Furnish v. Arkansas Department of Human Services , 2017 Ark. App. LEXIS 584 ( 2017 )

Cite as 2017 Ark. App. 511
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-17-40
NATASHA MICHELLE FURNISH Opinion Delivered October 4, 2017
APPELLANT
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
V. WESTERN DISTRICT
[NO. 16JJV-15-410]
ARKANSAS DEPARTMENT OF HONORABLE CINDY THYER,
HUMAN SERVICES and MINOR JUDGE
CHILDREN
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Natasha Furnish appeals a Craighead County Circuit Court order
terminating her parental rights to three of her children, B.M., A.M., and C.M.1 More
specifically, she challenges both the trial court’s findings of statutory grounds and its best-
interest determination. We affirm.
I. Facts and Procedural History
The Department of Human Services (DHS) exercised a seventy-two-hour hold on
R.M., B.M., A.M., and C.M. on November 10, 2015, at the direction of the Cleburne
County Circuit Court at a Family in Need of Services (FINS) hearing. The court directed
1
One of her children, R.M., was initially part of the dependency-neglect proceedings
but turned eighteen prior to termination; therefore, Furnish’s rights were not terminated to
that child. Another child, M.M., was born during the pendency of the proceedings and is the
subject of a separate dependency-neglect action.
Cite as 2017 Ark. App. 511
the hold after Furnish had tested positive for amphetamines, methamphetamine, and
benzodiazepine. Although the hold was taken in Cleburne County, DHS filed its
dependency-neglect petition in Craighead County where Furnish was a resident.
The children were subsequently adjudicated dependent-neglected on December 11,
2015, based on parental unfitness due to Furnish’s drug usage.2 The court ordered Furnish
to remain drug free, to submit to random drug screens, and to submit to a drug-and-alcohol
assessment and follow the recommendations thereof. She was further ordered to participate
in and complete parenting classes; obtain and maintain clean, safe, and stable housing with
working utilities; obtain and maintain stable income or employment; and to provide DHS
with a budget indicating sufficient income or resources to meet the needs of the family.
At a review hearing in May 2016, the court continued the goal of the case as
reunification, finding that Furnish had only partially complied with the case plan. Specifically,
the court found that she had not participated in parenting classes, remained drug free, obtained
appropriate housing, obtained stable employment, or prepared or submitted a budget. The
court also noted that Furnish had missed two drug-and-alcohol-assessment appointments as
well as her psychological evaluation. The court ordered her to attend inpatient-drug
treatment.
2
The court also found that Max McKinney, the noncustodial parent, had contributed
to the dependency-neglect. McKinney is the biological father of R.M., B.M., A.M., and
M.M. He is not the biological father of C.M., although the court ultimately found him to
be in loco parentis to C.M. McKinney, who was caring for A.M. and C.M. at the time of the
72-hour hold, also tested positive for illegal substances. His rights were not terminated by the
order on appeal; thus, he is not a party to this appeal.
2
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A second review hearing was held on July 27, 2016. The court again found that
Furnish was not cooperating or complying with the case plan, continuing the same failures
from the last review hearing: she still had not participated in parenting classes, obtained
appropriate housing or stable employment, or prepared a budget. With regard to sobriety,
the court was unable to determine if she had remained drug free because she had not
submitted to random drug testing. The court noted that Furnish was admitted to a 120-day
inpatient-drug-rehabilitation program, but she left of her own volition after completing only
twelve days.
On September 9, 2016, less than one year from the date of removal, DHS filed a
petition to terminate Furnish’s parental rights to B.M., A.M., and C.M., alleging the
subsequent-other-factors ground for termination. DHS alleged that Furnish had failed to
complete her parenting classes; did not have stable employment; had not completed a budget
indicating sufficient income; had sporadic and tardy visitation; had not submitted to random
drug screens since July 2016; had left inpatient-drug rehabilitation before its completion; and
had recently tested positive for meth and opiates. In regard to the recent positive tests, DHS
alleged that Furnish had given birth to another child, M.M., who tested positive for opiates
at birth.
