Sarut v. Ark. Dep't of Human Servs.

Cite as 2015 Ark. App. 76
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-878
REBECCA SARUT Opinion Delivered February 11, 2015
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. JV 2013-123-3]
ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES AND A.B.1, A.B.2, ZIMMERMAN, JUDGE
AND A.B.3, MINOR CHILDREN
APPELLEES AFFIRMED
RITA W. GRUBER, Judge
Appellant, Rebecca Sarut, appeals from an order of the Washington County Circuit
Court terminating her parental rights to her children: A.B.1, born April 21, 2008; A.B.2,
born October 29, 2010; and A.B.3, born March 29, 2012. She contends on appeal that the
evidence was insufficient to support the circuit court’s decision, specifically the court’s
findings of grounds for termination and potential harm. We find no error and affirm the
circuit court’s order.
The events that led to the termination began in February 2013, when local law
enforcement contacted the Arkansas Department of Human Services (DHS) for assistance
with appellant’s three children. Appellant and the children’s father, Franklin Boyt, were
living in a hotel room in Washington County with the children.1 Mr. Boyt had been sent
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Mr. Boyt’s parental rights were terminated in an order entered on May 5, 2014. He
has not filed an appeal from that order. Mr. Boyt and appellant were still married at the time
Cite as 2015 Ark. App. 76
to the hospital for an apparent drug overdose. Appellant appeared inebriated and was slurring
her words and stumbling with A.B.3 in her arms. She tested positive for methamphetamine,
opiates, and benzodiazepines and admitted to using methadone. The hotel room was filthy:
dirty dishes with molded food, piles of dirty clothes on the floor, and piles of dirty clothes
on the children’s beds. The children were dirty and eating grapes covered in kool-aid
powder when DHS arrived. Appellant also had a history with DHS—a true finding of
newborn illegal-substance abuse—because she and A.B.2 tested positive for amphetamines
at the time of A.B.2’s birth in October 2010.
DHS assumed immediate emergency custody of the children, and the court
adjudicated them dependent-neglected in an order entered March 18, 2013. The court also
made a true finding against both parents for inadequate supervision and environmental
neglect. The court ordered appellant to undergo a drug-and-alcohol assessment and follow
the recommendations, submit to weekly random drug screens, complete parenting classes,
obtain and maintain stable housing and employment, demonstrate the ability to protect the
children and keep them safe from harm, and pay weekly child support in the amount of $30.
The goal of the case was set as reunification.
In a review order five months later, the court found that appellant had completed
many of the requirements but had missed her drug-and-alcohol assessment and had not
rescheduled. The court also found that she had missed some random drug screens. Finally,
the court ordered her to “we[a]n off methadone.”
of appellant’s termination hearing but were no longer living together.
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The court reviewed the case again in December 2013. In its order of December 20,
2013, the court found that appellant had not “we[a]ned down/off on her methadone” and
was “still at Phase One after nearly 3 years of methadone treatment.” The court found that
she needed to complete inpatient treatment to address her addiction to opiates. The court
also determined that she had failed to maintain stable housing and to complete a drug-and-
alcohol assessment.
In a permanency-planning order entered February 5, 2014, the court established
concurrent goals of reunification and adoption, found that DHS had made reasonable efforts
to provide family services toward reunification, and stated that appellant had made
“substantial progress.” However, the court also found that appellant was still on methadone,
had not completed inpatient treatment, and still had no stable housing. The court again
ordered appellant to “get off methadone.”
After a second permanency-planning hearing conducted three months later, the circuit
court found that, despite services offered and opportunity given, appellant still was not
prepared to care for her three children, finding that she “has not gotten off methadone, has
not completed inpatient drug treatment, has not submitted to drug screens, has not
maintained stable employment, [and has] not obtained drug/alcohol assessment.” The court
changed the goal to adoption, authorizing DHS to pursue termination of appellant’s parental
rights.
