Nicholas Mills v. Arkansas Department of Human Services and Minor Children

Cite as 2022 Ark. App. 197ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-582
Opinion Delivered May 4, 2022
NICHOLAS MILLS APPEAL FROM THE YELL
APPELLANT COUNTY CIRCUIT COURT,
NORTHERN DISTRICT
V. [NO. 75NJV-20-15]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR HONORABLE TERRY SULLIVAN,
CHILDREN JUDGE
APPELLEES
AFFIRMED
PHILLIP T. WHITEAKER, Judge
Nicholas Mills appeals a Yell County Circuit Court order terminating his parental
rights to his children, KM and LM.1 On appeal, he challenges only the circuit court’s best-
interest finding, claiming the evidence showed that he had made significant and consistent
progress during the pendency of the action, that his children were bonded to him, and that
he was on a course to have a trial home placement. We affirm.
Ronni Partain and Nicholas Mills are the biological parents of KM and LM. On June
4, 2020, the children were removed from their physical and legal custody after the Dardanelle
1
The parental rights of Ronni Partain, the children’s biological mother, were also
terminated. She is not a party to this appeal. As a result, this opinion will focus only on the
facts and procedural history as they pertain to Mills.
Police Department received a hotline report that the children had been left at home
unattended. While Partain was at home with the children and Mills was at work, a neighbor
found three-year-old KM alone in a parking lot of their apartment building. KM was wet and
covered in something sticky. Out of concern, the neighbor went to Partain and Mills’s
apartment, found the door open, and called out several times. She heard a baby crying but
received no other response. She stepped inside and saw eleven-month-old LM on the
bathroom floor covered in something soapy. The neighbor contacted 911, and officers and
paramedics were dispatched.
Officers on scene contacted Partain. She claimed that KM was supposed to be
watched by a neighbor and that she had been taking a nap with LM. She claimed that LM
must have wandered off while she was asleep and that she would never put her children in
danger. Officers reported, however, that Partain was incoherent and struggling to focus, and
her apartment was littered with dangerous items within reach of the children, including
knives, bug spray, tools, medications, scissors, and window cleaner. 2
Meanwhile, the paramedics found LM lethargic and almost unresponsive, and Partain
was unable to advise them whether LM had ingested any chemicals or poison. He was rushed
to the emergency room at Dardanelle Regional Medical Center. At the hospital, both Partain
and Mills were administered drug tests. Partain tested positive for methamphetamine,
amphetamine, THC, and benzodiazepine. Mills tested positive for THC, methamphetamine,
2
Partain was arrested on the charge of endangering the welfare of a minor.
2
and amphetamine. As a result, the Arkansas Department of Human Services (Department)
exercised a seventy-two-hour hold on the children and initiated dependency-neglect
proceedings. The court subsequently adjudicated the children dependent-neglected due to
parental unfitness as a result of Partain’s and Mills’s drug use, their failure to protect, and
environmental neglect.3
Throughout the proceedings, the court monitored the services provided to Mills and
his efforts at compliance. At the onset, the court set reunification as the goal of the case. In
addition, the court ordered Mills to follow the case plan, maintain stable employment and
housing, submit to a drug-and-alcohol assessment, remain drug-free, and submit to a
psychological evaluation and participate in counseling.
The court conducted two review hearings to monitor the parties’ compliance. At the
first review hearing, the court concluded that Mills was not in compliance with the case plan
in part because he had been unable to pass a drug screen on the day of the hearing. He was
ordered to sign a HIPAA release and to complete a drug-and-alcohol assessment forthwith.
At the second review hearing, the court concluded that Mills had only minimally
complied with the case plan. While he had finished his parenting classes, Mills had failed to
comply with numerous orders. He did not have stable housing or employment; his license
was suspended, and he did not have transportation; he had not completed his drug-and-
alcohol assessment; and he had missed six visits with his children—three because Partain
3
The adjudication hearing occurred in August 2020, but the order was not filed until
November 3, 2020.
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tested positive for COVID-19, and three were no-shows. While he had completed his
psychological evaluation, Mills had been discharged from counseling with Counseling
Associates and refused to return to River Valley Psychiatry, although he testified that he
intended to return to counseling and had an appointment scheduled the next week. The
court also noted that Mills had a long list of previous criminal charges and that his criminal
history included having been on parole and an early termination from drug court. Perhaps
of more significance, the court noted that Mills was currently facing charges of possession of
drug paraphernalia and criminal trespass that had arisen since the initiation of the
dependency-neglect proceeding. In light of this, the court found that Mills had not benefited
from the services provided by the Department and had failed to regularly take advantage of
the services offered.