The court held a termination hearing on October 11, 2016. After the hearing, the trial
court entered an order terminating Furnish’s parental rights to the three children. The court
found that DHS had proved by clear and convincing evidence the subsequent-other-factors
ground for termination. The court then held that termination was in the best interest of the
children, finding that the children are adoptable and that there was potential harm to the
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children if returned to Furnish’s custody. Furnish appeals the trial court’s order terminating
her parental rights, challenging the court’s findings on both statutory grounds and best
interest.
II. Standard of Review
The rights of natural parents are not to be passed over lightly. The termination of
parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox
v. Ark. Dep’t of Human Servs., 2014 Ark. App. 666, 448 S.W.3d 735. As a result, there is a
heavy burden placed on the party seeking to terminate the relationship. Id. In order to
terminate parental rights, a trial court must find by clear and convincing evidence that
termination is in the best interest of the juvenile, taking 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) (Repl. 2015). The order terminating parental rights must also be based on a showing of
clear and convincing evidence as to one or more of the grounds for termination listed in
section 9-27-341(b)(3)(B). Clear and convincing evidence is defined as that degree of proof
that will produce in the fact-finder a firm conviction as to the allegation sought to be
established. Posey v. Ark. Dep’t of Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007).
The appellate court reviews termination-of-parental-rights cases de novo but will not
reverse the trial court’s ruling unless its findings are clearly erroneous. Dade v. Ark. Dep’t of
Human Servs., 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire evidence is left
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with a definite and firm conviction that a mistake has been made. Id. In determining whether
a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the
trial court to judge the credibility of witnesses. Id.
III. Statutory Grounds
The court in this case terminated Furnish’s parental rights based on the subsequent-
other-factors ground. The subsequent-other-factors ground states that parental rights may be
terminated when
other factors or issues arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that placement of the juvenile in the custody of
the parent is contrary to the juvenile's health, safety, or welfare and that, despite the
offer of appropriate family services, the parent has manifested the incapacity or
indifference to remedy the subsequent issues or factors or rehabilitate the parent's
circumstances that prevent the placement of the juvenile in the custody of the parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
Here, the trial court based its statutory-ground determination specifically on Furnish’s
failure to comply with the case plan; her failure to timely and consistently attend visitation
with her children; and her failure to remain drug free or obtain treatment for her drug
addiction despite her pregnancy, which resulted in her child having been born with drugs in
his system. The record, as evidenced below, supports this conclusion.
From the outset, the court ordered Furnish to comply with the case plan. We have
consistently held that a lack of compliance with the case plan and court orders supported
termination under the subsequent-other-factors ground. See Cotton v. Ark. Dep’t of Human
Servs., 2012 Ark. App. 455, at 11, 422 S.W.3d 130, 138. Throughout the proceedings, the
court repeatedly found Furnish noncompliant with the directives of completing parenting
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classes,3 having stable employment, and completing a budget. DHS also offered proof that
Furnish had difficulty attending visitations, including failing to attend without notifying the
department in advance of her absence, and that she had not visited with the children since
entering rehabilitation on September 22, 2016. Furnish explained her sporadic visitation with
the children, claiming that she had difficulty contacting her family services worker and that
there were times the children were not available due to sickness or vacation. She stated that
she was late to visits because she had to rely on others for transportation since she did not have
a driver’s license. However, the court was not obligated to accepted her explanations and was
free to assess the credibility of the evidence. See Smith v. Ark. Dep’t of Human Servs., 2017 Ark.
App. 368, at 12, 523 S.W.3d 920, ___. Thus, the trial court did not clearly err in its findings
concerning compliance with the case plan and visitation.
