Bean v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 77
ARKANSAS COURT OF APPEALS
DIVISION III
CV-16-674
No.
OPINION DELIVERED: FEBRUARY 8, 2017
CHRIS BEAN AND JENNIFER BEAN
APPELLANTS APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NO. 04JV-15-500]
V.
HONORABLE THOMAS E. SMITH,
ARKANSAS DEPARTMENT OF HUMAN JUDGE
SERVICES AND MINOR CHILDREN
APPELLEES AFFIRMED
ROBERT J. GLADWIN, Judge
Appellants Chris and Jennifer Bean appeal the May 2, 2016 order of the Benton
County Circuit Court terminating their parental rights to their four minor sons, C.B. 1,
C.B. 2, C.B. 3, and C.B. 4, then ages five years, four years, three years, and eleven months.
They argue that the trial court erred in the permanency-planning hearing for C.B. 1, C.B.
2, and C.B. 3 by changing the goal of the case to adoption without sufficient evidence to
meet the statutory criteria to change the goal. They also argue that the evidence does not
support the statutory grounds that the trial court relied on to terminate their parental rights
and that the evidence does not demonstrate any potential harm in returning the children to
their custody. We affirm.
Cite as 2017 Ark. App. 77
I. Facts
This case began on July 22, 2014, when the Arkansas Department of Human Services
(ADHS) filed a petition for emergency custody and dependency-neglect in regard to the
Beans’ three sons, C.B. 1, C.B. 2, and C.B. 3. ADHS had been monitoring the family for
environmental neglect since December 2013. The family had moved from a trailer into a
three-story duplex, but ADHS took an emergency hold on the three boys after an
investigator discovered that the family had an extensive history with ADHS for
environmental neglect on six previous children who were in the custody of their maternal
grandmother because the Beans voluntarily signed over guardianship upon learning that
ADHS had been contacted about their circumstances.
The three boys were adjudicated dependent-neglected on September 16, 2014. Six
months into the case, ADHS determined that the Beans were not in compliance with the
case plan and attempted to seek termination of parental rights (TPR) on the basis that there
was little likelihood that the Beans would reach full compliance. The Beans challenged
ADHS’s recommendation, and the trial court found that the Beans had complied with
multiple aspects of the case plan, including participation in parenting classes, psychological
evaluations, couples’ counseling, individual counseling, and visitation, but that they had not
maintained a “clean” home during the review period. Even though the case had been open
for only six months, and the Beans were in partial compliance with the case plan, the trial
court set the case for a March 2015 TPR hearing.
The March 2015 TPR hearing was subsequently changed to a review hearing by
agreement of the parties; after that hearing, the trial court entered an order finding that the
2
Cite as 2017 Ark. App. 77
Beans had “fully complied with the case plan and court orders.” Although the primary issue
was environmental neglect, which was found to be remedied at the time of that hearing,
the trial court did not return the boys to the Beans; rather it ordered the Beans to develop
and provide a plan for the care of the boys to ensure that their therapies would continue
when they returned home. The case was set for a permanency-planning hearing on June
16, 2015.
At the June 16, 2015 permanency-planning hearing, ADHS submitted a court report
and photographs from the previous six months. The court report indicated that the Beans
were complying with the case plan, yet ADHS continued to recommend TPR and
adoption. At the beginning of the hearing the trial court noted that the case was an
environmental one and that at the prior hearing it was close to placing the boys back with
the Beans. It asked to hear from ADHS why there had been another sudden shift in ADHS’s
goal. At the conclusion of the hearing, the trial court found that the Beans had no stable
employment and that the home had not been kept “clean enough” for the trial court to find
that the Beans had resolved the environmental issues. In its permanency-planning order
filed on July 1, 2015, the trial court changed the goal to adoption but kept a secondary
concurrent goal of reunification and ordered ADHS to continue offering services, including
Intensive Family Services (IFS) in the home. The Beans sought to appeal the order at the
time it was entered by requesting a Rule 54(b) certificate for an interlocutory appeal, but
that was denied. 1
1
Pursuant to Arkansas Supreme Court Rule 6-9(a)(1)(B) (2016), permanency-
planning orders are appealable only if the trial court enters an order in compliance with
Arkansas Rule of Civil Procedure 54(b) (2016). The Beans’ request for a certificate was
3
Cite as 2017 Ark. App. 77
Just before the permanency-planning hearing, on May 19, 2015, the Beans had
another child, C.B. 4, who was left in the Beans’ custody. Ms. Bean lied to both caseworkers
and to the trial court about being pregnant again until her eighth month of pregnancy.
Three months after C.B. 4 was born, ADHS filed a petition for dependency-neglect, not
seeking custody of C.B. 4 but to have C.B. 4 adjudicated dependent-neglected and added
to the already-open case. 2 C.B. 4’s inclusion in the case took place after the permanency-
planning hearing, and shortly thereafter, on September 22, 2015, ADHS filed a combined
petition for TPR and a motion for no reunification services on all four of the boys. A TPR
hearing was set for October 20, 2015.
A few days before the scheduled TPR hearing, on October 12, 2015, for reasons that
are unclear, the three older boys were sent home on a trial home placement where C.B. 4
remained in the Beans’ custody. At the October 20, 2015 hearing, the trial court converted
the hearing to another review hearing and found that the Beans were in partial compliance
with the case plan and that they were partially moving toward resolving the health-and-
safety issues that had caused the removal of the three older boys. Although the resulting
order did not reference the trial home placement that the three boys had been on for the
previous week, the order did reflect a long list of requirements for the Beans to follow. On
denied, and they appealed; but the appeal was dismissed without prejudice because, as this
court held, the order denying the certification did not dismiss the parties or conclude their
rights, and the appeal did not fall under any exception to Arkansas Rule of Appellate
Procedure–Civil 2(a) (2016) because the permanency-planning order could be taken up at
the conclusion of the case. See Bean v. Ark. Dep’t of Human Servs., 2016 Ark. App 58. That
is the procedure the Beans chose to follow, and the permanency-planning order, along with
the TPR order, are the subjects of this appeal.
