Johnston v. Arkansas Department of Human Services , 2017 Ark. App. LEXIS 689 ( 2017 )

Cite as 2017 Ark. App. 615
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-476
Opinion Delivered November 15, 2017
KRISTINA JOHNSTON APPEAL FROM THE LONOKE
APPELLANT COUNTY CIRCUIT COURT
[NO. 43JV-16-17]
V.
HONORABLE BARBARA
ARKANSAS DEPARTMENT OF ELMORE, JUDGE
HUMAN SERVICES AND MINOR
CHILDREN
APPELLEES
AFFIRMED
BRANDON J. HARRISON, Judge
Kristina Johnston appeals a permanency-planning-hearing order of the Lonoke
County Circuit Court based on Ark. R. Civ. P. 54(b) and Ark. Sup. Ct. R. 6-9(a)(1)(B).
This case presents a very close decision on the merits, but we are not left with a firm and
definite conviction that a mistake was made. We therefore affirm the circuit court.
I. Overview
This case 1 began in February 2016 when Johnston was arrested for fraudulent use of
a credit card, and her children D.J., L.J., and B.M. did not have a caregiver. Johnston
stipulated that her three children were dependent-neglected in March 2016 “due to her
1
The record reflects that there was an open referral and a past protective-services case
related to the children, but those are not contested in this appeal.
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parental unfitness, specifically the mother had inadequate housing.” She was ordered to
cooperate with the Arkansas Department of Human Services (DHS), follow the case plan,
not use controlled substances, submit to random drug screens, undergo a drug-and-alcohol
assessment and follow its recommendations, successfully complete a drug-treatment
program, and submit to a hair-follicle test. In April 2016, in addition to the previous orders,
the circuit court ordered Johnston to complete parenting classes, individual counseling and
family counseling (if recommended by the children’s therapist), maintain stable housing and
employment, submit to a forensic psychological evaluation, attend visitations, and
demonstrate improved parenting.
Following a June 2016 review hearing, the court found that Johnston was in partial
compliance but that she had “not proven stability. This must be done.” Following an
August 2016 review, the court wrote:
The mother is in partial compliance. She has attended counseling
weekly, completed her drug and alcohol assessment, psychological evaluation
and parenting classes. She needs to follow the recommendations of both the
drug and alcohol assessment and the psychological evaluation. A copy of her
psychological evaluation shall be provided to her therapist. The mother does
not have stable housing or employment at this time. These children need
stability.
Notwithstanding the court’s finding above, Johnston was ordered to participate in
and complete parenting classes, individual counseling, family counseling (if recommended
by the children’s therapist), anger-management classes, random drug screens, remain drug
free, complete drug-and-alcohol assessment (and follow any recommendations from it),
attend outpatient drug treatment, attend AA/NA two times a week, maintain stable housing
and employment, submit to a forensic evaluation, comply with the terms of case plan,
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cooperate with DHS, maintain contact with DHS, attend visitation, and demonstrate
improved parenting.
The circuit court reviewed the case again in November 2016, but it made no specific
findings on Johnston’s compliance with the court’s previous order. In the November 2016
order, the court removed anger-management classes, family counseling, outpatient drug
treatment, and AA/NA attendance from its requirements of Johnston.
The court conducted a hearing in March 2017 to determine a permanency plan for
the children.
II. March 2017 Permanency-Planning-Hearing Testimony
DHS caseworker Sharese Handie testified during the permanency-planning hearing
that she had been assigned the case since September 2016, and that, from that time, Johnston
had four different short-term living arrangements. Caseworker Handie said that she had
visited the trailer home Johnston obtained in February 2017, approximately a month before
the hearing, and that it was appropriate. According to Handie, DHS did not consider
Johnston to have stable housing because she had the trailer only for a month. When asked
if she knew whether Johnston had income “at this time,” Handie answered, “She doesn’t.”
Yet when asked if Johnston “had employment throughout the case,” Handie replied, “She
has.”