Additionally, the court found Furnish’s failure to remain drug free or obtain drug
treatment constituted a subsequent other factor. In this regard, we note that Furnish’s drug
usage was the cause of the removal. We have previously held that the reason for the initial
removal cannot constitute grounds for termination as a subsequent other factor. See Jones v.
Ark. Dep’t of Human Servs., 2016 Ark. App. 615, at 6, 508 S.W.3d 897, 900. However, we
have also held that a parent’s lack of compliance with the case plan and court orders, including
a failure to submit to drug screens and testing positive for drugs, supports a grant of
termination of parental rights under the “subsequent-other-factors” ground. Cotton, supra.
3
Furnish admitted that she had not completed parenting classes but did report having
recently taken two parenting classes.
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In the instant case, the court ordered Furnish to submit to random drug screens from
the outset. Furnish failed several drug screens at the beginning of the case; later, DHS was
unable to verify her drug usage (or lack thereof) because Furnish failed to submit to drug
screens as ordered. DHS also raised serious questions concerning the legitimacy of Furnish’s
compliance with drug screens because at one point there was an allegation by B.M. that
Furnish was using B.M.’s urine to test negative.4 Perhaps, most importantly, seven months
into this dependency-neglect action, Furnish gave birth to a child that tested positive for
opiates at the time of delivery. Furnish admitted using drugs during the pendency of the case
and during her pregnancy with M.M. However, she testified that she could not understand
why she had tested positive for methamphetamine after M.M.’s birth, but M.M. had not.
Additionally, Furnish was ordered to submit to a drug-and-alcohol assessment. She
initially missed two appointments for the drug-and-alcohol assessment as well as an
appointment for her psychological assessment. She eventually completed the drug-and-alcohol
assessment in July 2016—approximately seven months into the dependency-neglect
proceedings, but she still had not completed a psychological evaluation as of the date of the
termination hearing. Furnish admitted that she missed two drug evaluations but alleged both
were honest mistakes because of misunderstandings.
Furnish was ordered to attend and complete inpatient-drug treatment. She failed to
complete her first stint in inpatient-drug rehabilitation, leaving voluntarily prior to
completion. However, at the time of the termination hearing, Furnish had enrolled in a six-
month drug-rehabilitation program. She stated that she was set to complete the program in
4
Furnish adamantly denied using B.M.’s urine to pass her drug screens.
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March 2017 but that the program would allow her to graduate after 120 days and to stay on
the property and work to get her children back. Additionally, Furnish reported that she
recently had been attending faith-based substance-abuse counseling.
Based on the foregoing, the court had before it ample evidence to support its statutory-
ground determination. Furnish’s failure to follow the case plan and her demonstrated lack of
motivation to resolve her substance-abuse issues until after the termination petition had been
filed demonstrate a clear indifference to remedying the circumstances preventing the
placement of the children in her custody. While the court considered Furnish’s failure to
remain drug free or obtain treatment for her drug addiction in its analysis, it did not solely rely
on her continued drug usage to support its conclusion and therefore did not err in doing so.
To the extent that Furnish claims the trial court erred in failing to consider her recent
progress; her argument is misplaced. In support of her argument, she cites Prows v. Arkansas
Department of Health & Human Services, 102 Ark. App. 205, 283 S.W.3d 637 (2008). In Prows,
we held that a circuit court erred as a matter of law when it refused to consider or weigh
evidence about a parent’s recent improvements in a termination-of-parental-rights case.
There, the circuit court stated from the bench that it was required to terminate a parent’s
rights if a child was not able to go home with the parent immediately after the hearing. We
said that the termination statute requires the circuit court to consider a parent’s compliance
during the entire dependency-neglect case and the evidence presented at the termination
hearing in deciding whether termination is in the child’s best interest. Ark. Code Ann. § 9-
27-341(a)(4)(B). Here, however, in its bench ruling, the trial court acknowledged that Furnish
had entered the drug-rehabilitation program but found that her progress was too little, too
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late. Thus, the trial court clearly considered and weighed Furnish’s compliance throughout
the entire case and did not reject her last-minute efforts out of hand. Because the court
considered and weighed everything and excluded nothing, there is no reversible error under
Prows.