2
The adjudication order related to C.B. 4 was entered on November 23, 2015.
4
Cite as 2017 Ark. App. 77
that same date, the trial court adjudicated C.B. 4 dependent-neglected based on neglect and
parental unfitness, finding that he was at substantial risk of inadequate supervision and not
having his mental, physical, and emotional needs met. Although the trial court noted that
the goal was reunification, C.B. 4 had not been removed from the custody of the Beans as
of that time. 3
On December 15, 2015, at the end of the sixty-day trial home visit, the visit was
extended for an additional forty-five days. However, on January 11, 2016, ADHS
terminated the extended visit and removed all of the boys, including C.B. 4. During the
emergency hold of C.B. 4, but before ADHS could file the formal emergency petition, the
Beans filed a motion for emergency hearing stating that ADHS had made known its desire
to remove the children at the time the trial visit was extended on December 15, 2015, that
the Beans had been in compliance with every requirement placed on them by the court and
ADHS, and that ADHS’s removal of the children was opportunistic because it took
advantage of the difficult situation the Beans were in–Mr. Bean had been hospitalized and
their basement had flooded during a storm. The Beans requested the emergency hearing so
that they could be heard on the removal of all of the boys, and the trial court set the hearing
on the motion four days later. ADHS filed its formal motion for ex parte emergency change
of custody on January 14, 2016, stating that the home had fallen into such disarray that the
conditions posed a health-and-safety risk to the children.
3
The Beans appealed the adjudication of C.B. 4, but this court affirmed on June 22,
2016, three months after the trial court had already terminated the Beans’ parental rights to
all of the boys. See Bean v. Ark. Dep’t of Human Servs., 2016 Ark. App. 350, 498 S.W.3d
315.
5
Cite as 2017 Ark. App. 77
After a hearing, the trial court entered an order of emergency change of custody on
C.B. 4 and a subsequent probable-cause order finding that the Beans had ultimately failed
to follow the trial court’s orders during the trial home placement and that their actions had
put the children at substantial risk of harm. ADHS then refiled its petition for TPR on
February 19, 2016, and the TPR hearing was held on March 4. Because of the highly
contested nature of the entire case, the parties asked the court to incorporate into the record
all prior testimony from all prior hearings, as well as exhibits from those hearings, and the
trial court agreed. On May 2, 2016, the trial court entered an order terminating the Beans’
parental rights to all four children. The Beans filed a notice of appeal of the May 2, 2016
TPR order, as well as the July 1, 2015 permanency-planning order, which could be taken
up as an interim order with the final and appealable TPR order. See Ark. Sup. Ct. R. 6-
9(a)(1)(C); Bryant v. Ark. Dep’t of Human Servs., 2011 Ark. App. 390, 383 S.W.3d 901;
Velazquez v. Ark. Dep’t of Human Servs., 2011 Ark. App. 168.
II. Permanency-planning Hearing Change of Goal
The burden of proof in permanency-planning proceedings is by a preponderance of
the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B) (Repl. 2015). The standard of review
on appeal is de novo, and we will reverse only if the trial court’s findings are clearly
erroneous. Ark. Dep’t of Human Servs. v. McDonald, 80 Ark. App. 104, 91 S.W.3d 536
(2002).
Arkansas Code Annotated section 9-27-338(a)(1) states that a “permanency planning
hearing shall be held to finalize a permanency plan for the juvenile.” Subsection (c) states,
6
Cite as 2017 Ark. App. 77
(c) At the permanency planning hearing, based upon the facts of the case, the
circuit court shall enter one (1) of the following permanency goals, listed in order of
preference, in accordance with the best interest, health, and safety of the juvenile:
(1) Placing custody of the juvenile with a fit parent at the permanency
planning hearing;
(2) Returning the juvenile to the guardian or custodian from whom the
juvenile was initially removed at the permanency planning hearing;
(3) Authorizing a plan to place custody of the juvenile with a parent, guardian,
or custodian only if the court finds that:
(A)(i) The parent, guardian, or custodian is complying with the established
case plan and orders of the court, making significant measurable progress toward
achieving the goals established in the case plan and diligently working toward
reunification or placement in the home of the parent, guardian, or custodian.
(ii) A parent’s, guardian’s, or custodian’s resumption of contact or overtures toward
participating in the case plan or following the orders of the court in the months or
weeks immediately preceding the permanency planning hearing are insufficient
grounds for authorizing a plan to return or be placed in the home as the permanency
plan.
(iii) The burden is on the parent, guardian, or custodian to demonstrate genuine,
sustainable investment in completing the requirements of the case plan and following
the orders of the court in order to authorize a plan to return or be placed in the
home as the permanency goal; and
(B)(i) The parent, guardian, or custodian is making significant and
measurable progress toward remedying the conditions that:
(a) Caused the juvenile’s removal and the juvenile’s continued removal from the
home; or
(b) Prohibit placement of the juvenile in the home of a parent.
(ii) Placement of the juvenile in the home of the parent, guardian, or
custodian shall occur within a time frame consistent with the juvenile’s
developmental needs but no later than three (3) months from the date of the
permanency planning hearing;
(4) Authorizing a plan for adoption with the department filing a petition for
termination of parental rights . . . . [Exceptions not applicable.]
The Beans claim that the evidence presented at the permanency-planning hearing
demonstrated that they had made substantial and sustained progress on the case plan and trial
court orders toward having the three older children returned to their custody. The trial-
court, however, changed the goal to adoption—with a concurrent goal of reunification—
finding that the Beans had only partially complied with the case plan. The trial court found
7
Cite as 2017 Ark. App. 77
that neither of the Beans had stable employment, which caused concern about their ability
to maintain the home financially, and that the house had “not been kept clean enough to
say the environmental neglect is resolved.”