Handie further testified that Johnston had completed her psychological evaluation in
June 2016 and had followed up on the recommendations. Johnston also finished a drug-
and-alcohol assessment and was referred to outpatient drug-and-alcohol treatment, which
she completed. Johnston also completed parenting classes. She had been visiting the
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children twice a week but had recently missed because of the flu. Johnston had started a
new round of counseling, but Handie didn’t know the reason. When asked to explain why
Johnston had not made substantial measurable progress, she replied, “Because she just got
another home, and that’s unstable housing. She still doesn’t have a job.” According to
Handie, those were the same issues that started the case.
Handie also testified that Johnston had just texted her that she had gotten married a
few days before the permanency-planning hearing. Handie had not had the opportunity to
do a background check on the person Johnston had married, and that caused her concern.
Handie agreed that Johnston “has diligently worked towards reunifying with the children”
but it would take Johnston another “six months to a year” to get stable enough for the
children to return to her.
On cross-examination, Handie admitted that she did not know the name of
Johnston’s therapist but was aware that the target completion date for the therapy was 17
April 2017. She also admitted several inaccuracies in her court report, including that it was
inaccurate because it did not show that Johnston had completed outpatient therapy. Handie
maintained that Johnston did not have stable housing because she had just moved in. She
conceded that Johnston could complete her counseling and the three additional parenting
classes the court ordered within three months.
DHS called Johnston as a witness. Johnston testified that her husband is Chad
Buckner and admitted that he is a felon. She said that they had permission from their
probation officers to marry and that they chose to get married because they had been best
friends for two years. DHS asked Johnston many questions about her housing throughout
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the case. The testimony is not entirely clear but it appears that Johnston was homeless for
a while, that she lived in Sherwood for four months, that she lived in a place in Ward that
had bed bugs, and that she has a trailer home at her current address in Cabot.
Johnston testified that she has babysitting jobs and sold things online stating, “I know
that’s not considered a job to the courts, I guess, but I have made plenty of money to support
my family. And I have a savings account that I’ve saved up. . . . I’ve been saving every
penny I’ve had while I was homeless.” When asked about her new husband Chad, she said
that he has a felony conviction for theft by receiving in 2014 and spent six months in jail.
She also testified that she fraudulently used a credit card and got a $500 fine and a day of
community service. There was also some questioning related to a misdemeanor terroristic-
threatening charge, for which Johnston said she received one year probation and a large
fine, which had been paid off and the probation “dismissed.”
DHS then questioned Johnston about her health. She testified that she takes
Cymbalta for depression, irritable bowel, and fibromyalgia. She also takes gabapentin,
oxycodone, and tizanidine for pain and Klonopin for severe anxiety. She said that she does
not take the medications when she needs to drive and that she has a husband who can drive.
She testified that she needs $1,440 a month to pay all bills and that she has an
additional $1,060 leftover each month to use for the children. When asked about “being
homeless for a lot of the case was not making it appropriately, correct?,” she replied, “No,
but I was trying to save enough money to be able to come up here and tell you I have
money.” She thought her children could come home “today” even though the children
had been out of her care for over twelve months.
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When DHS asked Johnston about “the grandmother” having custody of B.M., she
expressed concern that all three of the grandmother’s children had “been in trouble with
the law,” that the eldest daughter is a felon, and that B.M. told her during visitation that her
“Nana and PaPa cussed in front of her and scream a lot.” She expressed that “I would rather
[B.M.] come home to me where she belongs and where she wants” but conceded that if
the only choice were between B.M.’s grandmother or a stranger, she would choose the
grandmother. As far as L.J., Johnston testified that she preferred a “Christian foster home”
if given the choice between her current placement with an aunt and uncle and a stranger
and that she wanted L.J. “out of that home.” Related to D.J., she said that he had a “great
Christian family” and that she wished there were more openings in that home.
On cross-examination by the attorney ad litem, Johnston stated that she had been
charged with obstructing government operations and resisting arrest but that those charges
had been dismissed. She also admitted to a felony theft-of-property conviction from 2014
(before this case started). She stated that she had switched primary-care providers because
the judge wanted her to, that she was also being treated at Arkansas Pain Management, and
that her disability application was pending.
