Moore v. Ark. Dep't of Human Servs. ( 2015 )

Cite as 2015 Ark. App. 87
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-899
Opinion Delivered FEBRUARY 11, 2015
LINDA MOORE
APPELLANT APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. JV-13-173]
ARKANSAS DEPARTMENT OF HONORABLE BARBARA HALSEY,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Linda Moore appeals the August 2014 order of the Craighead County
Circuit Court that terminated her parental rights to her two children: son RA born in
October 2002 and daughter AD born in March 2006.1 Appellant contends that neither of the
two asserted grounds for terminating her parental rights was proved by clear and convincing
evidence. Appellant does not challenge the finding that it was in the children’s best interest
to terminate parental rights. The Department of Human Services (“DHS”) and the children’s
attorney ad litem filed separate briefs, asserting that termination of her parental rights was
correct, not clearly erroneous, and should be affirmed. After conducting a de novo review,
we affirm.
1
The father of each child, RA’s putative father Randy Arnold and AD’s legal father
Akot Acuil, also had parental rights terminated. Neither father participated in the DHS case,
and neither father appeared for the termination hearing. Each was deemed to have abandoned
his child. Neither father is part of this appeal.
Cite as 2015 Ark. App. 87
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). At least one statutory ground must exist,
in addition to a finding that it is the child’s best interest to terminate parental rights; these
must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2013);
M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997).
DHS alleged two grounds against appellant. The first ground was the “failure to
remedy” ground, which is premised on Arkansas Code Annotated section 9-27-
341(b)(3)(B)(i)(a):
That a juvenile has been adjudicated by the court to be dependent-neglected and has
continued to be out of the custody of the parent for twelve (12) months and, despite
a meaningful effort by the department to rehabilitate the parent and correct the
conditions that caused removal, those conditions have not been remedied by the
parent.
The other ground was the “subsequent other factors or issues” ground found at Arkansas
Code Annotated section 9-27-341(b)(3)(B)(vii)(a). In making the “best interest”
determination, the trial court was 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. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1; Pine v. Ark.
Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703.
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. Anderson v. Douglas, 310
Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding
that the disputed fact was proved by clear and convincing evidence is clearly erroneous.
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Cite as 2015 Ark. App. 87
J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility
determinations are left to the fact finder, here the trial court. Moiser v. Ark. Dep’t of Human
Servs., 95 Ark. App. 32, 233 S.W.3d 172 (2006).
The intent behind the termination-of-parental-rights statute is to provide permanency
in a child’s life when it is not possible to return the child to the family home because it is
contrary to the child’s health, safety, or welfare, and a return to the family home cannot be
accomplished in a reasonable period of time as viewed from the child’s perspective. Ark.
Code Ann. § 9-27-341(a)(3) (Supp. 2013). Even full compliance with the case plan is not
determinative; the issue is whether the parent has become a stable, safe parent able to care for
the child. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391
(2005); Cole v. Ark. Dep’t of Human Servs., 2012 Ark. App. 203, 394 S.W.3d 318; Tucker v.
Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. A parent’s past behavior is
often a good indicator of future behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark.
App. 249, 427 S.W.3d 160. Termination of parental rights is an extreme remedy and in
derogation of a parent’s natural rights; however, parental rights will not be enforced to the
detriment or destruction of the health and well-being of the child. Pine v. Ark. Dep’t of
Human Servs., supra.
In this case, appellant’s children RA and AD were removed from her custody in early
May 2013 based on inadequate supervision and her drug use. There is no dispute that the
children remained out of her custody for at least a year, given that the termination hearing was
not conducted until August 2014. There is no dispute that DHS provided meaningful effort
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to rehabilitate appellant; she was given drug screens and presented an opportunity to complete
inpatient rehabilitation. On the “failure to remedy” ground, appellant argues that there lacked
clear and convincing evidence that she failed to remedy the causes for her children’s removal.
Appellant contends that at the end of this case plan, she no longer had a drug problem and
that the trial court clearly erred in finding otherwise. We disagree with her and affirm on this
ground without reaching the merits of the other ground.
The event that precipitated an emergency taking of these children was appellant’s
failure to pick up her son RA from school. As evening approached, RA was taken to the
police station, and when appellant finally showed up accompanied by her daughter AD,
appellant admitted to having ingested illegal drugs. She tested positive for THC and
methamphetamine. Appellant had a history of protective-service cases with these and her
other four children. The other four children were ultimately placed in three different custody
or guardianship situations.
Following the adjudication of her children as dependent-neglected, appellant was
ordered to complete certain requirements, the primary requirement to submit to and pass drug
tests and become a stable, appropriate, drug-free parent. Over the following months,
appellant was either in jail, she failed to submit to drug testing, or she tested positive for drugs.
When she was referred to inpatient rehabilitation in September 2013, appellant was discharged
within a week for noncompliance. By early February 2014, appellant was back in jail, facing
a significant jail term for felony forgery and a drug-court violation.
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In March 2014, DHS filed a petition to terminate parental rights, contending that
appellant had not remained drug free and had not completed a drug-treatment program as to
the “failure to remedy” ground. As to the “subsequent issues” ground, DHS alleged that
appellant had not been employed and had periods of incarceration up to and including the
present time. At the permanency-planning stage, DHS was deemed to have provided
reasonable efforts, including provision of random drug screens and referrals. Appellant was
found not to have made any substantial, measurable progress. The termination hearing was
held on August 1, 2014, in the Craighead County Circuit Court.