At the termination hearing, appellant’s case worker Miranda Collins testified that the
children had been in foster care for seventeen months, that appellant had been ordered for
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the entire seventeen months to obtain a drug-and-alcohol assessment but had failed to obtain
one, and that appellant resided with her mother, whose home had been found to be
inappropriate for the children after a home study was conducted for placement. Ms. Collins
testified that appellant was unable to enter residential substance-abuse treatment, which the
court ordered in December 2013, because she became pregnant and no facility would accept
her for treatment if she was taking methadone while pregnant. Ms. Collins testified that the
children were placed together in foster care and were doing very well. All three were on
track developmentally and had “come a long way since coming into care.” She also testified
that the children were highly adoptable and that the current foster home was a potential
permanent placement for all three children. She opined that it was in the children’s best
interest to terminate appellant’s parental rights, that appellant had not demonstrated the
ability to parent and care for the children, and that DHS had not received the child support
from appellant that the court ordered in March 2013.
Appellant testified that she had been living with her mother in a two-bedroom
apartment, although recognizing that the home had been deemed inappropriate for her
children, so that her mother could help while she was pregnant. She stated that she had been
going to NA meetings but had no proof of that fact. She also testified that she had given birth
the week before the hearing, that the child had been born positive for methadone, and that
she had “signed over” her rights to the infant’s father (not Mr. Boyt). She also admitted that
she was not current on her child support, stating that she was “a little bit behind on paying.”
Regarding why she had failed to obtain a drug-and-alcohol assessment for almost a year and
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a half, she said she missed her appointment because she had another appointment for
something (she could not remember what) and that DHS had not given her a new referral.
She testified that she was still taking methadone but that she was almost “completely done
with it.” Finally, she testified that she was still married to Mr. Boyt, that she had not seen
him since he had been out of jail, that she hardly ever talked to him, and that he had come
to the hearing with her sister and not with appellant.
The attorney ad litem recommended termination, arguing that the children needed
permanency, that they had been out of appellant’s care for a good portion of their lives, and
that they had been thriving in their foster home. She was concerned with appellant’s
continued long-term addiction to methadone and her inability to wean herself off it.
In its oral pronouncement from the bench, the circuit court expressed concern about
how appellant would be able to support her three children when she had been unable to pay
court-ordered child support of only $30 per week. The court was very concerned that, after
more than three years of treatment, appellant had been unable to wean off methadone. This,
coupled with her failure to obtain a drug-and-alcohol assessment or complete inpatient
treatment to address her addiction, convinced the court that appellant could not safely and
properly parent her children. The court also recognized that appellant was still married to Mr.
Boyt, who continued to have a relationship with her family. The court was concerned that
continued contact with Mr. Boyt, whose parental rights had been terminated, would be
harmful to the children.
In its order, the court found by clear and convincing evidence that termination was
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in the children’s best interest, including consideration of the likelihood of adoption and the
potential harm to the children caused by continued contact with appellant. The court also
found clear and convincing evidence of three grounds: (1) the children had been adjudicated
dependent-neglected and out of the custody of appellant for twelve months, and despite a
meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused
removal, those conditions had not been remedied; (2) the children lived outside the home
of the parent for a period of twelve months and the parent had willfully failed to provided
significant material support, here court-ordered child support; and (3) other factors or issues
arose subsequent to the filing of the original petition that demonstrate that return of the
children to appellant’s custody is contrary to their health, safety, or welfare and that, despite
the offer of appropriate family services, appellant has manifested the incapacity or indifference
to remedy the subsequent issues or factors or rehabilitate the circumstances that prevent
return to her custody. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2013).
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001). At least one statutory ground
must exist, in addition to a finding that it is in the child’s best interest to terminate parental
rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341
(Supp. 2013). In making a “best interest” determination, the trial court is required to
consider two factors: (1) the likelihood that the child will be adopted, and (2) the potential
of harm to the child if custody is returned to a parent. Ford v. Ark. Dep’t of Human Servs.,
2014 Ark. App. 226, at 2, 434 S.W.3d 378, 380. Adoptability is not an essential element but
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is rather a factor that the trial court must consider. Id. Likewise, the potential harm to the
child is a factor to be considered, but a specific potential harm does not have to be identified
or proved by clear and convincing evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark.
App. 781, at 10, 379 S.W.3d 703, 709. The potential-harm analysis is to be conducted in
broad terms. Id. It is the “best interest” finding that must be supported by clear and
convincing evidence. Id. The appellate inquiry is whether the trial court’s finding that the
disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.
Dep’t of Human Servs., 329 Ark. 243, 247, 947 S.W.2d 761, 763 (1997). Credibility
determinations are left to the fact-finder, here the trial court. Schaible v. Ark. Dep’t of Human
Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.