The court subsequently conducted a permanency-planning hearing wherein it found
that the parents’ complete lack of progress in the case plan and towards rehabilitating their
circumstances prevented a trial placement or return of custody and changed the goal of the
case to termination of parental rights. As a result, the Department filed the petition to
terminate parental rights.4
The court conducted a termination hearing in August 2021. After hearing the
testimony and considering all the evidence before it, the circuit court entered an order
4
The petition alleged that termination was in the best interest of the children and
cited six statutory grounds for termination. Because Mills does not challenge the sufficiency
of the evidence concerning the statutory grounds, we will not recite the detailed allegation
of grounds.
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terminating Mills’s parental rights. The court specifically found that the Department had
proved all six statutory grounds alleged in the petition and that the children are adoptable.
The court further found that the children would be subject to potential harm if returned to
Mills’s care and custody. In so finding, the court found that Mills had lived in several
temporary locations throughout the case and had failed to obtain and maintain safe, stable,
and appropriate housing; that he had completed his psychological evaluation and drug-and-
alcohol assessments but had failed to follow through with recommended treatment and had
tested positive for controlled substances; and that he had been terminated early from drug
court and had garnered further criminal charges since the case’s inception despite being on
parole. As a result, the court concluded it was in the best interest of the children to terminate
his parental rights.
Mills filed a timely notice of appeal from the termination order. He does not
challenge the court’s findings with respect to the statutory grounds nor does he challenge
the court’s finding regarding the adoptability of the children. Instead, he makes a broader
claim that termination was not in the best interest of the children. He asserts that he had
made significant and consistent progress toward reunification, his children were bonded to
him, and he was on a course to have a trial home placement. In other words, he contends
that the circuit court erred in finding that the children could potentially suffer harm if
returned to his care.
We review termination-of-parental-rights cases de novo. Heath v. Ark. Dep’t of Hum.
Servs., 2019 Ark. App. 255, 576 S.W.3d 86. We review for clear error, and a finding is clearly
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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. A court
may order termination of parental rights if it finds clear and convincing evidence to support
one or more statutory grounds listed in the Juvenile Code, Arkansas Code Annotated section
9-27-341(b)(3)(B) (Supp. 2021), and that termination is in the best interest of the child,
taking into consideration the likelihood of adoption and the potential harm to the health
and safety of the child that would be caused by returning him or her to the custody of the
parent. Ark. Code Ann. § 9-27-341(b)(3)(A). This best-interest determination includes
consideration of the evidence supporting the specific grounds for termination. Camarillo-Cox
v. Ark. Dep’t of Hum. Servs., 360 Ark. 340, 201 S.W.3d 391 (2005).
Mills claims that the court terminated his parental rights due to its skewed perspective
of his progress throughout the case. He states that the court concluded that his progress was
virtually nonexistent but that substantial evidence proves otherwise.
Mills highlights his visitation as an area in which the court exhibited a skewed
perspective. Concerning visitation, the court heard testimony that Mills had completed
seventy-six visits with his children and had canceled eighteen. Mills admits he missed
approximately eighteen visits but argues that the record reflects that the missed visits were
canceled due to circumstances beyond his control. He also notes that he attended seventy-
six lengthy visits with his children, that he was appropriate with them, and that his children
clearly had bonded with him. According to Mills, his visits with the children weighed in
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favor of preserving his parental rights, not termination, and the court should not have relied
on the missed visits to support its decision to terminate.
Mills also contends that the court exhibited a skewed perspective concerning his
progress. While he admits that he struggled in the beginning of the case, he claims that his
struggles did not negatively impact his parenting. He contends that by the time of
termination, the evidence reflected his stability. In addition to his strong bond with the
children, he had improved his housing situation. In his testimony, he admitted that had
moved three or four times since the case was opened but reported current stable housing—
he was living in an apartment leased in his sister-in-law’s name. As further evidence of his
stability, he points to his intent to separate from Partain 5 and his steady and stable
employment.
In addition, Mills disagrees with the court’s findings concerning his compliance with
sobriety and court-ordered counseling. Concerning sobriety, the court heard evidence that
the children were removed from the home in June 2020 due, in part, to his drug usage. As
a result, the court ordered a drug-and-alcohol assessment. Mills contends that he completed
this assessment, which we acknowledge is correct. The court, however, received evidence that
Mills tested positive for methamphetamine in April and May, eleven months after the
children had been taken into the custody of the Department, and that subsequent to
removal, an incident occurred in which another child had been found surrounded by drug
5
Despite Mills’s asserted intention to separate from Partain, she testified that they
were married and that she intended to stay married to him.