At the hearing, a family service worker, Terri Blanchard, testified for DHS. She
recited the causes for removal of RA and AD, as noted above. She recited a history of
appellant having open family-services cases, the persistent problem being drug use.
Blanchard’s testimony showed concern for appellant’s failure to work toward fixing her drug
problem and noted her unavailability to work toward reunification due to being in and out
of jail for various offenses.2
Blanchard provided details about appellant’s drug tests. Appellant passed a screen in
late May 2013 but then failed to produce urine for two tests in July 2013. Appellant had three
positive tests for meth between August and early September 2013. Between October and
2
Blanchard recited appellant’s periods of incarceration: June 1 and 2, 2013 for driving
on a suspended license; June 7, 2013 also for driving on a suspended license; June 24 through
29, 2013 for failure to appear; July 5 and 6, 2013 for driving on a suspended license; August
7 through 12, 2013 for failure to appear; August 14 through 27, 2013 for driving on a
suspended license; December 30, 2013 through January 20, 2014 for felony forgery and theft
by receiving; and February 7 through July 23, 2014 for felony forgery and a drug-court
violation.
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December 2013, appellant repeatedly failed to produce urine for testing purposes. She,
however, did have two negative drug tests, in February and July 2014, on dates that were on
either side of a lengthy incarceration. Blanchard explained that there were few home visits
because, when she was not in jail, appellant lived in several different places. Appellant was,
at present, living with her mother—who had custody of another of appellant’s
children—because she had just been paroled the week beforehand. This was not going to be
a permanent living situation, nor was it large enough to accommodate RA and AD.
Blanchard did give credit to appellant for having completed parenting classes and watching
“The Clock is Ticking” video.
Blanchard stated that the children were adoptable with identified families interested in
adoption. RA and AD’s foster placement had at least one sibling in it and was among the
families interested in adoption. The family service worker opined that it was in their best
interest for termination of parental rights to take place.
Appellant testified, in agreement that she was incarcerated for significant periods of
time, but she claimed to have taken anger-management, stress-management, and substance-
abuse classes in jail. Appellant offered reasons, other than non-compliance, for her discharge
from inpatient rehabilitation, but she acknowledged that “it took me going to prison to have
this wake-up call.” She said that since she had been released on parole in the last week, she
was looking for work at fast food restaurants, although she admittedly never had a steady job
or a stable place to live.
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Appellant claimed that she could have taken care of her children even though she was
a drug addict. She admitted to intentionally avoiding drug testing while she was using. She
stated her belief, though, that she was not a drug addict any more. As to her claimed drug-
treatment program during her most recent stint in jail, she admitted that she was released early
and did not finish.
The attorney ad litem did not present any witnesses but urged the trial court to
terminate the parental rights of the parents. The attorney ad litem agreed with DHS that
appellant had not, after the children were out of her custody for fifteen months, remedied the
primary reason for removal, that being drug use.
The trial court found that appellant’s time had run out to remedy the situation. The
trial court complimented appellant on recognizing that she needed a wake-up call while in
jail but expressed only hope that appellant could actually be done with drug use. The trial
court found that the grounds were proved by clear and convincing evidence, as well as that
it was in the children’s best interest to terminate parental rights. A timely notice of appeal
followed the order terminating her rights.
As stated, appellant does not challenge whether termination of her parental rights is in
RA and AD’s best interest. Consequently, we need not address that issue. Benedict v. Ark.
Dep’t of Human Servs., 96 Ark. App. 395, 242 SW.3d 305 (2006). Likewise, if the trial court’s
finding of either of the two alleged grounds is affirmable, we need not discuss the alternative
ground to support termination. Loveday v. Ark. Dep’t of Human Servs., 2014 Ark. App. 282,
435 S.W.3d 504. We hold that the trial court finding that appellant failed to remedy the
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causes for removal is supported by clear and convincing evidence. We, therefore, do not
address the “subsequent issues or factors” argument because only one ground is necessary to
terminate parental rights. Bowman v. Ark. Dep’t of Human Servs., 2012 Ark. App. 477.
Appellant was an admitted active methamphetamine drug addict who nonetheless
professed that she was not so impaired by drugs that she could not care for her children. Her
only two negative drug tests were on either side of another lengthy incarceration. Appellant’s
self-serving statement that she did not believe she had any addiction and was not interested
in drugs anymore need not have been believed by the trial court. See Long v. Ark. Dep’t of
Health & Human Servs., 369 Ark. 74, 250 S.W.3d 560 (2007). Although recent progress and
efforts to comply in the months and weeks leading up to a termination hearing may and
should be taken into consideration, it is not a bar to termination of parental rights when a
parent fails to demonstrate an ability to remain sober in an unstructured environment for
significant period of time. See Jessup v. Ark. Dep’t of Human Servs., 2011 Ark. App. 463, 385
S.W.3d 304. Our termination of parental rights statute bears this out in Arkansas Code
Annotated section 9-27-341(a)(4)(A):
A parent’s resumption of contact or overtures toward participating in the case plan or
following the orders of the court following the permanency planning hearing and
preceding the termination of parental rights hearing is an insufficient reason to not to
terminate parental rights.
There is clear and convincing evidence that appellant failed to remedy the causes for her
children’s removal. See Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, ___
S.W.3d ___; Loveday, supra; Guiterrez v. Ark. Dep’t of Human Servs., 2012 Ark. App. 575, 424
S.W.3d 329.
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Affirmed.
GLADWIN, C.J., and VIRDEN, J., agree.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
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