Juli Littleton and Ricky Littleton v. Arkansas Department of Human Services and Minor Children ( 2023 )

Cite as 2023 Ark. App. 411ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-96
JULI LITTLETON AND RICKY Opinion Delivered September 27, 2023
LITTLETON
APPELLANTS APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. FORT SMITH DISTRICT
[NO. 66FJV-20-441]
ARKANSAS DEPARTMENT OF HONORABLE SHANNON L. BLATT,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Juli Littleton and Ricky Littleton appeal the Sebastian County Circuit Court’s
termination of their parental rights to their children MC1 (dob 3/24/08), MC2 (dob
5/15/12), and MC3 (dob 8/4/17).1 Juli’s parental rights to her child with Brandon Stanley,
MC4 (dob 12/01/15), were also terminated.2 On appeal, Juli and Ricky do not challenge
the grounds for termination but argue only that it was not in the children’s best interest for
their parental rights to be terminated because there was a less restrictive alternative through
placement with a relative. We affirm.
1
Ricky is listed as the putative father of MC3 throughout the case, but MC3’s birth
certificate naming Ricky as the father was part of the record.
2
Stanley’s parental rights to MC4 were also terminated in this proceeding, but Stanley
is not a party to this appeal.
I. Facts
Juli and Ricky are divorced. Ricky is serving a twenty-year prison sentence in the Arkansas
Department of Correction. Juli is married to Jerry Ibison, and the children lived with her
and Ibison. On December 11, 2020, the Arkansas Department of Human Services (DHS)
responded to a request for a welfare check. Juli reported to the family-service worker that
she believed Ibison was touching MC3 inappropriately; that Ibison was drugging her; and
that Ibison had been violent with her, MC1, and MC2. Juli said that Ibison had told her
that if she tried to leave him that he would kill her. MC1 and MC2 reported acts of physical
abuse by Ibison. The family-service worker noted that Juli would not disclose complete
details of the incidents to officers; that she had left MC3 alone with Ibison after accusing
Ibison of touching MC3 inappropriately; that there were multiple incidents of domestic
violence that had been witnessed by the children, including at least one in which MC1 had
been choked, but the police were not called; and Juli tested positive for amphetamines and
methamphetamine. Ricky was incarcerated in the Franklin County jail at the time the
children were removed from Juli’s custody. DHS exercised a seventy-two-hour hold on the
children because Juli and Ibison presented an immediate danger to their health and physical
well-being. An ex parte emergency order placing the children in the custody of DHS was
entered on December 15.
A probable-cause order was entered on January 7, 2021, finding there was probable
cause that the conditions causing removal continued, and it was in the children’s best
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interest to remain in DHS custody. The circuit court ordered DHS to complete an ICPC
home study on Ricky’s mother, Donna Schrouf, and his sister, Haley Schrouf.
The children were adjudicated dependent-neglected on the basis of parental unfitness
in an order filed on February 26. The parties stipulated to the circuit court’s finding that
the allegations in the petition and affidavit were substantiated by proof.
A review order was filed on June 22; while the goal of the case remained reunification,
the circuit court ordered that the children remain in DHS custody due to parental unfitness.
The circuit court found that DHS had complied with the case plan and its orders and had
made reasonable efforts to provide family services and finalize a permanency plan for the
children. It found that Juli was “somewhat compliant” with the case plan in that she had
begun services, but Ricky was not compliant—he was incarcerated and had not completed
any services. A second review order was filed on October 12. Custody of the children
remained with DHS due to parental unfitness, but the goal of the case remained
reunification. The circuit court found that DHS had complied with the case plan and its
orders and had made reasonable efforts to provide family services and finalize a permanency
plan for the children. DHS was again ordered to initiate ICPC home studies on Donna and
Haley Schrouf. Juli was again found “somewhat compliant” with the case plan, but Ricky
was not compliant due to his incarceration.
A permanency-planning order was filed on February 16, 2022. In this order, the
circuit court changed the goal of the case to adoption, with a concurrent goal of
reunification, because Ricky and Juli had not made substantial, measurable progress toward
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the goals of the case plan. The circuit court noted that Juli was not compliant with the case
plan and court orders because she had no housing and no proof of income; although she
had completed nurturing-parenting classes, she had not completed the active-parenting-of-
teens class and was not compliant with her counseling. The circuit court found Ricky was
not compliant with the case plan and court orders, noting that he was still incarcerated, and
while he had completed some classes, he had no prospect of being fit for custody any time
in the near future. The circuit court noted that the trial home placement with Juli had failed,
and it ordered DHS to again submit ICPC home studies on Donna and Haley Schrouf,
noting that if the relatives did not wish to participate in the ICPC process, DHS should
notify all parties within three days.