IV. Best Interest
Furnish next challenges the trial court’s best-interest finding, arguing that there was
insufficient evidence of adoptability and potential harm.
A. Adoptability
Furnish argues that the trial court erred in its best-interest determination because there
was insufficient proof that B.M. or C.M. would be adopted. She contends that the only
evidence of adoptability presented at the hearing came from the testimony of Janice Birt,5
who testified that she believed the children are adoptable because every child is adoptable if
someone advocated for the child. This is not entirely true.
However, before we address the quantum of evidence introduced on the issue of
adoptability at the termination hearing, we must first consider the statutory framework
concerning adoptability and our caselaw on this matter. A trial court may terminate a parent’s
rights only if it finds by clear and convincing evidence that it is in the best interest of the
juvenile. The court determines whether termination is in the juvenile’s best interest by
considering two factors: (1) the potential harm caused by continuing contact with the parent
5
We note that the trial court erroneously identified Tina Green as the caseworker who
testified regarding adoptability and potential harm instead of Janice Birt. Given our de novo
review of the record, such an error is harmless.
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and (2) the likelihood that the juvenile will be adopted if parental rights are terminated. Ark.
Code Ann. § 9-27-341(b)(3)(A).
Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) expressly states that the court’s
best-interest analysis must include “consideration” of the “likelihood” that the juvenile will
be adopted if the termination petition is granted. The statute does not, however, mandate that
the trial court make a specific finding that the children are adoptable nor must the court find
the children are “likely” to be adopted. The statute only mandates the “consideration” of the
likelihood of adoptability.
We have held that adoptability is “but one factor that is considered when making a best-
interest determination.” Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, at 6, 385
S.W.3d 285, 288 (emphasis in original) (citing McFarland v. Ark. Dep’t of Human Servs., 91
Ark. App. 323, 210 S.W.3d 143 (2005)). To that end, we have held that adoptability “is not
an essential element in a termination case.” Tucker v. Ark. Dep’t of Human Servs., 2011 Ark.
App. 430, at 7, 389 S.W.3d 1, 4; Singleton v. Ark. Dep’t of Human Servs., 2015 Ark. App. 455,
at 6, 468 S.W.3d 809, 813 (noting that adoptability is not an essential element of proof). We
have also stated that the factor of adoptability need not be proved by clear and convincing
evidence. Smith, 2017 Ark. App. 368, at 8, 523 S.W.3d at ___. Rather, it is the “best interest”
finding that must be supported by clear and convincing evidence. Salazar v. Ark. Dep’t of
Human Servs., 2017 Ark. App. 218, at 14, 518 S.W.3d 713, 722. With these standards in
mind, we now consider the evidence concerning the factor of adoptability before the trial
court.
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Janice Birt, a foster-care supervisor and Craighead County DCFS worker, testified that
B.M., A.M., and C.M. are all adoptable. She reported that B.M. was currently in a group
facility. She did express some concern regarding the adoptability of B.M.—B.M. had been
quite traumatized and was further frustrated with her parents’ noncompliance, resulting in
disruptive behavior in foster care. Nonetheless, she stated that she believes that every child is
adoptable and that she would just have to “go out there and advocate for them.” She
informed the court that A.M.’s foster family had expressed an interest in adopting her. C.M.
was in another foster family, but her family had not yet been asked whether they were
interested in adopting her. Birt further testified that it would not be safe to place the children
back in Furnish’s care at that time because of her unresolved drug issues. Brenda Keller also
testified regarding a home study that had been performed on Max McKinney’s sister in North
Dakota who had expressed an interest in all three children being placed with her. At the time
of the termination hearing, the Interstate Compact on the Placement of Children (ICPC) had
been completed, but it had not yet been determined whether the home study had been
approved or disapproved.