On cross-examination by her counsel, Johnston testified about the six-month lease
on the home where she currently resided. The lease was entered into evidence. She
clarified that she had no pending criminal issues, that she had completed her outpatient
treatment, and that she had completed one round of parenting classes and had three classes
left on the second round of parenting classes. She testified about what she had learned from
the parenting classes and that she had missed only one visit with her children because of a
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bowel obstruction yet had made it to recent visits despite having the flu. She said that the
counseling had been beneficial. On further cross- and recross examination it appeared that
Johnston had seen many different therapists in the case.
Chad Buckner, Johnston’s husband, testified that before the marriage he lived with
his parents. He said that he had never been involved in a DHS case before, had no true
findings on the child-maltreatment list, and had visitation with his son from a previous
marriage. He testified that he was on probation for four years for theft by receiving but
would complete probation in November. He said that Johnston would make $150 to $200
from selling things on Facebook and that she made more than him some days. When asked
what would happen if she ran out of things to sell, he said that she had applied for disability
and he has a friend who is a manager at Domino’s Pizza. He said that he graduated high
school with Johnston, that they had not seen each other for a long time, that they are best
friends, and that he proposed about two weeks before they got married. Before that, he
had a relationship with Johnston and her children and had provided money to Johnston.
He denied illegal drug use except as a teenager and was willing to undergo a drug screen
and a hair-follicle test.
Brett Collins testified for DHS. He said that all three children had been placed with
him and his wife (Johnston’s sister Lindsey) at the beginning of the case. He said that the
children were doing “fairly well” but that there was a lot of resentment and discontent. In
his view, D.J. was being deceitful by contacting his mom (Johnston), that things boiled over
at a staffing, and he thought it best that D.J. move to a new home, which he did. Things
with L.J. had been smoother once she realized that the Collinses were not “the monsters
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that we were made out to be” but that B.M. still has “outbursts.” Collins thought B.M.
might do better in a home where she had more one-on-one attention and that she was
attached to her grandmother. He said that he and his wife preferred to adopt L.J.
D.J.’s foster parent, Laura Patterson, testified that he had lived in her home since 5
August 2016. She said that D.J. had been doing very well and that he was welcome to stay
with her and her husband for as long as needed. According to Patterson, D.J. works, is a
straight-A student, and “gets along with everyone.”
Judy Brannen, five-year-old B.M.’s paternal grandmother, testified that she had been
visiting B.M. two hours a week every Sunday but wanted more visitation time. She agreed
that her son, Jesse, could not be paroled to her house if B.M. were to stay there, that she
could follow court orders, and that she would prefer a neutral third party meet Johnston
should visitation be ordered.
D.J. testified that he is seventeen and that he would like to go back to his mother
even though he has had a good time with the Pattersons and they have taken good care of
him. He said that he is supportive of his mother’s marriage to Chad, that Chad is a “great
guy,” that he provides money, and that “not too many men hop into a relationship with
three kids.” He testified that he had been waiting over a year to get the “driver’s
reimbursement” from DHS and that he didn’t understand “why we can’t go back to our
mother.” On cross-examination, he said that family counseling would be beneficial.
The attorney ad litem testified that she had spoken to L.J., and that L.J. did not want
to testify but she wanted the court to know that she wanted to remain in her current
placement with her aunt and uncle. A CASA report was also entered into evidence.
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Jennifer McCain, a licensed master social worker at Centers for Youth and Families,
testified Johnston was transferred to her as a client from a fellow coworker on leave from a
medical issue. She testified that she had been to Johnston’s home and that there was nothing
that had caused her concern. In the two sessions she had with Johnston, McCain thought
that she had been forthcoming, open, honest, and compliant. She explained that the
program was a short-term twelve-week program with a maximum of sixteen weeks, and
that April 17 would be Johnston’s twelfth week in the program.