The Beans note that some type of placement with a parent, even if it cannot be
immediate, constitutes the top three preferred goals of the permanency-planning statute.
Pursuant to changes in the statutory scheme in 2009 and again in 2013, parents were
provided with greater protection and preference, and implementing an adoption plan falls
into the fourth position.
The order that resulted from the March 2015 review hearing that took place three
months prior to the permanency-planning hearing indicated that the Beans had “fully
complied with the case plan and court orders.” ADHS’s exhibit 1, which is the permanency-
planning court report filed by caseworker Selah Meyer, indicated that the Beans remained
in compliance with the case plan at the time of the permanency-planning hearing. Meyer
wrote that “the parents have worked hard complying with the Department.” The testimony
from Meyer at the permanency-planning hearing regarding the condition of the home was
consistent with the report, and multiple photographs were also admitted. Nonetheless,
Meyer testified that the home presented health-and-safety hazards sufficient that she did not
believe the children could return home that day, or in three months. The Beans claim that
the record does not support what ADHS attempted to demonstrate and what the trial court
found in regard to the environment of the home.
8
Cite as 2017 Ark. App. 77
Katherine Krueger, a case manager and stabilization coordinator for Seven Hills, 4
testified that she had been working with the Beans since February 2015—or five months.
Krueger interacted with the Beans personally and visited their home at least once a week,
and she stated that during her visits, there had “not been any signs of environmental neglect,
or it being overly messy.” She also noted that she had not received any complaints from
neighbors about the state of the house.
Likewise, the Beans’ neighbor, Patty O’ Bannon, testified that she had been to the
Beans’ home about seven times, with the last time being the morning of the hearing. She
stated that it had never “appeared to be unusually messy or dirty.” She described a few dishes
in the sink sometimes, a few baskets of clothes in the closet, and the bed not being made.
She believed the house to “always look livable.”
Finally, the Beans point out that C.B. 4 was born during the period that ADHS
asserted that the home was a total health-and-safety hazard—yet, C.B. 4 was allowed to
remain home. If the home’s environment presented such health-and-safety hazards that total
severance of the parent-child relationship was warranted, those hazards would exist for all
of the children.
The Beans acknowledge that they had clutter but claim it was not the type of clutter
that posed any type of health-and-safety hazard, and it was certainly not the type to warrant
an action as serious and grave as the lifelong separation of a parent from a child. They urge
4
Seven Hills is an organization to which the Beans were referred by ADHS for
housing assistance, including casework management related to maintaining a home.
9
Cite as 2017 Ark. App. 77
that the trial court’s finding that the environmental neglect had not been remedied was
clearly erroneous and that the evidence, including the photographs, is indisputable.
The Beans also argue that they demonstrated that their finances were sufficient to
maintain the household and that they were able and willing to work beyond a full-time
position to make ends meet for their children. Meyer testified that Mr. Bean, who carried
the responsibility of the family income, was financially unstable and would not be able to
pay the rent after the rent assistance from Seven Hills terminated. However, on cross-
examination, Meyer acknowledged that her comment was an assumption based on another
assumption that Mr. Bean was performing only odd jobs for a living.
O’Bannon testified that she hired Mr. Bean to help around her home and that he
had worked nearly every day for her since March, when she first hired him. She stated that
her records indicate that she had paid him a significant amount during that time period, and
she offered to be a continuing resource for the Beans if they needed it. Krueger, the Seven
Hills case manager, acknowledged that Mr. Bean worked many odd jobs.
Mr. Bean testified that he still had full-time employment with Walmart—and he was
not just working odd jobs—but that he had been on paternity leave since the birth of C.B.
4 on May 19, 2015, and had extended his return date by two weeks for therapy on his back.
He testified that he made $13.15 per hour at Walmart and had made $3000 in the two
months he was on leave doing odd jobs. Mr. Bean, working odd jobs during his time off,
made more money working those odd jobs during that time period than he would have
made at Walmart. He said he had no plans to quit his job at Walmart and that he would be
returning to work the Tuesday after the hearing; however, Mr. Bean provided no proof at
10
Cite as 2017 Ark. App. 77
the permanency-planning hearing that he was in fact scheduled to return to work at
Walmart.
The Beans provided evidence that they wrote out a daily schedule, provided a list of
emergency contacts, committed to keeping the children in therapy and daycare at Kids for
The Future therapy center, and had also obtained packets to have one or more of the
children evaluated for autism at the Schmeiding Center. Mr. Bean also testified that they
were willing to accept casework management through Seven Hills even after they were no
longer obligated because they were receiving cash assistance from it.
At the conclusion of the hearing, the trial court made an oral finding that Mr. Bean
did not have employment suitable for long-term stability and that the home was not
sufficiently clean for it to find that the environmental-neglect issue had been rectified. The
trial court also noted that “positives” were taking place and further commented that the
home was not a total health-and-safety issue; but that given the Beans’ past and the condition
that the home was in when the kids were removed, the trial court wanted the house to be
“everyday, spotless.” The trial court indicated that it was not “convinced” that TPR was
appropriate at that time and found that there should be a concurrent goal of adoption and
reunification, with ADHS starting IFS in the home, while still setting the case for TPR.
The parties argued as to whether reunification could exist as a concurrent goal or had to be
a secondary goal, and the trial court clarified that the goal would be concurrent because
ADHS had not brought the case to a place where the trial court would be convinced that
TPR was appropriate if asked to terminate that day.
11
Cite as 2017 Ark. App. 77
The Beans claim this evidence demonstrates that there was insufficient evidence to
go forward on TPR; accordingly, it was improper for the trial court to authorize a primary
plan of adoption. The Beans acknowledge that the burden shifted to them under section 9-
27-338(c)(3)(A)(iii) to demonstrate genuine, sustainable investment in completing the
requirements of the case plan and following the orders of the trial court, but they urge that
the hearing evidence demonstrated that they met that burden. The Beans argue that they
made significant and measureable progress from where the case started and that the home
had been free of health-and-safety hazards for an extended period of time. They submit that
a mistake was made when the trial court found that adoption was an appropriate
permanency-placement plan and that the permanency-planning order should thus be
reversed.
