Weathers v. Arkansas Department of Human Services

Cite as 2014 Ark. App. 142ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-938
Opinion Delivered February 26, 2014
RICHARD WEATHERS and LINDA APPEAL FROM THE PULASKI
VONDRAN COUNTY CIRCUIT COURT,
APPELLANTS EIGHTH DIVISION
[NO. 60 JV-12-1249]
V.
HONORABLE WILEY A. BRANTON,
ARKANSAS DEPARTMENT OF JR., JUDGE
HUMAN SERVICES
APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
Linda Vondran and Richard Weathers appeal a Pulaski County Circuit Court order
that terminated their parental rights to their child D.V. We affirm.
I. Background
This case started with a telephone call to the state child-abuse hotline. The
anonymous caller alleged that Linda Vondran was mentally challenged and unable to care
for D.V., a newborn. The Arkansas Department of Human Services (DHS) began to
investigate these allegations in June 2012 while Linda and D.V. were still in the hospital
under observation. DHS’s investigative report states that the hospital staff was concerned
about Linda’s behavior and that she had not been feeding the baby. A few days later the
hospital admitted Linda into its psychiatric ward because of suicidal ideations. DHS
exercised an emergency hold on D.V. Linda’s mental condition and how it affects her
ability to care for D.V. is a primary issue in this case. Also at issue here is the behavior of
1
Cite as 2014 Ark. App. 142D.V.’s father, Richard Weathers. During its initial investigation, DHS learned from Linda
that Richard was in prison because he was “mean to her” and had “pulled a knife” on her
while she was pregnant with D.V.
The circuit court granted DHS’s ex parte request for emergency custody on 25
June 2012. Three days later the court entered an interim order, requiring that Linda
submit to a psychological evaluation and random drug-and-alcohol screenings. The court
also ordered DHS to perform DNA testing to see if Richard Weathers was D.V.’s father,
and it prohibited Richard from contacting D.V.
In July 2012 the court adjudicated D.V. dependent neglected due to the
emergency conditions that led to his removal from his mother’s custody. The court found
that Linda was not emotionally equipped to care for D.V. and was admitted to a
psychiatric ward because of suicidal ideations. The court found that, based on Linda’s
testimony at the hearing, she was “unable to meet minimum requirements of being a
parent due to low mental functioning (which was obvious to the Court), particularly
given the fact that we are dealing with a newborn child who is 100% dependent on the
caregiver to meet his every imaginable need.” The court’s concern for D.V.’s welfare was
also fueled by its finding that Linda was a “domestic violence victim and intends to return
to her abuser.” The court advised Linda that a reunion with D.V. “will be more difficult
for her to achieve” if she remained with Richard, that she did not have an unlimited
amount of time to pursue reunification with D.V., and that the court had “other means of
achieving permanency . . . which include[s] termination of parental rights and adoption.”
The court granted Linda supervised visitation with D.V. but ordered that Richard have no
2
Cite as 2014 Ark. App. 142contact with the child upon his release from prison. The court also set the case goal as
reunification and approved DHS’s case plan.
At a November 2012 review hearing, the court determined that no progress had
been made. It found that Linda had subjected D.V. to “aggravated circumstances” based
on Linda’s testimony and her psychological evaluation. The court was particularly
concerned that Linda continued to express suicidal ideations and that she intended to
reunite with Richard when he was released from prison. Dr. Paul Deyoub, who
conducted Linda’s psychological evaluation, wrote that Linda’s “IQ was 63, her adaptive
ability is just as low, she has no concept how to live independently, how to take care of
the baby, how to keep herself and the baby safe, or how to provide for this child . . . she is
not capable of taking care of this child and the baby should not be placed with her.” In a
written order, the court found that DHS had made reasonable efforts to further the goal of
reunification, including foster-care placement and board payment, referrals for counseling,
a referral for DNA paternity testing, psychological evaluations, and a referral for parenting
classes, but that these services were unlikely to result in a successful reunification because
of Linda’s limited participation. The court ordered her to follow up on her individual
counseling and “get whatever mental health services she can as she needs to be under
regular mental health services.” The court also wrote: “the mother has her work cut out
for her,” but that it intended to give her more time to try to reunite with D.V. The
court’s order also stated that if Richard was determined to be the biological father of D.V.,
then DHS was to provide services for him too.