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paraphernalia in a home shared by Partain and Mills. As a result of this incident, Mills
received a felony charge. Nonetheless, Mills argues that he had achieved sobriety for three
months prior to the termination hearing and was attempting to resolve his criminal issues.
Concerning his court-ordered counseling, Mills argues that he completed a
psychological evaluation, which supports his claim that he is able to parent, and that he was
engaged in counseling. The court, however, heard evidence that Mills had not completed
counseling. While he had received three different referrals for counseling, his participation
in individual and group counseling was sporadic; he had been discharged from one program
as a result; and he had not resumed counseling as of the date of the termination hearing.
While he admits that much of his progress had occurred rapidly near the end of the
case, he claims that the evidence showed he had made significant progress and was in a
position to regain custody of his children or at least begin a trial placement in the near future.
He claims that the court’s decision to terminate his parental rights smacks more of
punishment for his past behavior than consideration of his current and future ability to
parent his children. For the following reasons, we disagree.
Essentially, Mills is asking this court to reevaluate and reweigh the evidence and arrive
at an outcome different from that of the circuit court. It is well settled that this court will
not reweigh the quality of the evidence or credibility of witnesses. Chaffin v. Ark. Dep’t of
Hum. Servs., 2015 Ark. App. 522, 471 S.W.3d 251.
Additionally, we conclude that there was sufficient evidence to support the circuit
court’s best-interest finding. We have consistently held that a circuit court’s statutory-
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grounds findings are relevant to, and can constitute evidence of, the potential harm the
children would face if returned to the parent’s custody. Taylor v. Ark. Dep’t of Hum. Servs.,
2018 Ark. App. 264 (finding that the same evidence that supported statutory grounds
supported the potential-harm prong of the best-interest finding). Here, the circuit court
found that the children were removed due to Mills’s unfitness and that Mills had failed to
remedy the conditions that caused removal. Despite the offer of services, the circuit court
found that he had failed to obtain and maintain safe, stable, and appropriate housing and
had not completed all the services recommended for reunification. Mills does not dispute
these findings made by the court as to grounds; thus, the factual findings supporting those
grounds are unchallenged on appeal and may inform this court’s review of the circuit court’s
best-interest finding. Phillips v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 383, at 16, 585
S.W.3d 703, 711 (affirming the circuit court’s best-interest decision where none of the
statutory-grounds findings were challenged); see also Taylor v. Ark. Dep’t of Hum. Servs., 2018
Ark. App. 264, at 13 (holding that because the parent never appealed any of the circuit
court’s findings that return to the parent’s custody would be contrary to the child’s welfare,
those findings were “conclusively established”). Likewise, the court also concluded that there
was little likelihood that further services would lead to successful reunification, and Mills has
not challenged that finding either.
Finally, it is well established that in termination cases, the court must also consider
the children’s need for stability and permanency. “The intent behind the termination-of-
parental-rights statute is to provide permanency in a child’s life when it is not possible to
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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.” Villaros v. Ark. Dep’t of Hum. Servs., 2016 Ark.
App. 399, at 5, 500 S.W.3d 763, 766 (citing Ark. Code Ann. § 9-27-341(a)(3)).
Here, at best, Mills argues that he was almost to the point of being able to regain
custody or at least begin a trial placement with his children. In other words, he had only
recently begun to fully comply with the case plan and to strive for sobriety and stability. We
have consistently held that evidence presented at a termination hearing that shows the
parents are making overtures and engaging in last-minute efforts toward participating in the
case plan while termination is looming is an insufficient reason to not terminate parental
rights. Ark. Code Ann. § 9-27-341(a)(4)(A); Bean v. Ark. Dep’t of Hum. Servs., 2017 Ark. App.
77, 513 S.W.3d 859; Wilson v. Ark. Dep’t of Hum. Servs., 2015 Ark. App. 666, 476 S.W.3d
816. Furthermore, the court had evidence of Mills’s criminal history and of his pending
charges for possession of drug paraphernalia and trespass. Clearly, the children need stability,
and it was unclear when Mills would be in a position to parent the children or to provide
that needed stability.6
For these reasons, we affirm.
Affirmed.
VIRDEN and MURPHY, JJ., agree.
6
In fact, during the termination hearing, the court was advised that a warrant had
been issued for Mills, and the court commented that Mills might be headed to jail that day.
10
Leah Lanford, Arkansas Commission for Parent Counsel, for appellant.
Andrew Firth, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.
Dana McClain, attorney ad litem for minor children.
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