We find no merit to the Beans’ challenge to the intermediate permanency-planning
order. First, neither the permanency-planning statute, section 9-27-338(b)(1)(A), nor
Phillips v. Arkansas Department of Human Services, 85 Ark. App. 450, 158 S.W.3d 691 (2004), 5
support the Beans’ argument. In its July 1, 2015 permanency-planning order, the trial court
listed the permanency goal of the case as adoption with services to continue until the TPR
hearing, with a secondary concurrent goal of reunification also listed. Despite the trial court’s
finding concurrent goals of adoption and reunification at the June 16, 2015 permanency-
planning hearing, TPR and adoption were not the goals implemented immediately
thereafter by the trial court.
5
Phillips, supra, analyzes the “timing” of a permanency-planning hearing when an
order for no reunification of services has been entered rather than “whether” the statute
requires a hearing to be held regardless and the penalty for failure to do so.
12
Cite as 2017 Ark. App. 77
Although ADHS filed a combined petition for TPR and a motion for no
reunification of services on all four of the boys on September 22, 2015, just days prior to
the scheduled TPR hearing, on or about October 12, 2015, for reasons that are unclear, the
three older boys were sent home on a trial home placement where C.B. 4 was still in the
Beans’ custody. The October 20, 2015 TPR hearing was converted to another review
hearing, and on December 15, 2015, at the end of the sixty-day trial home visit, the visit
was extended for an additional forty-five days. It was the subsequent action, or inaction, by
the Beans that prompted ADHS to terminate the extended visit on January 11, 2016,
remove all the boys, and refile a TPR petition on February 19, 2016. Accordingly, because
the Beans were provided an opportunity to reunify with the children through the
subsequent trial home placement, we hold they were not harmed by the change in case goal
to include concurrent goals of adoption and reunification at the time of the permanency-
planning hearing.
III. Termination as to C.B. 4 in Light of No Permanency-planning Hearing
The Beans also challenge the trial court’s terminating their parental rights with
respect to C.B. 4 in light of its failure to hold a permanency-planning hearing with respect
to C.B. 4. We find no merit in this argument. The permanency-planning statute specifically
states that “nothing in this section shall be construed to prevent the [ADHS] or the attorney
ad litem from filing at any time prior to the permanency planning hearing a . . . petition to
terminate parental rights.” Ark. Code Ann. § 9-27-338(b)(1)(A) The termination statute,
section 9-27-341, provides that a permanency-planning hearing is not a prerequisite to the
filing of a TPR petition or to the trial court’s consideration of a TPR petition. The only
13
Cite as 2017 Ark. App. 77
requirement is an appropriate permanency plan, which the trial court had in this case. In a
recent case, the trial court held the adjudication hearing and the TPR hearing together. See
Burkett v. Ark. Dep’t Human Servs., 2016 Ark. App. 570, __ S.W.3d __. A petition to
terminate parental rights, therefore, is not contingent on the outcome of a permanency-
planning hearing and constitutes a freestanding proceeding pursuant to section 9-27-341.
Although section 9-27-341(b)(1)(A) states that “the circuit court may consider a
petition to terminate parental rights if the court finds that there is an appropriate
permanency-placement plan for the juvenile,” the statute does not require that this finding
be made specifically at a permanency-planning hearing. In a review order entered
subsequent to the permanency-planning hearing for C.B. 1, C.B. 2, and C.B. 3, and
subsequent to the adjudication of C.B. 4 as dependent-neglected, the trial court found that,
as to all four children, “DHS has made reasonable efforts to finalize a permanency plan.”
And in the TPR order for all four children, the trial court found that “[ADHS] made
reasonable efforts to finalize the permanent placement for the juveniles and the juveniles
cannot or should not be returned to the home of the parents.” In order to terminate parental
rights, ADHS must only be “attempting to clear a juvenile for permanent placement.” Ark.
Code Ann. § 9-27-341(a)(B)(2). ADHS had an appropriate permanency plan for the
children at the time of TPR—adoption—and adoptability is not challenged in this appeal.
We hold that there was no legal infirmity, therefore, with the trial court’s hearing on
ADHS’s TPR petition, regardless of what happened or did not happen at the previous
permanency-planning hearing.
14
Cite as 2017 Ark. App. 77
IV. Challenges to Substantive Findings Underlying TPR Order
Cases involving TPR are reviewed de novo on appeal. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). The appellate court will not reverse
the trial court’s decision unless the court’s finding of clear and convincing evidence is clearly
erroneous. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626
(2006). 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 committed. Gregg v. Ark. Dep’t of Human Servs., 58 Ark. App. 337, 952
S.W.2d 183 (1997).
Evidentiary decisions, such as those involved in determining whether statutory
grounds for TPR have been met, involve the trial court’s duty to judge the witnesses’
credibility. Appellate courts give due deference to the circuit court in these matters. Chastain
v. Chastain, 2012 Ark. App. 73, 388 S.W.3d 495. This deference is even greater in cases,
like this one, that involve child custody, as a heavier burden is placed on the judge to utilize
to the fullest extent his or her powers of perception in evaluating the witnesses, their
testimony, and the best interest of the children. Thomas v. Ark. Dep’t of Human Servs., 2012
Ark. App. 309, 419 S.W.3d 734. The credibility of any witness’s testimony is to be assessed
by the trier of fact, and the trier of fact may believe all, part, or none of it. See Brumley v.
Ark. Dep’t of Human Servs., 2015 Ark. App. 90, 455 S.W.3d 347.
