain in the custody of DHS until the adjudication hearing. On April 9, 2015, the
circuit court adjudicated E.B. dependent-neglected due to parental unfitness because of the
mental-health issues of her mother, Haley Mills.
After E.B. was born at home, she was seen at the hospital, and hospital workers were
concerned with the ability of E.B.’s mother to properly care for the child. E.B. had a blueish
discoloration on her right eye and eyelid, and she tested positive for morphine. While in
the hospital, Mills was not cooperative and did not appropriately care for or bond with E.B.
Timothy Brown was identified as E.B.’s father and was incarcerated at the time of the
removal. In a review order entered on October 1, 2015, the court found that Brown is
E.B.’s legal father and that he had been paroled to Mills’s house.
A permanency-planning hearing was held on February 4, 2016, and at it, the court
found that Brown had not complied with the case plan and noted that although he had been
paroled to Mills’s home, the relationship had become volatile and erupted into verbal
altercations during visitations. In November 2015, he stopped visiting E.B. and had had no
contact with DHS since that time. In the February 4 order, the circuit court also changed
the case goal to adoption with termination of parental rights, and Brown was appointed an
attorney. DHS filed a petition to terminate parental rights on August 31, 2016.
On January 19, 2017, the circuit court held a hearing on the termination petition,
and Brown, who was incarcerated at the time, testified. Brown stated that he believed he
had relatives who were interested in having E.B. placed in their care, including his
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stepmother, Janie Brown. He testified that, to his knowledge, Janie asked DHS to perform
a home study but that DHS refused to do so. Janie did not testify at the hearing; nor did
any of Brown’s family members.
K.C. Oliver, the DHS caseworker assigned to the case, testified at the termination
hearing. She explained that E.B. had tested positive for morphine and had been diagnosed
with laryngomalacia. Oliver testified that this disorder made it difficult for E.B. to swallow,
eat, or breathe. Oliver explained that E.B. was getting healthier due to medical treatments
and was having a “new button” put in the day of the hearing. 2 Oliver also testified as to
E.B.’s adoptability, answering, “E.B. is adoptable. Like I said, she’s getting healthier by the
day and she’s happy.”
In an order entered on February 24, 2017, the circuit court terminated Brown’s
parental rights, finding that there was a likelihood that E.B. would be adopted and that
termination was in E.B.’s best interest. Brown timely filed a notice of appeal.
This court’s review of cases involving the termination of parental rights is de novo.
Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. Grounds for
termination must be proved by clear and convincing evidence, which is such a degree of
proof that will produce in the fact-finder a firm conviction as to the allegation sought to be
established. Id. Our inquiry is whether the circuit court’s finding that the disputed fact was
proved by clear and convincing evidence is clearly erroneous. Id. Credibility determinations
are left to the fact-finder. Id.
Termination of parental rights is a two-step process requiring a determination that
2
The record does not reflect any definition of this term.
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the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark.
Dep’t of Human Servs., 2016 Ark. App. 227, at 2, 491 S.W.3d 153, 155. The first step requires
proof of one or more statutory grounds for termination; the second step, the best-interest
analysis, includes consideration of the likelihood the juvenile will be adopted and of the
potential harm caused by returning custody of the child to the parent. Norton v. Ark. Dep’t
of Human Servs., 2017 Ark. App. 285. In determining potential harm, which is forward-
looking, the court may consider past behavior as a predictor of likely potential harm should
the child be returned to the parent’s care and custody. Harbin, supra. There is no requirement
to establish every factor by clear and convincing evidence; after consideration of all factors,
the evidence must be clear and convincing that termination is in the best interest of the
child. Id.
Brown does not challenge the statutory grounds for termination. He contends only
that the circuit court committed reversible error when it terminated his rights because there
was a lack of evidence introduced to establish the adoptability of E.B. In making a best-
interest determination, the circuit 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. Miller v. Ark. Dep’t of Human Servs., 2016 Ark. App. 239, 492 S.W.3d 113.
While the likelihood of adoption must be considered by the circuit court, that factor is not
required to be established by clear and convincing evidence. Caldwell v. Ark. Dep’t of Human
Servs., 2016 Ark. App. 144, 484 S.W.3d 719 (citing Hamman v. Ark. Dep’t of Human Servs.,
2014 Ark. App. 295, 435 S.W.3d 495). A caseworker’s testimony that a child is adoptable
is sufficient to support an adoptability finding. Id.