3
Cite as 2014 Ark. App. 142In December 2012, Linda’s court-appointed attorney moved the court to appoint
Linda an attorney ad litem because of concerns about her low IQ and the results of Dr.
Deyoub’s psychological evaluation. The court granted the request and appointed a
attorney ad litem for Linda.
At the permanency-planning hearing in April 2013 the circuit court changed the
case goal from reunification to adoption, concluding that there had been “a lack of
material progress” and that a return of D.V. to his mother’s custody would be contrary to
his welfare and not in his best interest. The court found that Linda had made a statement
about intending to harm D.V. and reasoned that “[i]t appears to the Court that the mother
is unable to take care of herself much less a child.”
The permanency-planning order stated that Richard Weathers is D.V.’s biological
father and that DHS had submitted reports on Richard. The court considered the results
of Richard’s psychological evaluation in its decision to change the case goal from
reunification to adoption. Dr. Deyoub diagnosed Richard with borderline intellectual
functioning and antisocial-personality disorder. The court relied on Dr. Deyoub’s
conclusion that Weathers “is an antisocial individual with a substantial history of criminal
activity, domestic abuse, incarceration, drug dealing, and infidelity. Almost every area of
his life is affected by his antisocial personality and conduct. I could not think of a worse
fate for [D.V.], at 9 months of age, than to be placed with either of these two people
[Linda and Richard]. I am not recommending any services for Richard Weathers and
recommend no contact with [D.V.]”
4
Cite as 2014 Ark. App. 142The court ordered Richard to continue in therapy and counseling, attend anger-
management counseling at DHS’s expense, attend domestic-abuse counseling at DHS’s
expense, attend parenting classes, submit to random drug-and-alcohol screens, clear up his
criminal charges, and maintain stable and appropriate housing and income. The court
ordered Linda to attend individual therapy and counseling, attend parenting classes, submit
to random drug-and-alcohol screens, stay on her medications, and comply with
medication management as recommended.
For DHS’s part, the court concluded that it had made reasonable efforts to provide
reunification services between the parents and D.V. The court found that DHS had
provided referrals for counseling, a referral for DNA paternity testing, psychological
evaluations, referrals for parenting classes, worker visits, psychiatric and medication
management, drug screens, daycare transportation, car seat, clothes voucher, and medical
services.
DHS petitioned to terminate Linda Vondran’s and Richard Weathers’s parental
rights to D.V. in May 2013, and the court held a termination hearing two months later.
II. Termination Hearing
Five witnesses testified during the July 2013 termination hearing. Vicki Lawrence,
Linda’s therapist, testified first. She said that Linda had an initial assessment in early May
2013 and had only attended one session since. Lawrence told the court that Richard had
refused to bring Linda to therapy, which greatly limited her contact with Linda. The
“number-one concern” Lawrence had for Linda was that she was in an abusive
relationship with Richard and that she was scared to leave. Lawrence diagnosed Linda as a
5
Cite as 2014 Ark. App. 142physical-abuse victim with major depression and borderline intellectual functioning. She
said that Linda recognized that she was unable to take care of D.V. without help. Linda
reportedly told Lawrence that she would not consider going to a battered women’s shelter
but would consider an “adult-care situation.” Lawrence told Linda that the first step
would be to “leave the abusive relationship.” Despite this advice, Linda told Lawrence
that she had no immediate plans to separate from Richard.
Richard’s therapist, Kimberly White, testified too. White told the court that she
discontinued couples counseling with Richard and Linda after two sessions because
Richard was disruptive and inappropriate; she also said that Linda was afraid of Richard.
White testified that Richard was dishonest, manipulative, played the victim, was extremely
defensive, and did not take responsibility for his decisions. White summarized her time
with Richard this way: “[H]is therapy was not successful.”
Shanesha Arbor, the DHS caseworker, also testified during the termination hearing.
She said that Linda had visited D.V. consistently while he was in foster care. Linda had
obtained a no-contact order after the 2012 knife incident but dropped it when she
decided to move in with Richard. She then reportedly told Arbor that she wanted to
leave Richard but could not. According to Arbor, Richard and Linda had been living
together since March 2013 and they did not report truthfully about their living situation at
the permanency-planning hearing. Arbor reported that the home that Richard and Linda
shared was well maintained and appropriate, and both parents had adequate sources of
income through disability payments.