The TPR analysis is twofold: it requires the trial court to find that TPR is in the best
interest of the children and that the parents are unfit under one of the nine enumerated
statutory grounds. Ark. Code Ann. § 9-27-341(b)(3)(A)–(B). First, “best interest” includes
15
Cite as 2017 Ark. App. 77
consideration of the likelihood that the children will be adopted and the potential harm
caused by returning custody of the children to the parent. Second, “unfitness” requires the
court to find sufficient evidence supporting one of the nine grounds. Id. After a two-day
hearing, the trial court found that TPR was in all of the boys’ best interest in that they
would likely find permanency through adoption and would be subject to potential harm if
returned to the Beans’ custody. The trial court further found the three grounds of unfitness
pled against the Beans. The Beans do not challenge the trial court’s finding regarding
adoptability but do challenge the findings regarding potential harm and the statutory grounds
for TPR.
A. Twelve-Months-Out-of-Custody, Failure-to-Remedy Ground
Found at section 9-27-341(b)(3)(B)(i)(a), this ground allows for TPR if it is in the
child’s best interest, and the child 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.
See also Brabon v. Ark. Dep’t of Human Servs., 2012 Ark. App. 2, 388 S.W.3d 69. There are
three conditions to this statute: (1) that the child has been adjudicated dependent-neglected,
(2) that the child has continued out of the custody of the parent for twelve months, and (3)
that the parent failed to remedy the conditions causing removal despite a meaningful effort
by ADHS to correct those conditions.
The trial court found that this ground applied to the three eldest boys because of the
temporal requirement that the children be out of the home for twelve months, which C.B.
16
Cite as 2017 Ark. App. 77
4 did not meet. The Beans concede the first two conditions but challenge the trial court’s
finding that they failed to remedy the conditions causing removal.
As noted in the TPR order, the issue causing removal, and on which the children
were adjudicated dependent-neglected, was environmental neglect. In regard to this ground,
the trial court specifically found that the “parents have failed to correct the environmental
neglect that initially caused the removal of the juveniles.” They claim that the record does
not support such a finding.
We disagree. One of “conditions that caused removal” in the case of the three oldest
children was, among other things, severe environmental neglect. On December 20, 2013,
ADHS investigator Shannalin Robertson visited the Beans’ home on a referral and described
the “filthy and unsafe” condition of the Beans’ trailer. A protective-services case was opened
on the Beans on February 12, 2014, and assigned to caseworker Selah Meyer. Between
February and July 2014, ADHS workers Meyer and Calla Taylor made multiple visits to the
home, but the Beans had not remedied the filthy conditions. On July 19, 2014, Meyer was
not allowed entrance into the house for a home visit, but she could observe similar
conditions through the doorway. ADHS took an emergency hold on the three children that
same day based on environmental neglect, inadequate supervision, and medical neglect. The
trial court subsequently adjudicated them dependent-neglected on September 16, 2014, for
reasons of environmental neglect.
At a review hearing held on October 20, 2015, pertaining to all four children, the
trial court found that the Beans were in partial compliance with the case plan. The trial
court decided to allow C.B. 4 to remain in the Beans’ care and to allow a trial home
17
Cite as 2017 Ark. App. 77
placement on the other three boys, with concurrent IFS. The trial court issued the following
warning regarding the Beans’ need to demonstrate that they could properly care for the four
children and maintain a clean and safe home:
Mr. and Mrs. Bean, we’re now to the all or nothing roll of the dice. You’re either
going to prove me right, that our services have worked, or you’re going to prove
everybody else right . . . that we won’t be able to—even though we don’t have the
evidence, our guts are worried about the fact that you could raise all four of these
kids . . . . I’m giving you a chance. Because in my gut I have concerns but I want to
make sure I have the facts to back up my gut. And you’re either going to do this or
you’re not . . . .
The trial court also detailed specific instructions for the Beans regarding the upkeep of their
home and safety concerns for the four children, which included expectations of meeting the
children’s special needs.
Two months later, on January 14, 2016, ADHS filed an ex parte motion for
emergency change of custody on C.B. 4 and removed all four children because the trial
home placement had failed. Meyer detailed in her affidavit that CASA worker Dianna Hearn
had visited the home on January 4, 2016, and reported serious concerns with the
environmental conditions of the home. There was “trash, food and dirt, dirty clothes on the
floors, clean clothes on the couch, vomit on the floors that had not been cleaned for several
days, trash can[s] overflowing, the children wearing dirty clothes, the floor was stained with
several days old spills and had not been cleaned in some time.” Meyer received a hotline
call on January 8, 2016, alleging that “the environment has a high severity of trash and dirty
underwear everywhere . . . dirty pull ups on the floor. There is vomit on the floor from a
week ago . . . . There is old food sitting on the floor and trash bags on the porch.” The
trash can was also allegedly “overflowing,” and there was no room to throw dirty diapers
18
Cite as 2017 Ark. App. 77
away. The hotline caller alleged that the basement had flooded two weeks ago, and there
were soaked foam mats, mold, and children’s toys in the basement. The hotline caller also
alleged that there was an unattended space heater in the basement bathroom being used to
“dry up the water.”
Meyer visited the home the same night the hotline call was received and reported
that it was found to be “worse than what the report stated.” She explained that, among
other things, C.B. 4 was crawling on a dirty floor in the living room unattended, and two
other children were sitting in high chairs and one had a dirty face. The Beans’ room “was a
disaster.” The children’s rooms “had piles of clothes in the closets and there was trash on
the wooden floor. The beds did not have sheets on them.” Meyer observed trash, toys, and
clothes throughout the house, including on the stairs and the living room floor; however,
she did not find any signs of flooding in the basement.