Following the hearing, the circuit court determined that reunification with Johnston
was not in the children’s best interest and that continuing DHS custody was necessary for
the juveniles’ health and safety. The permanency goal for the oldest child, D.J. (age 17),
was “Another Planned Permanent Living Arrangement (APPLA).” For the middle child,
L.J. (age 14), the goal was a subsidized permanent guardianship with relatives. For the
youngest child, B.M. (age 5), the goal was permanent custody with her grandparents. The
court found that DHS made reasonable efforts to finalize a permanency plan by providing
foster care, drug-and-alcohol assessments, individual counseling, inpatient drug treatment,
parenting, psychological evaluations, home visits, supervised parent-child visits, and hair-
follicle tests. Importantly, the court found that Johnston had not made “significant
measurable progress.” It ordered DHS to make a referral for family counseling with D.J.
and B.M. and relieved the department from providing any further services to Johnston other
than counseling.
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III. Arguments on Appeal
Here, Johnston argues that the circuit court clearly erred when it refused to afford
her three additional months to achieve reunification pursuant to Ark. Code Ann. § 9-7-
338(c) (Repl. 2015), and found that the respective goal changes for the three children were
in their best interest. DHS responds that “Johnston failed to preserve at trial and abandons
on appeal any argument that the circuit court should have found all the elements required
to allow the circuit court to continue the case plan goal of reunification.” It further argues
that the circuit court did not clearly err in changing the goals in the case, and the evidence
supported the conclusion that it would not be in the juveniles’ best interest to return to
Johnston’s custody. The children, through their attorney ad litem, maintain that Johnston
failed to prove by a preponderance of the evidence that she made significant measurable
progress and that the circuit court chose a permanency plan that was most preferred under
the juvenile code.
A. Preservation
We begin with DHS’s contention that Johnston’s arguments are not preserved for
review. The general rule is this: in a civil bench trial, a party may challenge the sufficiency
of the evidence for the first time on appeal. Bohannon v. Robinson, 2014 Ark. 458, at 5, 447
S.W.3d 585, 588. In Gyalog v. Arkansas Department of Human Services, we held that a notice
of appeal that designated a permanency-planning order was sufficient to preserve a challenge
to the permanency-planning order. 2015 Ark. App. 302, at 8, 461 S.W.3d 734, 739.
Gyalog argued that the court’s decision to change the case goal from reunification to
termination and adoption was clearly erroneous, and we characterized that argument as a
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sufficiency challenge to the permanency-planning order. Id. Like Gyalog, Johnston has
appealed the court’s permanency-planning decision and is arguing that there was insufficient
evidence to meet the statutory requirements to change the case-plan goal. She may
therefore make her sufficiency challenges to the permanency-planning decision for the first
time on appeal.
B. Merits
Turning to the merits of Johnston’s sufficiency-based arguments, we review findings
in dependency-neglect proceedings de novo, but we will not reverse the circuit court’s
findings unless they are clearly erroneous. Lamontagne v. Ark. Dep’t of Human Servs., 2010
Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when, although there is evidence
to support it, the reviewing court, based on the entire evidence, is left with a definite and
firm conviction that a mistake has been committed. Id. This court defers to the circuit
court’s evaluation of the credibility of witnesses. Id.
The statute in place at the time of the permanency-planning hearing provides,
(c) At the permanency planning hearing, based upon the facts of the
case, the circuit court shall enter one (1) of the following permanency goals,
listed in order of preference, in accordance with the best interest, health, and
safety of the juvenile:
(1) Placing custody of the juvenile with a fit parent at the permanency
planning hearing;
(2) Returning the juvenile to the guardian or custodian from whom
the juvenile was initially removed at the permanency planning hearing;
(3) Authorizing a plan to place custody of the juvenile with a parent,
guardian, or custodian only if the court finds that:
(A)(i) The parent, guardian, or custodian is complying with the
established case plan and orders of the court, making significant measurable
progress toward achieving the goals established in the case plan and diligently
working toward reunification or placement in the home of the parent,
guardian, or custodian.
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(ii) A parent’s, guardian’s, or custodian’s resumption of contact or
overtures toward participating in the case plan or following the orders of the
court in the months or weeks immediately preceding the permanency
planning hearing are insufficient grounds for authorizing a plan to return or
be placed in the home as the permanency plan.