The intent behind the termination-of-parental-rights statute is to provide permanency
in a child’s life when it is not possible to 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. Ark.
Code Ann. § 9-27-341(a)(3) (Supp. 2013). Even full compliance with the case plan is not
determinative; the issue is whether the parent has become a stable, safe parent able to care
for his or her child. Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371; Ford, 2014 Ark.
App. 226, at 3. 434 S.W.3d at 381. Finally, a parent’s past behavior is often a good indicator
of future behavior. Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371.
For her first point on appeal, appellant argues that the evidence was insufficient to
support the court’s findings on all three grounds for termination. With regard to the first
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ground, appellant argues that DHS failed to plead a factual basis to support this ground in its
petition. As support for her argument, she cites case law explaining that termination will not
be allowed solely on the basis of a ground not pleaded in the petition for termination. See,
e.g., K.C. v. Ark. Dep’t of Human Servs., 2010 Ark. App. 353, 374 S.W.3d 884. That is not
the situation here. All three grounds found by the court to support termination were
specifically pleaded in the petition for termination. Appellant was on notice of all three
grounds and had the opportunity in a hearing to be heard. In the alternative, she argues that
she remedied the conditions that caused removal because, although still married to Mr. Boyt,
she was no longer living with him; although she continued to use methadone, she had not
tested positive for methamphetamine since the time of removal; and, although she missed her
appointment for a drug-and-alcohol assessment, there had been no further discussion of an
assessment until March 2014, when she was pregnant and was unable to obtain inpatient
treatment. We turn to the evidence presented to support the court’s finding. Appellant’s
children were taken into custody for inadequate supervision due to the parents’ drug use and
environmental neglect due to inappropriate housing. Appellant was, admittedly, still addicted
to methadone at the hearing, had failed either to have a drug-and-alcohol assessment or to
obtain inpatient drug treatment, and was admittedly living in a home that had previously
been deemed inappropriate for her children. We hold that the court’s finding of this ground
is not clearly erroneous.
With regard to the failure-to-support ground, appellant contends that she testified that
she was “a little behind” on paying child support but that she did have enough income to
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support her children. She argues that there was clearly conflicting testimony regarding her
child-support-payment history. Perhaps. But appellant’s caseworker testified that appellant
had not paid child support as ordered. Appellant testified that she was behind but offered no
evidence of any payments. Credibility determinations are for the circuit court to make.
Schaible, 2014 Ark. App. 541, at 8, 444 S.W.3d at 371. Again, we cannot say that the circuit
court’s finding is clearly erroneous. Further, because only one statutory ground is necessary
to support termination, it is not necessary to address appellant’s argument regarding the third
ground.
For her second point on appeal, appellant argues that the record is “devoid” of any
evidence of potential harm to the children if returned to her custody. The potential harm to
the child is a factor to be considered, but a specific potential harm does not have to be
identified or proved by clear and convincing evidence. Schaible, 2014 Ark. App. 541, at 9,
444 S.W.3d at 372. The potential-harm analysis is to be conducted in broad terms. Id. It is
the “best interest” finding that must be supported by clear and convincing evidence. Id.
Here, the court was very concerned with appellant’s inability and seeming indifference
to overcoming her drug addiction. After more than three years of treatment, appellant had
been unable to wean off methadone. This, coupled with her failure to obtain a drug-and-
alcohol assessment and her failure to complete inpatient treatment to address her addiction,
convinced the court that appellant could not safely and properly parent her children. The
court was also concerned with appellant’s failure to obtain and maintain stable housing. She
was living with her mother at the time of the hearing in a two-bedroom apartment that had
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been determined to be inappropriate for the children. Finally, the court recognized at the
hearing that appellant was still married to Mr. Boyt, who continued to have a relationship
with her family. The court was concerned that continued contact with Mr. Boyt would be
harmful to the children. The court is not required to find that actual harm would result or
to affirmatively identify a potential harm. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark.
App. 715, at 12, ___ S.W.3d ___, ___. We find no clear error in the circuit court’s finding
that termination of appellant’s parental rights was in the children’s best interest.
Affirmed.
KINARD and BROWN, JJ., agree.
Dusti Standridge, for appellant.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
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