McElwee v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 214
ARKANSAS COURT OF APPEALS
DIVISION III
No.CV-15-950
MICHAEL MCELWEE Opinion Delivered April 20, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. JV2014-357]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND M.M., HONORABLE JIM D. SPEARS,
MINOR CHILD JUDGE
APPELLEES
AFFIRMED
BART F. VIRDEN, Judge
Michael McElwee appeals the Sebastian County Circuit Court order terminating his
parental rights to his minor child, M.M. McElwee asserts that the circuit court erred in
finding that it was in the best interest of the child to terminate his parental rights. We disagree,
and we affirm.
I. Facts
M.M. (born 4/11/2013) was placed in emergency custody of the Arkansas
Department of Human Services (the Department) on April 17, 2014, based on reports that
Michael had physically abused his wife, Melody Hunt (M.M.’s mother).1 McElwee was
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Hunt’s parental rights were also terminated, but they are not the subject of this appeal.
Cite as 2016 Ark. App. 214
named as the putative father in the affidavit. The affidavit for the emergency-custody order
also described the parents’ drug use and unsuitable conditions in the home such as no
furniture, nowhere for M.M. to sleep, and trash and cigarette butts on the floor within M.M.’s
reach. The affidavit also sets forth that a family-service worker had found a one-and-a-half-
inch by four-inch healing burn on M.M.’s leg. Melody later explained M.M. had been burned
by a floor vent and that McElwee had taken M.M. to a hospital in Sallisaw, Oklahoma, which
could not be confirmed by the hospital there. The physician who examined M.M. at the time
M.M. was placed in the custody of the Department stated that the burn could not have come
from a floor vent.
A case plan was entered May 9, 2014. McElwee was ordered to complete parenting,
anger-management, and domestic-violence classes; participate in a drug-and-alcohol
assessment; and make himself available for drug screening. He was also ordered to find
employment, refrain from drug use, procure stable and appropriate housing, and complete a
psychological evaluation. A probable-cause order was entered on May 15, 2014. The circuit
court found that there was evidence of circumstances such that immediate action was
necessary to protect the child by removing him from the home. Specifically, the circuit court
found that there was evidence of parental drug use and domestic abuse, and it found that the
burn on the child’s leg and the mother’s unverifiable story about details concerning the burn
supported its finding of probable cause. The circuit court ordered McElwee to establish
paternity. McElwee did not appear at the hearing, and he did not have an attorney at that
time.
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On May 27, 2014, M.M. was declared dependent-neglected after a hearing on the
matter at which McElwee appeared pro se. An adjudication order was entered the same day,
and in it, McElwee was again ordered to establish paternity; find legal employment; complete
the classes listed in the case plan; submit to psychological and drug-and-alcohol assessments
and complete any treatment recommended; and he was ordered to resolve any pending
criminal matters. The circuit court denied McElwee’s request to waive DNA testing.
On October 20, 2014, the circuit court held a review hearing at which McElwee
appeared pro se. The review order was entered on December 17, 2014. In its order, the
circuit court found that DNA testing showed McElwee to be M.M.’s father and that returning
M.M. to his parents’ care was contrary to M.M.’s health, safety, and welfare. The circuit
court also found that McElwee had not complied with the case plan. Specifically, the circuit
court found that McElwee had been incarcerated in the Sebastian County jail, that he had not
completed any services, and that he had not exercised visitation with his child. Though the
goal of the case was still reunification, the court found that a concurrent goal of adoption was
appropriate. At the time of the review hearing, M.M. had been placed with his paternal aunt.
A termination hearing was scheduled for January 12, 2015.
On November 3, 2014, the court appointed an attorney to represent McElwee. In its
termination petition, the Department alleged several statutory grounds for termination, that
McElwee’s sister was interested in adopting M.M., that there was potential for harm to M.M.
if he was returned to the custody of his parents, and that termination was in M.M.’s best
interest.