DHS filed a petition for termination of parental rights on June 2. Grounds for
termination alleged by DHS for both Juli and Ricky were twelve-month failure to remedy;
subsequent factors; and aggravated circumstances. DHS also alleged that Ricky was
incarcerated in a criminal proceeding for a period of time constituting a substantial period
of the children’s lives.
A hearing on the petition for termination of parental rights was held on October 7
and 24. An order terminating Juli’s and Ricky’s parental rights on all bases alleged by DHS
was filed on November 16. A memorandum letter from the Texas Department of Family
and Protective Services dated October 27, 2022, stated that Donna Schrouf had been
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identified as a possible placement for the children, that four attempts had been made to
contact her to no avail, and that the ICPC foster-home inquiry would be closed.3
II. Standard of Review
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 children. Collier v. Ark. Dep’t of Hum. Servs., 2022 Ark.
App. 100, 641 S.W.3d 67. Termination-of-parental-rights cases are reviewed de novo.
Swanson v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 355. Termination of parental rights is
a two-step process requiring a determination that the parent is unfit and that termination is
in the best interest of the child. Id. 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 that the child will be adopted and of the potential harm cause by returning
custody of the child to the parent. Id.The burden of proof is clear and convincing evidence, which is the degree of proof
that will produce in the finder of fact a firm conviction regarding the allegation sought to be
established. Id. We will not reverse the circuit court’s ruling unless its findings are clearly
erroneous. Isom v. Ark. Dep’t of Hum. Servs., 2022 Ark. App. 159. A 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. Id. In
determining whether a finding is clearly erroneous, due deference is given to the circuit
3
This was the second ICPC study requested on Donna in Texas.
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court’s opportunity to judge the credibility of witnesses. Gascot v. Ark. Dep’t of Hum. Servs.,
2022 Ark. App. 57.
III. Discussion
Ricky and Juli make the same argument on appeal—the circuit court erred in
terminating their parental rights because it was not in the children’s best interest.
Specifically, they contend the circuit court was clearly erroneous because there was a less
restrictive alternative—placement with a relative—than termination. They rely on this court’s
decisions in Borah v. Arkansas Department of Human Services, 2020 Ark. App. 491, 612 S.W.3d
749, and Clark v. Arkansas Department of Human Services, 2019 Ark. App. 223, 575 S.W.3d
578, to support their contention that the circuit court erred in terminating their parental
rights instead of considering placement with Ricky’s mother, Donna Schrouf. 4
In determining whether termination is in the best interest of the children, the circuit
court must consider the entire history of the case and all relevant factors in the case,
including the likelihood of adoption and the potential harm that would be cause by
returning the children to the custody of the parents. Goforth v. Ark. Dep’t of Hum. Servs., 2023
Ark. App. 233, 666 S.W.3d 138. Adoptability and potential harm are merely two factors to
be considered and need not be established by clear and convincing evidence; other
considerations may include the preservation of the children’s relationship with a
4
While the circuit court also ordered DHS to obtain an ICPC home study on Ricky’s
sister, Haley Schrouf, there is no evidence this was done. However, neither Ricky nor Juli
argues on appeal that this was erroneous; rather, they focus on the lack of an ICPC home
study for Donna only.
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grandparent, the loss of child support from a parent, whether a less drastic measure could
be employed, whether continued parental contact would be beneficial to the children if or
when the children are living with a relative, and whether the children are living in continued
uncertainty. Id. (citing Phillips v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 383, 585 S.W.3d
703).
DHS argues, citing Martin v. Arkansas Department of Human Services, 2022 Ark. App.
508, 657 S.W.3d 881, and Coulter v. Arkansas Department of Human Services, 2021 Ark. App.
398, 636 S.W.3d 377, that Ricky and Juli’s least-restrictive-alternative arguments are not
preserved because they failed to designate the permanency-planning order and hearing in
their notices of appeal. We disagree. In those cases, the goal of the case was changed to
adoption with no concurrent goal at the permanency-planning hearing; this court held that
in order to make an argument regarding the least restrictive placement, the appellants had
to have designated the permanency-planning order and hearing because that was where the
goal of the case was changed to adoption. This case is more analogous to Clark, supra, with
regard to the preservation issue. In Clark, the circuit court set concurrent goals at the
permanency-planning hearing—reunification with a concurrent goal of custody and
adoption. Here, the circuit court also set concurrent goals of adoption and reunification in
the permanency-planning order, and it again ordered DHS to submit ICPC home studies on
Donna and Haley Schrouf. The Clark court held that there were two permanency paths
going into the termination hearing, and Clark was “not procedurally barred from arguing
that termination was not in the children’s best interest because an alternative and satisfactory
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relative placement was available for the circuit court to consider when it ordered the
termination.” 2019 Ark. App. 223, at 5, 575 S.W.3d at 581. Because there were two
concurrent goals available to the court going into the termination hearing, we hold that
Ricky and Juli’s arguments regarding a least restrictive placement is not procedurally barred.