In the instant appeal, Furnish argues that there was insufficient evidence of the
adoptability of these particular children introduced at the termination hearing. In making this
argument, Furnish relies on our decision in Grant v. Arkansas Department of Human Services,
2010 Ark. App. 636, 378 S.W.3d 227. That case is distinguishable, however. In Grant, an
adoption specialist testified that the child was adoptable because “all children are adoptable.”
We reversed the trial court because its order did not consider the age, health, or well-being
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of the child; given the difficulties that DHS had experienced in placing the child within the
foster system, we concluded that there was a “dearth of evidence” of adoptability.
Here, Birt did not simply rely on her statement that she believed all children are
adoptable. She testified that she did not believe that A.M. or C.M. had any issues that would
slow an adoption. She testified that A.M.’s foster family had expressed some interest in
adopting her but that they had not yet explored adoption with C.M.’s foster family. B.M.,
however, was in a group facility after having been removed from her foster family, and Birt
admitted she had some concerns about her potential for adoption given the trauma she had
suffered. There was also some evidence presented that a paternal aunt was interested in
having all three children placed with her. Thus, there was more evidence presented for the
court’s consideration than just the caseworker’s general belief as to the adoptability of “all”
children. She spoke specifically about her belief as to the adoptability of each individual child
and discussed the potential barriers, or lack thereof, to adoption for each child. We have
previously held that the testimony of a caseworker concerning adoptability may be sufficient
evidence of adoptability and that the testimony of an adoption specialist is not required under
the statute. Duckery v. Ark. Dep’t of Human Servs., 2016 Ark. App. 358, at 6; Fortenberry v.
Ark. Dep’t of Human Servs., 2009 Ark. App. 352. We have also held that neither the statute
nor caselaw requires a specific quantum of evidence in the consideration of the likelihood of
adoptability. See Renfro, supra. Likewise, we have explained that DHS is not required to
provide the names of specific adoptive parents for the children or even provide evidence that
it has identified such persons at the termination hearing. Canada v. Ark. Dep’t of Human Servs.,
2017 Ark. App. 476, at 5; Singleton, 2015 Ark. App. 455, at 6, 468 S.W.3d at 813. Thus, we
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cannot conclude, on the record before us, that the trial court erred in its adoptability-factor
consideration.
B. Potential Harm
Finally, Furnish challenges the trial court’s potential-harm determination, contending
the evidence of potential harm was lacking because the court did not allow her a full year in
which to overcome her drug addiction and reunify with her children. While she
acknowledges the children’s need for permanency, she argues that there was no need for
expedited termination given the fact that McKinney’s rights had yet to be terminated and
given the fact there was a potential relative placement for the children that would allow the
children to be placed together.
The court’s potential-harm analysis was not clearly erroneous. In considering potential
harm caused by returning the child to the parent, the trial court is not required to find that
actual harm would result or to affirmatively identify a potential harm. Reid v. Ark. Dep’t of
Human Servs., 2011 Ark. 187, 380 S.W.3d 918. Potential harm must be viewed in broad
terms, including the harm the child suffers from the lack of stability in a permanent home.
Martin v. State, 2017 Ark. 115, 515 S.W.3d 599. Here, Furnish’s continued drug use itself is
sufficient to support the trial court’s finding of potential harm. Caselaw is clear that a parent’s
continuing use of illegal drugs poses a risk of harm to the children if returned to that parent.
Howell v. Ark. Dep’t of Human Servs., 2017 Ark. App. 154, at 6, 517 S.W.3d 431, 435.
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Moreover, a 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 v. Ark. Dep’t of Human Servs.,
2014 Ark. App. 715, at 3, 451 S.W.3d 231, 233.
Affirmed.
GRUBER, C.J., and BROWN, J., agree.
Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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