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The termination hearing took place on March 16, 2015. McElwee appeared with his
attorney. At the hearing, McElwee testified that he was currently incarcerated at the Varner
Unit for delivery of methamphetamine and that his sentence was ten years with ten years’
suspended, but that he might be released by the end of the year. He testified that one of his
children born prior to M.M. had been adopted. McElwee testified that M.M. had been
removed because Melody had made false statements about the domestic abuse and that he had
not hit her as she had stated to family-service workers. He testified that when M.M. was
burned he called his sister, who was employed as a nurse and that she bandaged the wound
and told him how to care for it. McElwee testified that, for that reason, he never took M.M.
to a doctor. McElwee testified that he received the case plan only after he had contacted the
supervisor for the caseworker assigned to their case and that after he picked up the case plan
in May 2014, he began to comply with the order. McElwee testified that there were services
available at the Varner Unit and that he was waiting for a spot to open. He stated that he had
changed a lot since the removal of his first child, and he asked the court for more time to
comply with the case plan. McElwee pointed to his efforts before this case had begun: that
he took M.M. to his medical and WIC appointments and that he had been working (out of
desperation he had begun selling drugs) and providing for his son. McElwee explained that
he had become a Christian, that he loved his son, and that he now understood that his actions
affected M.M. McElwee testified that he had completed anger-management classes in prison
and that he had been going to NA meetings; however, he did not submit certificates for
completion of the program or sign-in sheets for the meetings.
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Department caseworker Cheryl Deaton testified that McElwee contacted her and asked
her for the case plan, and that she left a copy for him at the front desk on or around May 17.
She testified that she had walked McElwee through the requirements, explained to him how
referrals for services were made, and was “confident that Mr. McElwee was aware of what he
needed to do.” Deaton testified that the referrals were made by the Department as ordered;
however, she explained that McElwee was rearrested shortly after their meeting, and she was
not sure if the referrals got to him. Deaton testified that she was involved in the prior
termination of McElwee’s parental rights in 2013 and that it was her opinion that McElwee
had not made any progress since that time. Deaton stated that “all the issues that were there
before are still there” and that “we’ve had a long-standing history and it’s been continual and
a pattern.” She testified that she did not believe that McElwee would benefit from more
services or time and that M.M. would be at risk if he were returned to the parents because
there was no guarantee that McElwee would stay sober, be able to provide a home, or “even
meet the child’s needs.”
In its written order entered on August 18, 2015, the circuit court found the following
grounds for termination: (1) subsequent factors, namely, McElwee’s incarceration; (2) prior
termination of McElwee’s parental rights involving previous children; (3) McElwee had been
sentenced in a criminal proceeding for a period of time that would amount to a substantial
period of the child’s life; (4) aggravated circumstances, specifically, abandonment, and that
McElwee’s parental rights were terminated as to a sibling of M.M.’s; and that the root cause
of these aggravated circumstances was that McElwee has been unable to resolve his drug
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addiction; and (5) the best interest of the child would be served by termination, considering
the likelihood of adoption and the potential harm to M.M.’s welfare and safety if he was
returned to his parents due to their drug abuse, mental-health issues, and inability to conform
their behavior to the law. McElwee filed a timely notice of appeal.
II. Point on Appeal
For his sole point on appeal, McElwee argues that the evidence was insufficient to
support the circuit court’s finding that termination was in M.M.’s best interest in light of
M.M.’s placement with a relative. McElwee does not challenge the statutory grounds upon
which his rights were terminated. Nor does he challenge the circuit court’s finding that
M.M. is adoptable.
A. Standard of Review and Applicable Law
In order to terminate parental rights, a circuit 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. Madison v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 368, at 6, 428 S.W.3d 555, 559 (citing Ark. Code Ann. § 9-27-
341(b)(3)(A)(i) & (ii) (Supp. 2011)). Furthermore, our appellate courts have noted that, in
considering the best interest of the child, there is no requirement that every factor considered
be established by clear and convincing evidence; rather, after consideration of all factors, the
evidence must be clear and convincing that termination is in the best interest of the child.
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Renfro v. Ark. Dep’t of Human Servs., 2011 Ark. App. 419, at 9, 385 S.W.3d 285, 289. Clear
and convincing evidence is that degree of proof that will produce in the finder of fact a firm
conviction as to the allegation sought to be established. Washington v. Ark. Dep’t of Human
Servs., 2014 Ark. App. 293. The appellate inquiry is whether the circuit court’s finding that
the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due
deference to the circuit court’s opportunity to judge the credibility of the witnesses. Smith v.
Ark. Dep’t of Human Servs., 2013 Ark. App. 753, 431 S.W.3d 364. 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.