Despite these observations, Meyer allowed the Beans several days to remedy the
environmental hazards in the home. But on January 11, 2016, supervisor Stormy Randolph
visited the Beans’ home and observed it to “be in worse condition” and that the front door
was “blocked by items.” Meyer also noted concerns with C.B. 4’s health, stating “failure to
thrive [was] still in play.” She concluded that all of the children’s health and safety were in
danger due to environmental neglect, inadequate supervision, medical neglect, and failure
to thrive, and she removed the children from the home. The trial court subsequently found
probable cause existed to remove C.B. 4 to ADHS custody and to terminate the trial home
placement on the other three children, and it made the following specific findings, among
others, in its February 1, 2016 probable-cause order, among others:
19
Cite as 2017 Ark. App. 77
• The trial home placement started with an order that was very specific for how the
home should be maintained and how the parents should conduct themselves;
• The trial court gave the parents a chance to show they could handle the children
at home over the objections of ADHS, CASA, and the attorney ad litem;
• The trial court is troubled by the fact that the parents have been surrounded by
service providers, ADHS, and CASA but they failed to ask for help when confronted
with changing circumstances;
• The parents do not acknowledge the trouble in the home;
• The parents had numerous warnings to clean the home before ADHS finally
removed the children;
• The parents were not upfront with ADHS and CASA about their circumstances
despite the trial court ordering them to provide full access and for them not to keep
secrets and not to lie about their circumstances;
• Mr. Bean did not maintain income and employment stability as ordered by the trial
court;
• Clothing and bedding instructions were not followed;
• The photographs of the home over a substantial period of time show a home that
is completely unacceptable; and
• The parents demonstrated that they are not able to meet the special needs of the
children.
ADHS filed an amended TPR petition for all four children on February 19, 2016,
and the trial court held a TPR hearing for all four children on March 3, 2016. At the
hearing, the trial court received the following evidence relevant to the Beans’ failure to
remedy the environmental-neglect issues and the little likelihood of successful reunification.
CASA volunteer Dianna Hearn testified that she had visited the children twenty-six
times during the case, but had not been able to access and observe the home because the
Beans did not answer the door and had “not indicated to me, in any way, a willingness to
continue to cooperate with CASA.” Hearn also testified that Mr. Bean was vague with her
about his employment situation and she could not verify whether he had stable employment.
She discussed how the children had been thriving outside the home in ADHS custody, but
she had “seen a lot of changes in the boys” during the period of the trial home placement.
She stated that she was concerned for the children’s well-being because there had been no
20
Cite as 2017 Ark. App. 77
change in how the Beans parented since 2014. She also expressed concern about the Beans’
financial stability. She stated that she had “not seen a lot of what the Beans have learned be
applied. I know it has been tough on them and they have attempted to do what they have
been asked.”
Meyer stated that she had been the ADHS caseworker since the children had come
into care in 2014 and also for the earlier protective-service case. She summarized the history
of the case and testified that she had “gone through their home and pointed out safety
hazards for them. I explained to them their expectations for what a safe home looks like,
several times.” She listed the multiple services ADHS had provided the Beans throughout
the case, including parenting classes, medical, speech, occupational and physical therapy for
the children, individual and family counseling, clothing, visitation, transportation, and
medical- and mental-health evaluations. She explained that she also made referrals for them
to get furniture and appliances and noted that the family had been through IFS programs
twice. ADHS had helped the family with rent payments and with finding sources of
assistance to pay their bills. Meyer testified,
When the case in court opened, I was concerned about the state of their home . . .
those concerns are not resolved . . . . [the Beans] have been trained a lot, already.
We have offered every services there are. Parenting classes. They’ve had so many
parenting classes and they seem to be stubborn of their old ways. And they can change
for a little while, but when nobody is watching, they are back to what they believe
. . . how it should be done . . . . So the[y] learned some things . . . but they don’t
want to do what they’re told to do.
She explained that “they’ve not demonstrated an intention to keep their home in a different
way than in the beginning of this case. Only when people are watching them or telling
them I’m coming to see you . . . . If you surprise them, it’s most likely you’ll find a messy
21
Cite as 2017 Ark. App. 77
house.” Meyer concluded that “[w]e’re probably close to a year and a half now . . . . There
aren’t any other services that you can think of that are going to make a huge difference in
where we are today. I feel like we’re at a place where there’s little likelihood of me being
able to see reunification.” Ms. Meyer also testified that the Beans had had cases with ADHS
since 2002 and had received parenting classes during five prior cases. The trial court found
Meyer’s testimony to be credible.
IFS therapist Keri Timmons explained that even though flooding would put a stress
on any family, “even with the quote/unquote flooding and being sick, the services that I
had provided, that home should not have been in that condition. The problem isn’t when
someone is in the home helping them. It’s when no one is there watching . . . .”
Ms. Bean acknowledged that the numerous photographs in the record “reflect the
state of my house since the kids came back into care.” She claimed that “[g]oing forward,
if the kids were returned to our home, we would be able to keep that house clean.” But
Ms. Bean also testified that their lease was not going to be renewed and that they were
currently looking for a home. She admitted that she had not notified ADHS of this sudden
change of circumstances before the TPR hearing. She admitted that “on and off through
this case we’ve had trouble keeping the house,” and admitted that ADHS had been involved
with the family since 2002 and there had been “repeated problems” with environmental
neglect. She repeated that they had to move at the end of the month and that they did not
have a place to move to at the time of the TPR hearing but claimed they had the money
to move. She claimed that she did not want “help from others” and thus did not accept
WIC subsidies, despite acknowledging she willingly accepted ADHS’s rental-assistance
22
Cite as 2017 Ark. App. 77
payments. She also acknowledged that her parents voluntarily had been given custody and
guardianship of the parties’ six other children in 2009 to avoid ADHS troubles.
Mr. Bean confirmed that their lease would not be renewed at the end of the month.
He claimed that he had “a plan for moving out and finding a new place” but then stated,
“I’m leaving it up to Ms. Bean to find us a place.” He acknowledged that he had been fired
from his job at Walmart but claimed he had been “approved to go back” and was working
odd jobs at the time. He noted that he could not obtain loan funds for a new house because
he had “filed for bankruptcy three years ago.” He admitted that they had not kept the house
clean the entire case.