6
Cite as 2014 Ark. App. 142Arbor stated, without objection, “I have provided this family counseling,
psychological evaluations, drug screens, approved foster home with board payment, day
care, transportation, clothing voucher, medical, and DNA testing.” Arbor said that DHS
did not believe that Linda is able to care for D.V. on her own because she didn’t seem to
have anybody to support her, that the domestic violence between Richard and Linda
would create an unstable environment for D.V., and that termination of their parental
rights is in D.V.’s best interest. She also told the court that D.V. was an adoptable, normal
one-year old child.
Linda testified. As a witness, she admitted lying to the court about her living
situation at the permanency-planning hearing. “I don’t know if it’s okay for [Richard] to
hit me. I stay with him because I love him . . . I don’t think I want to leave.” She spoke
of her desire to parent D.V. but said she needed someone to show her how to change a
diaper, how much to feed him, and “just somebody showing me.” She testified that
Richard was not a danger to D.V., that she was okay living with Richard, and that she felt
she could care for D.V. with some help.
Richard took the witness stand and denied physically abusing Linda. He also spoke
of his desire to parent D.V. as he had his other nine kids, the oldest of whom is thirty. He
testified that he had a good home and adequate income to care for D.V. He denied
having any antisocial traits or anger-management issues. “I’m normal just like everybody
else” and “[Linda] will say I’m mean, but it’s only for her best interests.” He
acknowledged that Linda would need some “guidance” but believed that “both of us
could raise the baby.” On cross-examination, Richard admitted that he pled guilty to
7
Cite as 2014 Ark. App. 142aggravated assault against Linda for wielding a knife during a dispute with her while she
was pregnant, a plea for which he spent a year in prison. He also admitted returning to
jail in 2013.
The court received Richard’s psychological examination as evidence at the
termination hearing. That report states that the examiner was concerned that Richard
wanted “to dominate a mentally retarded woman, 30 years younger than him.”
In closing arguments, Linda’s attorney told the court: “The only thing we’re
asking is just a little more time to investigate possible placement of my client into an adult-
services program for the possibility that she could have help in raising her son.” Linda’s
attorney ad litem expressed grave concern about Linda’s physical safety and stated,
Your Honor, I can’t imagine that she would be able to take care of
this baby in an abusive home without services—without the amount of
services that she would need to protect both herself and this child. Sadly,
I’m going to have to agree with the recommendation of the department for
rights to be terminated. We don’t have the framework necessary to protect
my client and this child.
Richard’s attorney asked the court to dismiss DHS’s petition and reinstate the case goal of
reunification.
At the hearing’s conclusion, the court terminated Linda’s and Richard’s parental
rights. It found clear and convincing evidence that D.V. had been adjudicated dependent-
neglected, had continued out of the home for twelve months, and despite a meaningful
effort by the Department to rehabilitate the parents and correct the conditions that caused
the removal, those conditions had not been remedied. The court further found that after
the original petition for dependency-neglect was filed, other issues arose that demonstrated
D.V.’s return to his parents was contrary to his health, safety, or welfare and that Richard
8
Cite as 2014 Ark. App. 142and Linda had manifested the incapacity or indifference to remedy the subsequent issues or
factors or rehabilitate their circumstances. Finally, the court found that Richard and Linda
had subjected D.V. to aggravated circumstances—namely, that there was little likelihood
that services to the family would result in successful reunification.
For Linda, the court found that “the bottom line is that it is clear from Dr.
Deyoub’s report as well as Ms. Lawrence’s report and testimony, that the mother could be
given the rest of the time in the world to work on services, and still would not be able to
rise to the level necessary to provide the minimum standard of care required to raise her
child.” In particular, the court found that Linda intended to stay with an abuser and that
dismissing the order of protection was further proof that she intended to remain in a
harmful environment.
Richard, according to the court, “lacks credibility, has an extensive criminal
history, and denies issues that demand resolution in therapy (specifically, domestic abuse)
which works to prevent him from addressing his problems. Whether the Court gave him
ninety days or a hundred-eighty days, it would make no difference.”