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Brown argues that the caseworker’s statement that “[E.B.] is adoptable. Like I said,
she’s getting healthier by the day and she’s happy” is not evidence of adoptability and
maintains that “this conclusory statement was insufficient to be considered sufficient
evidence that there was a likelihood that this child would be adopted under Grant or Kerr.”
In Grant v. Arkansas Department of Human Services, 2010 Ark. App. 636, 378 S.W.3d
227, our court reversed a termination order where the only evidence of adoptability was a
caseworker’s opinion that the child was adoptable because “all children are adoptable.” Id.
at 13, 378 S.W.3d at 233. The child in Grant suffered from autism, and the condition was
not considered in determining whether he was adoptable. Id. The record showed that it had
been impossible to find a foster placement for the child in the same county as the parent,
that the foster parent had no interest in adopting him, and that the caseworker offered only
one email contact regarding a person who might be interested in adopting a child with
autism. Id.
In Kerr, this court reversed the circuit court’s best-interest finding because the only
evidence regarding adoptability was that of the child, who testified that she wanted her
mother’s rights terminated and that she wanted her foster parents to adopt her sibling and
her. See Kerr v. Ark. Dep’t of Human Servs., 2016 Ark. App. 271, at 8, 493 S.W.3d 342, 347.
As our court held, “This simply does not constitute evidence regarding the likelihood that
the children will be adopted.” Id. (Emphasis in original.)
Such is not the case here. The circuit court considered, and made its best-interest
finding based on, the testimony of DHS caseworker Oliver, who testified in detail about
E.B.’s diagnosis of laryngomalacia and how she had improved before concluding that she is
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adoptable. When asked about E.B.’s medical progress, Oliver answered that the child was
“getting a little healthier by the day,” was happy in her placement, and was bonding very
well with her foster family. Oliver further noted that E.B. had undergone several medical
treatments and was receiving a “new button” later that day. This testimony is sufficient to
affirm the circuit court’s best-interest finding because it was specific to the juvenile’s
individual characteristics. See Stanley v. Ark. Dep’t of Human Servs., 2016 Ark. App. 581, 507
S.W.3d 544.
Furthermore, based on Oliver’s testimony, the circuit court specifically noted in the
termination order that E.B. “possessed improving health and medical conditions with
prospects for a brighter future, as the infant grows and is cared for appropriately, enhancing
her adoptability with fewer and fewer barriers to adoptability foreseen.” We give great
deference to the circuit court’s findings and will not reverse a circuit court unless it is clear
that the circuit court made a mistake. E.g., Chaffin v. Ark. Dep’t of Human Servs., 2015 Ark.
App. 522, 471 S.W.3d 251. Here, the circuit court did not make a mistake in finding that
E.B. is adoptable; therefore, we affirm on this point.
Brown also argues that the evidence was insufficient to demonstrate that termination
was in E.B.’s overall best interest where termination severed the relationship between E.B.
and her relatives and where relatives were available to provide permanency for E.B. In
support of this argument, Brown cites Caldwell v. Arkansas Department of Human Services,
2010 Ark. App. 102, and the well-established principle that relative interests are derived
from the rights of parents. However, this case is distinguishable from Caldwell, where the
juvenile had been placed into the temporary custody of the paternal grandparents for several
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months prior to being returned to the custody of the mother by the time of the termination
hearing. 3
Here, there is no evidence to show that E.B. had a relationship with any relative.
There was no testimony presented to indicate that terminating Brown’s parental rights
would extinguish the interest of any relative who was the juvenile’s legal custodian, had
previously been the juvenile’s legal custodian, or had otherwise stood in loco parentis to the
juvenile. Brown simply stated that he believed he had relatives who were interested in
having E.B. placed in their care and specifically mentioned his stepmother, Janie Brown.
But Janie did not testify at the hearing, and there was no evidence to show that any
relationship existed between E.B. and Janie, or any other relative for that matter. Unlike in
Caldwell, the circumstances in the instant case do not establish that the best-interest finding
was clearly erroneous. Accordingly, we affirm.
Affirmed.
VAUGHT and HIXSON, JJ., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
3
When the circuit court returned the juvenile to the mother’s custody based on the
finding she had complied with the case plan, the paternal grandmother was awarded
standard, alternating weekend visitation with the child. The court further found that the
termination of the appellant’s parental rights should not affect the rights of the paternal
grandmother, who was found to have “stood in loco parentis to [the juvenile] and was the
primary caregiver for a time.” Caldwell, 2010 Ark. App. 102, at 5.
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