At the conclusion of the hearing, the trial court found, that “while there will be
volumes sent up to the next level [on appeal], 6 this case is very simple . . . . It started because
of environmental neglect.” The trial court stated, “[T]he proof is directly in the January
pictures. This Court pulled these kids because this house environment, after all of the
services, after all this time, after all of the eyes, was unacceptable.” We agree that the pictures
6
We note that the Beans’ counsel argues that the primary evidence to support their
position comes from the documents and the multitude of photographs admitted throughout
the course of this case. Despite making this argument, the Beans’ counsel abstracted 835
pages in this appeal. Rule 4-2(a)(5) of the Rules of the Arkansas Supreme Court and Court
of Appeals provides that the appellant’s abstract should consist of an impartial condensation
“of the material parts of all the transcripts in the record . . . . Information in a transcript is
‘material’ if the information is essential for the appellate court to confirm its jurisdiction, to
understand the case, and to decide the issues on appeal.” The 835-page abstract in this case
is egregious, at best, with its only redeeming quality being to enlighten us regarding the
conflicting evidence provided by the witnesses during the permanency-planning hearing
and the TPR hearing. While this is instructive in light of counsel’s attempt to cherry pick
only a handful of statements made by witnesses, counsel, and the trial court to bolster the
Beans’ argument, we remind counsel that overabstracting testimony can run afoul of Rule
4-2 just as underabstracting can violate the rule.
23
Cite as 2017 Ark. App. 77
from ADHS’s January 2016 visits depict a house in an unacceptable state of clutter and
uncleanliness for four small children, especially for a family currently participating in IFS.
The trial court characterized one picture in particular, showing baby C.B. 4 lying next to
several bags of trash, as “unacceptable” for a trial home placement and “no excuse, no flood,
no illness should’ve allowed this house to be in this condition.” The trial court stated that
“what is most alarming to this Court, after 14 months of working with the Department this
time . . . no help was asked for.” Although the trial court agreed that photos taken the day
of the TPR hearing showed the house in a cleaner and more acceptable state, it was still
concerned whether it would remain that way once court supervision was removed. The
trial court thus concluded there was little likelihood that “these issues can be resolved safely
for these kids.” The trial court also found that as for C.B. 1, C.B. 2, and C.B. 3, the Beans
had not remedied the recurring environmental-neglect issues that caused the initial opening
of the case.
All of the above evidence in the record supports the “failure to remedy” statutory
grounds with respect to C.B. 1, C.B. 2, and C.B. 3. De novo review shows no grounds for
a “firm conviction” that the trial court made a mistake in finding the Beans failed to remedy
the conditions that had caused the three oldest children’s removal. Despite the Beans’
completion of some services and partial compliance with the case plan, the trial court was
concerned that after fourteen months of services the Beans still had not reached a point
where they could safely parent and protect their children. Even full compliance with the
case plan is not a bar to TPR; the issue is whether the parent has become a stable, safe parent
able to care for his or her children. Villasaldo v. Ark. Dep’t of Human Servs., 2014 Ark. App.
24
 Cite as 2017 Ark. App. 77
465, 441 S.W.3d 62. The Beans’ partial compliance with a case plan does not justify reversal
of TPR case when the Beans continued to make decisions adverse to the children, i.e.,
letting the environmental-neglect issues reoccur throughout the case despite knowing it was
a major area of concern to the trial court and to ADHS.
As is plain from the statutory language, ADHS must show in a TPR proceeding that
the parent failed to correct the conditions that caused removal. The Beans failed to demonstrate
that they could maintain their home in the manner necessary to protect the children’s health
and safety. The trial court’s finding that, in the case of C.B. 1, C.B. 2, and C.B. 3, the
parents had failed to correct the environmental neglect that initially caused the removal is
supported by clear and convincing evidence—especially evidence concerning the failed trial
home placement and subsequent removal of all four children for recurring environmental
neglect. Meyer’s testimony as to the IFS provided to the Beans for fourteen months, the
involvement of CASA, and the rental and other material assistance that ADHS provided to
the Beans also support a finding that the Beans’ failure to remedy the environmental-neglect
issues that caused the case to open for the three oldest children was despite a meaningful
effort on ADHS’ part to provide reunification services. Despite fourteen months to
demonstrate to ADHS that they had resolved their environmental-neglect issues, the failed
trial home placement, the disregard of multiple warnings received throughout the case
regarding the condition of the home and the health of the children, as well as their hesitation
to cooperate with ADHS or ask for help when needed and surrounded by various service
providers, demonstrate the Beans’ inability and indifference to remedying the conditions
that caused removal.
25
Cite as 2017 Ark. App. 77
We hold that the evidence sufficiently supports this basis for TPR for the three oldest
children; accordingly, the trial court’s decision to terminate the Beans’ parental rights on
the failure-to-remedy ground was not clearly erroneous.
B. Aggravated-circumstances Ground—Little Likelihood of Reunification
The “aggravated circumstances” ground at Arkansas Code Annotated section 9-27-
341(b)(3)(B)(ix)(a)(3)(A), allows for TPR of parental rights if TPR is in the children’s best
interest, and “the parent is found by a court of competent jurisdiction . . . to [h]ave subjected
any juvenile to aggravated circumstances.” Aggravated circumstances can mean many things,
but in this case, the trial court found that aggravated circumstances existed with respect to
all four children because “there is little likelihood that services to the family will result in
successful reunification.” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i).
In the TPR order, the trial court noted that the Beans have had ten children—six of
whom were already in the custody and under the guardianship of a relative when the case
began, and that they had a history of problems with supervision and environmental neglect
that spanned from 2002. The trial court found that the Beans have had on-going sporadic
contact with ADHS since then, and that in this case, despite repeated orders from the trial
court, the Beans failed to maintain their home despite the offer of services by ADHS. The
trial court found that the Beans have failed to follow its orders regarding the state of
cleanliness expected, and that there was little likelihood that further services would result in
successful reunification.