The court also found by clear and convincing evidence that it was in D.V.’s best
interest to terminate Linda and Richard’s parental rights, and it specifically considered the
likelihood that D.V. would be adopted and the potential harm to his health and safety if
he were returned to his parents’ custody.
III. Legal Analysis
Termination of parental rights is an extreme remedy and in derogation of the
natural rights of the parents; but parental rights will not be enforced to the detriment or
9
Cite as 2014 Ark. App. 142destruction of a child’s health and well-being. Pratt v. Ark. Dep’t of Human Servs., 2012
Ark. App. 399, 413 S.W.3d 261. DHS must prove the statutory grounds for termination
of parental rights by clear and convincing evidence and that termination of parental rights
is in the child’s best interest. Id. Clear and convincing evidence is that degree of proof
that will produce in the fact-finder a firm conviction that the allegation has been
established. Id. When the burden of proving a disputed fact is by clear and convincing
evidence, we ask whether the circuit court’s finding on the disputed fact is clearly
erroneous. Id. We defer to the circuit court’s assessment of witnesses’ credibility. Id.Resolving inconsistencies in testimony is best left to the circuit judge. Id. A finding is
clearly erroneous when, although there is evidence to support it, we are left with a
definite and firm conviction that a mistake has been made. Id.A. Linda Vondran’s Argument
Linda specifically argues that the court was fully aware of her mental challenges yet
did not ensure that she was offered reasonable accommodations under the Americans with
Disabilities Act (ADA). Because DHS failed to provide her with meaningful services,
Linda says, all three statutory grounds for terminating her parental rights are unsupported.
Linda acknowledges that she did not raise her ADA argument before this appeal
but argues that it falls within the third exception to the contemporaneous-objection
requirement set forth in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) and Baker v.
Arkansas Department of Human Services, 2011 Ark. App. 400. The exception she presses in
this appeal, the third Wicks exception, deals with a court’s duty to intervene, even without
an objection, to correct a serious error. The serious error that Linda identifies is that
10
Cite as 2014 Ark. App. 142neither DHS nor the court provided her with reasonable accommodations under the
ADA. Linda cites Baker as authority that supports an application of the Wicks exception in
this case. But this court, in Pratt v. Arkansas Dep’t of Human Servs., 2012 Ark. App. 399,
at 13, 413 S.W.3d 261, 263 has already distinguished Baker: “the Wicks discussion in
Baker arose from an earlier no-merit setting and stands only for the proposition that it may
not be frivolous to argue that the Wicks exception to the contemporaneous-objection rule
might apply in a termination case where an issue was not preserved.” Our supreme court
has never applied a Wicks exception in a DHS termination case when the parents are
represented by counsel.
A Wicks exception will not apply absent a flagrant error so egregious that the circuit
court should have acted on its own initiative. Pratt, supra. To qualify for ADA
accommodations in a DHS case, a parent must demonstrate that she has a mental
impairment that substantially limits one or more of her major life activities. Sowell v. Ark.
Dep’t of Human Servs., 96 Ark. App. 325, 329, 241 S.W.3d 767, 770 (2006); 42 U.S.C. §
12102(2) (2012). Linda requested some special services for adult-care living arrangements,
but her request was not formally made until closing arguments at the close of the
termination hearing—and at no point did either of her attorneys raise the ADA
accommodations argument. Moreover, the circuit court did not ignore Linda’s mental
deficiencies. The court specifically acknowledged them in its adjudication order. The
court further acknowledged issues with Linda’s mental status by appointing her an
attorney ad litem to represent her in addition to her appointed counsel. The circuit court
11
Cite as 2014 Ark. App. 142did not act in a manner that flagrantly prejudiced Linda so as to justify us applying the
third Wicks exception. See Pratt, supra.Regarding inadequacy of the services DHS provided, Linda points us to her
objection at the April permanency-planning hearing that DHS could not provide proof of
a counseling referral. She also states that DHS “did virtually nothing to assist” her and
that she should have received services from programs specifically geared toward individuals
with mental disabilities. Linda did not object, during the termination hearing, to any
DHS services-related issue. So any issue is waived. Gilmore v. Arkansas Dep’t of Human
Servs., 2010 Ark. App. 614, 379 S.W.3d 501. And because Linda has not appealed the
court’s permanency-planning order, any objection she made about the counseling referral
in April is not preserved. Velazquez v. Ark. Dep’t of Human Servs., 2011 Ark. App. 168.