(iii) The burden is on the parent, guardian, or custodian to demonstrate
genuine, sustainable investment in completing the requirements of the case
plan and following the orders of the court in order to authorize a plan to
return or be placed in the home as the permanency goal; and
(B)(i) The parent, guardian, or custodian is making significant and
measurable progress toward remedying the conditions that:
(a) Caused the juvenile’s removal and the juvenile’s continued removal
from the home; or
(b) Prohibit placement of the juvenile in the home of a parent.
(ii) Placement of the juvenile in the home of the parent, guardian, or
custodian shall occur within a time frame consistent with the juvenile’s
developmental needs but no later than three (3) months from the date of the
permanency planning hearing;
(4) Authorizing a plan for adoption with the department’s filing a
petition for termination of parental rights unless:
(A) The juvenile is being cared for by a relative and the court finds
that:
(i) Either:
(a) The relative has made a long-term commitment to the child and
the relative is willing to pursue guardianship or permanent custody; or
(b) The juvenile is being cared for by his or her minor parent who is
in foster care; and
(ii) Termination of parental rights is not in the best interest of the
juvenile;
(B) The department has documented in the case plan a compelling
reason why filing such a petition is not in the best interest of the juvenile and
the court approves the compelling reason as documented in the case plan; or
(C)(i) The department has not provided to the family of the juvenile,
consistent with the time period in the case plan, such services as the
department deemed necessary for the safe return of the juvenile to the
juvenile’s home if reunification services were required to be made to the
family.
(ii) If the department has failed to provide services as outlined in the
case plan, the court shall schedule another permanency planning hearing for
no later than six (6) months;
(5) Authorizing a plan to obtain a guardian for the juvenile;
(6) Authorizing a plan to obtain a permanent custodian, including
permanent custody with a fit and willing relative; or
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(7)(A) Authorizing a plan for another planned permanent living
arrangement that includes a permanent planned living arrangement and
addresses the quality of services, including, but not limited to, independent
living services and a plan for the supervision and nurturing the juvenile will
receive.
(B) Another planned permanent living arrangement shall be selected
only if:
(i) The department has documented to the circuit court a compelling
reason for determining that it would not be in the best interest of the child to
follow one (1) of the permanency plans identified in subdivisions (c)(1)-(6) of
this section and this subdivision (c)(7);
(ii) The child is sixteen (16) years of age or older; and
(iii) The court makes a judicial determination explaining why, as of
the date of the hearing, another planned permanent living arrangement is the
best permanency plan for the juvenile and the court finds compelling reasons
why it continues to not be in the best interest of the juvenile to:
(a) Return home;
(b) Be placed for adoption;
(c) Be placed with a legal guardian; or
(d) Be placed with a fit and willing relative.
(d) At the permanency planning hearing on a juvenile sixteen (16) years
of age or older, the court shall ask the juvenile his or her desired permanency
outcome, or the attorney ad litem shall enter evidence concerning the child's
wishes.
(e) At every permanency planning hearing the court shall make a
finding on whether the department has made reasonable efforts and shall
describe the efforts to finalize a permanency plan for the juvenile.
(f) A written order shall be filed by the court or by a party or party’s
attorney as designated by the court and distributed to the parties within thirty
(30) days of the date of the hearing or prior to the next hearing, whichever is
sooner.
(g) If the court determines that the permanency goal is adoption, the
department shall file the petition to terminate parental rights within thirty (30)
days from the date of the permanency planning hearing that establishes
adoption as the permanency goal.
Ark. Code Ann. § 9-27-338.
Pursuant to the statute, the preferred goal is for the circuit court to authorize a plan
to place the children back with Johnston if she can show that she is complying with the
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established case plan and court orders, making significant measurable progress, and the
children can be returned within three months. Ark. Code Ann. § 9-27-338(c)(3)(A)–(B).