A circuit court is only required to consider potential harm to a child’s health and safety
that might come from continued contact with the parents; there is no requirement to find that
actual harm would result or identify the potential harm. Pine v. Ark. Dep’t of Human Servs.,
2010 Ark. App. 781, at 11, 379 S.W.3d 703, 709. The potential-harm analysis is to be
conducted in broad terms. Id. Furthermore, the juvenile’s need for permanency and stability
overrides a parent’s request for additional time to improve circumstances, and courts will not
enforce parental rights to the detriment of the well-being of the child. Contreras v. Ark. Dep’t
of Human Servs., 2015 Ark. App. 604, at 6, 474 S.W.3d 510, 514. The intent of the statute
is to provide permanency in the child’s life in all circumstances where a return to the parent
is contrary to the juvenile’s health, safety, or welfare and cannot be accomplished in a
reasonable period of time as viewed from the child’s perspective. Id. Past behavior serves as
a predictor of potential harm to the child if returned to the parent’s custody. Whittiker v. Ark.
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Dep’t Human Servs., 2015 Ark. App. 467, at 8, 469 S.W.3d 396, 401. Prior terminations may
be considered as an indicator of potential harm. See Drake v. Ark. Dep’t of Human Servs., 2014
Ark. App. 475, at 6, 442 S.W.3d 5, 8 (where we held that the circuit court did not err when
it found that appellant was not successfully managing the very issues that resulted in the prior
terminations and a potential threat of harm remained to the minor child as a result).
B. Analysis
McElwee argues that because M.M. had been placed with a relative, the circuit court was
in error for terminating his parental rights instead of choosing the less restrictive option of
permanent custody with the relative. We disagree, and we affirm.
Arkansas law permits a trial court to set termination or adoption as the case goal even
when a relative is available and requests custody. Ark. Code Ann. § 9-27-338(c)(1)–(6); Davis
v. Ark. Dep’t of Human Servs., 2010 Ark. App. 469, 375 S.W.3d 721. Arkansas Code Annotated
section 9-27-338(c)(1)–(6) lists the permanency goals that the circuit court is to consider in
determining the best interest of the children. The top preference is to return the juvenile to
the parents if it is in the best interest of the juvenile and the juvenile’s health and safety can be
adequately safeguarded if returned home. See Ark. Code Ann. § 9-27-338(c)(1). The second
preference is adoption, unless the juvenile is being cared for by a relative and termination of
parental rights is not in the best interest of the juvenile. See Ark. Code Ann. § 9-27-338(c)(2);
Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, 15, 344 S.W.3d 670, 678; Hall v.
Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008). Permanent relative
placement is listed as the fourth preference. See Ark. Code Ann. § 9-27-338(c)(4). Thus,
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according to the public policy of this state, termination and adoption are preferred to
permanent relative placement.
McElwee argues that the facts of the present case are similar to Cranford v. Arkansas
Department of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851. In Cranford, where this
court reversed the circuit court’s finding that it was in the best interest of the child to terminate
parental rights where the minor child had been placed with his grandparents. We held that the
evidence was insufficient to establish that termination of either parent’s parental rights would
serve the child’s best interest because there was no danger in allowing the parents to have
continued contact with the child. Id. at 11–12, 378 S.W.3d at 856–57.
There is some similarity between Cranford and the present case in that the minor child
had been placed with a relative; however, the differences between the cases are determinative.
In Cranford, there was no evidence of abuse, whereas in the present case M.M. had a one-and-
a-half-inch by four-inch burn on his leg that the physician stated was not caused by contact
with a heating vent, as the parents had claimed. In Cranford, domestic abuse was not an issue;
however, in the present case, the child was removed from the home because of McElwee’s
physical abuse of Melody, which he denied had ever occurred. Also, drug abuse was not
present in Cranford, whereas drug-related issues are at the core of this case. At the time of the
termination hearing, McElwee was serving a lengthy prison sentence for delivery of
methamphetamine. During the pendency of the case, he had been arrested on other drug-
related charges and had been incarcerated for short periods of time and then released. The only
evidence McElwee presented to indicate he had sought help with his drug issues was his own
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testimony that he had attended NA meetings while incarcerated. He did not provide
documentation of his attendance. Clearly, the facts in this case are different from the facts in
Cranford in that they support the circuit court’s finding that it was in M.M.’s best interest to
terminate McElwee’s parental rights.
The circuit court in the present case found by clear and convincing evidence that it was
in the best interest of M.M. to terminate parental rights. In making its best-interest finding, the
circuit court specifically considered the likelihood of potential harm to the health and safety
of the juvenile if he was returned to the custody of the parents: “The Court finds that the
juvenile would be at great risk of harm if returned to the parents due to their drug use, mental-
health issues, and inability to conform their behavior to the requirements of the law as
evidenced by their chronic incarceration.” We hold that the circuit court’s conclusion that
termination of McElwee’s parental rights was in M.M.’s best interest was not clearly erroneous.
Affirmed.
HIXSON and BROWN, JJ., agree.
Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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