Ricky and Juli assert that the circuit court was clearly erroneous in proceeding with
termination when the issue of a less restrictive placement with Donna Schrouf was still
outstanding. A home study on Donna’s home was initiated in 2021, but a memo from the
Texas Department of Family and Protective Services dated May 4, 2021, stated that the case
was closed because Donna was not moving forward with foster-care licensure at that time.
The reason given was that the children were to begin having weekend visitation with Juli,
and Donna was not willing to travel back and forth to Arkansas for visitation.
Ricky and Juli fault DHS for not moving more quickly for a second ICPC home
study—which was ordered by the circuit court in the second review order and again in the
permanency-planning order—until September 2022, when the termination hearing was
scheduled for October 2022. They contend that if DHS had timely complied with the orders
for a home study on Donna’s home, it could have been ready for the circuit court’s
consideration at the termination hearing. However, a second memorandum from the Texas
Department of Family and Protective Services dated October 27, 2022 (after the termination
hearing was held but before the termination order was issued), was filed of record in the
case, and it noted that the second ICPC foster-home inquiry was being closed because
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Donna Schrouf failed to respond to phone calls, e-mails, and letters regarding the home
study.
The family-service worker was questioned at the termination hearing about the delay
in seeking a second home study on Donna’s home. She testified that DHS was missing
information and was unable to reach Donna to obtain it, resulting in the delay requesting a
second home study. Donna admitted at the termination hearing that she had not attempted
to contact DHS for nine or ten months but that DHS had contacted her several months
before the termination hearing, and she told them that she was willing to take the children
until “this got straightened out.” She claimed that DHS had never requested additional
information from her. Donna testified that she has a relationship with her grandchildren;
however, MC1 testified that she did not want to live with her grandmother because she was
afraid that her parents would try to take her from Donna. Donna testified that she would
be willing to adopt all four children, but when she was asked if she was willing to keep them
away from Ricky until the children were adults, she stated that she did not know how she
would do that if Ricky was living close to her, and she could not say for sure that he would
not be at her house at some time.
In the termination order, the circuit court noted appellants’ arguments regarding
Clark and Borah but distinguished those cases from the present case. It found that in Clark,
there was an approved home study, and there was not an approved home study in the present
case. Although Ricky and Juli assert that DHS should bear the blame for the failure to obtain
a timely home study, there was conflicting evidence as to why it was delayed, with DHS
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claiming that it needed more information and was unable to contact Donna, and Donna
stating that DHS never contacted her. Witness credibility is for the finder of fact. Gascot,
supra. It appears that the circuit court did not fault DHS for the late submission of the
second home study. The circuit court found that in Borah, the relative had been repeatedly
reaching out to the department, which was not the case here. In both of those cases, there
were strong family bonds, which were not present here.
In Best v. Arkansas Department of Human Services, 2020 Ark. App. 485, at 23–24, 611
S.W.3d 690, 704 (citations omitted), this court held that
a circuit court is permitted to set termination as a goal even when a relative is available
and requests custody. This is because the Juvenile Code lists permanency goals in
order of preference, prioritizing a plan for termination and adoption unless the
juvenile is already being cared for by a relative, the relative has made a long-term
commitment to the child, and termination of parental rights is not in the child’s best
interest. Our decision in Clark did not change this. In Clark, we reversed the
termination order acknowledging the statutory preference that a juvenile be placed
with a relative in dependency-neglect cases. Additionally, we said that each
termination-of-parental-rights case is decided on a case-by-case basis, and we held that
the circuit court’s decision to forgo relative placement as a permanency goal for the
children in Clark was clearly erroneous given the facts.
Furthermore, the relative preference outlined by the legislature must be balanced with the
individual facts of each case. Knox v. Ark. Dep’t of Hum. Servs., 2023 Ark. App. 203. When
the parent demonstrates stability and a reasonable hope for reunification, there is no harm
in waiting a little longer before terminating parental rights; but when that stability and
reasonable hope for reunification are not present, there is no reason to further delay
permanency through termination and adoption. Id.10
In the present case, none of the children were being cared for by Donna Schrouf, and
it was questionable whether she could make a long-term commitment to the children.
Additionally, one of the grounds found by the circuit court for termination was aggravated
circumstances because there was little likelihood that services would result in successful
reunification. Neither Juli nor Ricky appealed that determination. As this court held in
Knox, there was no reason to delay permanency for the children through termination and
adoption if there was no reasonable hope for reunification. We hold that the circuit court’s
decision to terminate Ricky’s and Juli’s parental rights was not clearly erroneous.
Affirmed.
THYER and WOOD, JJ., agree.
James & Streit, by: Jonathan R. Streit, for separate appellant Juli Littleton.
Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for separate appellant
Ricky Littleton.
Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.
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