Johnston asserts that the circuit court erred in finding that she had failed to make
substantial, measurable progress. She further argues that placement pursuant to section 9-
27-338(c)(2), which authorizes the circuit court to create a plan to return the juvenile to
the parent within three months of the permanency-planning hearing, was in her children’s
best interest. In Johnston’s view, the change of the case goal was not in her children’s best
interest because seventeen-year-old D.J. testified that he wanted to be with his mother and
the court could have made reunification and APPLA concurrent goals without affecting
D.J.’s permanency plans. A similar concurrent plan could be made with L.J. because the
subsidized guardianship is lengthy and in the meantime, Johnston could be prepared to have
custody of L.J. within three months. As to B.M., she was not even in her grandparents’
custody at the permanency-planning hearing so it was contrary to her best interest to change
the goal to permanent custody with the grandparents when Johnston was making
meaningful progress and complying with the case plan. The bottom line to Johnston’s
argument is this: permanency for the children would not have been affected by giving her
three additional months to achieve reunification, that is the preferential goal under the
statute, and it is in the children’s best interest.
DHS responds that it was reasonable for the court to conclude it was in the juveniles’
best interest for the case goals to change because “Johnston remained unstable and did not
sufficiently benefit from the services to allow reunification at the [permanency-planning
hearing] or within three months.” D.J. was going to age out of foster care soon. L.J. did
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not want to return to Johnston, and B.M. has had frequent visits with her grandparents and
was bonded to them. The attorney ad litem echoes DHS’s arguments.
There are facts in the record that favor Johnston. She submitted to drug screens and
completed outpatient substance-abuse treatment in November 2016. She attended
visitation with her children. She finished a set of twelve parenting classes and then
completed nine out of twelve of a second round of classes ordered by the court, and the
caseworker testified that the remaining three classes would be completed within three
months. Johnston completed a psychological evaluation and counseling and followed up
on all recommendations, according to the DHS caseworker. Her therapist, Jennifer
McCain, testified that Johnston had been compliant and forthcoming with her and had been
open and honest about the diagnoses in her psychological evaluation. The caseworker
testified that Johnston’s completion of her counseling would occur within three months
should the court grant that additional time.
We hold, however, that the circuit court neither clearly erred in changing the goals
in this case nor in finding that Johnston failed to make “significant measurable progress.”
Johnston had more than one year to achieve stability and was repeatedly homeless for
extended periods throughout the case and had bed bugs and other problems with appropriate
housing. Her employment consisted of selling things on Facebook. The caseworker
testified that the home could not be considered “stable” until Johnston had it for at least six
months and that Johnston needed six more months or a year to become stable. She married
a felon, Chad Buckner, a few days before the permanency-planning hearing and did not
inform DHS of the marriage. The record shows that Johnston had multiple medical issues—
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depression, anxiety, and pain—that require multiple medications impacting her ability to
supervise the children if they were returned to her custody. She had yet to complete all of
her counseling and parenting classes that the court had ordered. There was evidence that
Johnston was unstable and did not sufficiently benefit from the services DHS provided even
after one year of services. A parent’s overtures toward participating in the case plan or
following the orders of the court in the months or weeks immediately preceding the
permanency-planning hearing are insufficient grounds for authorizing a plan to return or be
placed in the home as the permanency plan. Ark. Code Ann. § 9-27-338(A)(ii).
The court also did not err in finding that reunification with Johnston was not in the
children’s best interest. Johnston did not maintain safe and appropriate housing throughout
the case and was homeless much of the time. Even though she had leased a home a month
before the permanency-planning hearing, the court could conclude that she was not likely
to maintain that housing given her past behavior and history of moving frequently to
housing that was temporary and often unsafe for juveniles. She also had a history of
instability with various criminal charges, which was the reason the children were taken into
care. The children were doing well in their placements, and the court could find a risk of
harm should they be returned to Johnston’s custody based on her past behavior. See Bearden
v. Ark. Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001) (potential-harm inquiry
is one of the many factors that a court may consider in a best-interest analysis); see also Dowdy
v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, at 12, 314 S.W.3d 722, 728 (circuit
court not required to find that actual harm would result or to affirmatively identify a
potential harm).
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IV. Conclusion
After reviewing the entire record, we are not left with a definite and firm conviction
that a mistake was committed.
Affirmed.
GLOVER and VAUGHT, JJ., agree.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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