The Beans challenge this finding in light of the evidence discussed previously. We
disagree and hold that the evidence clearly supports the trial court’s finding, applicable to all
26
Cite as 2017 Ark. App. 77
four children, that there was little likelihood that future services would result in successful
reunification. Caseworker Meyer, whom the trial court specifically found to be a credible
witness, testified about the numerous services provided throughout the case. Despite these
services, the Beans at no point showed they could consistently maintain a sanitary and safe
household for four small children.
Although the Beans did present evidence that they had cleaned the house to some
extent as of the day of the TPR hearing, we have previously held that evidence presented
at a TPR hearing that parents have made overtures toward participating in the case plan
while TPR is looming is an insufficient reason to not terminate parental rights. Ark. Code
Ann. § 9-27-341(a)(4)(A); see Wilson v. Ark. Dep’t of Human Servs., 2015 Ark. App. 666,
476 S.W.3d 816. In determining “little likelihood,” the trial court considered the entire
history of the Beans’ involvement with ADHS, including their multiple engagements with
ADHS due to environmental and medical neglect since 2002, and the fact that they had
surrendered custody of six other children to relatives. We hold that the evidence before us
supports the trial court’s finding that there was little likelihood that continued services would
remedy the Beans’ circumstances and for them to sustain the improvement to an extent
acceptable to foster reunification.
C. Best Interest Finding—Potential Harm
The Beans focus on what Meyer said in regard to potential harm, which was only
that she had concerns about the children gaining weight if returned home to the Beans and
that the home, in the worst state that she had seen it presented, potential harm to the
children. The Beans urge that this evidence, as previously discussed, does not support
27
Cite as 2017 Ark. App. 77
Meyer’s continuing concerns. They note that the children’s fluctuations in weight were a
problem for the foster parents as well, and they submit that their home simply had not posed
a health-and-safety issue to the children in a year. They urge that it does not matter what
the worst state of the home was when it existed long before the TPR hearing. The Beans
question what more they could do to demonstrate that they were capable of maintaining
their progress other than to keep their home free of health-and-safety hazards for a year.
Accordingly, they claim that any concerns Meyer continued to have were unreasonable and
that any finding that the children were at risk of potential harm was not supported by the
evidence.
We disagree and reiterate that there is no requirement to identify the specific
potential harm. Section 9-27-341(b)(3) requires that the TPR decision be based upon a
finding, by clear and convincing evidence, that TPR is in the children’s best interest while
considering the potential for harm to the children’s health and safety if the children were
returned to the parent. The trial court must only find by clear and convincing evidence that
TPR is in the children’s best interest, giving consideration to the likelihood of adoption and
the risk of potential harm. The likelihood of adoption and the risk of potential harm are
merely factors for the court to consider in its analysis.
In making the decision whether to terminate parental rights, the trial court has a duty
to look at the case as a whole and how the parent has discharged his or her parental duties,
the substantial risk of serious harm the parent imposes, and whether the parent is unfit. In re
K.M.C., 62 Ark. App. 95, 969 S.W.2d 197 (1998). Our supreme court has held that this
“harm analysis” should be conducted in broad terms and in a forward-looking manner. See
28
Cite as 2017 Ark. App. 77
Bearden v. Ark. Dep’t of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001); Dowdy v. Ark.
Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722;. This includes the harm the
child suffers from a lack of a stable and permanent home. Rossie-Fonner v. Ark. Dep’t of
Human Servs., 2012 Ark. App. 29, 388 S.W.3d 38.
We hold that the trial court clearly considered the potential harm these children
would face if returned to the Beans and correctly found TPR to be in their best interest.
The circuit court found that the Beans failed to remedy the conditions that caused the initial
removal; accordingly, the children would be at risk of potential harm for the very same
reason they were initially removed. Additionally, C.B. 4 would face potential harm based
on the parents’ inability to benefit from all the prior ADHS supervision and other services
and be the fit parents he needed. The trial court rightly relied on the record of the parents’
level and consistency of compliance in the entire dependency-neglect case and evidence
presented at the TPR hearing in making its decision whether it was in the children’s best
interest to terminate parental rights. Ark. Code Ann. § 9-27-341(a)(4)(B). The Beans’
history with ADHS over fourteen months gave the trial court no assurances that all four of
the children would be safe from recurring environmental- and medical-neglect issues or that
the Beans would consistently apply the parenting skills they allegedly learned during ADHS
services.
Furthermore, this court can affirm the trial court’s decision for any reason so long as
it is correct. Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). The evidence at
the TPR hearing undisputedly indicated that the Beans were in no position to have the
children returned to their custody at the time of TPR because the lease on their home was
29
Cite as 2017 Ark. App. 77
set to expire, and they had not secured new living arrangements. Without the ability to
provide a stable home—let alone an environmentally safe home—the Beans would again
expose the children to potential harm. The evidence of Mr. Bean’s continued financial and
employment instability also supports the trial court’s finding of potential harm.
After considering the potential harm, the trial court correctly found that TPR was
in these children’s best interest. The three older children had been in foster care for fourteen
months at the time of the TPR hearing with no clear plan for reunification, and C.B. 4 had
been subsequently adjudicated dependent-neglected as well. Further delay would go against
the clear legislative intent of the TPR statute, which is to provide permanency in a time
frame consistent with the child’s development, not the parent’s. Linker-Flores v. Ark. Dep’t
of Human Servs., 364 Ark. 224, 217 S.W.3d 107 (2005). Stability and permanence for
children are the objectives of the TPR procedure, and living in continued uncertainty is
itself potentially harmful to children. See Bearden, supra.
Affirmed.
GRUBER, C.J., and BROWN, J., agree.
Leah Lanford, Ark. Pub. Defender Comm’n, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
30