To the extent that Linda argues that DHS did not prove the first termination
ground because it did not provide her with meaningful access to reunification services
under Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(b), we affirm the termination on a
different ground because proof of only one statutory ground is sufficient to terminate
parental rights. Dawson v. Ark. Dep’t of Human Servs., 2011 Ark. App. 106, 391 S.W.3d
352. The statutory ground that we affirm is the “other factors” ground:
[O]ther factors or issues arose subsequent to the filing of the original
petition for dependency-neglect that demonstrate that return of the juvenile
to the custody of the parent is contrary to the juvenile's health, safety, or
welfare and that, despite the offer of appropriate family services, the parent
has manifested the incapacity or indifference to remedy the subsequent issues
or factors or rehabilitate the parent’s circumstances that prevent return of the
juvenile to the custody of the parent.
Ark. Code Ann. § 9–27–341(b)(3)(B)(vii)(a) (Repl. 2008).
12
Cite as 2014 Ark. App. 142We affirm the court’s termination of Linda’s parental rights under section 9-27-
341(b)(3)(B)(vii)(a). The court found that after DHS had taken custody of D.V., Linda
intentionally dismissed the order of protection, “lied to the court,” moved in with
Richard, and refused to leave even though the risk of harm was great. Linda was in an
abusive, harmful relationship that she refused to leave even at the cost of not having her
child returned to her. She acknowledged as much to the circuit court. She said, “I
wouldn’t ask Richard to leave.” Therapist Vicki Lawrence told Linda that the first step to
regaining custody of D.V. would be to “leave the abusive relationship” and provided her
housing and adult-care options. Linda nevertheless told the court that she saw no reason
to leave Richard. We affirm the court’s decision to terminate Linda’s parental rights on
the statutory “other grounds” provision given this record.
In a footnote in her brief, Linda states that she does not challenge the court’s best
interest finding on adoptability but “denies that D.V. would have been subject to potential
harm if returned to her care after the offer of meaningful services.” No authority for this
undeveloped proposition is provided, so we do not address it. See Flanagan v. State, 368
Ark. 143, 243 S.W.3d 866 (2006). The court’s finding that a termination of Linda’s
parental rights was in D.V.’s best interest is therefore affirmed.
B. Richard Weathers’s Argument
Richard argues that DHS did not prove that he failed to comply with the case plan
and that DHS did not prove the statutory grounds needed to terminate his rights. He
does not challenge the court’s conclusion that a termination was in D.V.’s best interest.
13
Cite as 2014 Ark. App. 142A court may terminate a parent’s rights even if the parent has complied with the
case plan because parental rights will not be enforced to the detriment of a child’s health
and well-being. Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, 344 S.W.3d
670. The critical question is whether a parent’s completion of the case plan has achieved
the goal of making the parent capable of caring for the child. Tucker v. Ark. Dep’t of
Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. As we said earlier, DHS must prove by
clear and convincing evidence at least one statutory ground in order to terminate
Richard’s parental rights. Ark. Code Ann. § 9-27-341(b)(3)(B). It did so.
We affirm the court’s termination of Richard’s parental rights based on the court’s
finding of aggravated circumstances. In our juvenile code, “aggravated circumstances”
means that “a child has been abandoned, chronically abused, subjected to extreme or
repeated cruelty, or sexually abused, or a determination has been made by a judge that
there is little likelihood that services to the family will result in successful reunification[.]”
Ark. Code Ann. § 9-27-303(6) (Repl. 2009); Ark. Code Ann. § 9-27-
341(b)(3)(B)(ix)(a)(3)(A)–(B)(i) (Repl. 2009). Here, the circuit court focused on the last
facet of aggravated circumstances; it concluded that there was little likelihood that the
services to the family would result in successful reunification. Because a termination of
parental rights is an extreme remedy and in derogation of the natural rights of the parents,
there must be more than a mere prediction or expectation by the circuit court that
reunification services will fail. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247,
254, 240 S.W.3d 626, 630–31 (2006).
14
Cite as 2014 Ark. App. 142We hold that there was clear and convincing evidence that reunification services
were unlikely to succeed. Richard never fully complied with the case plan because he
refused to participate meaningfully in counseling and prevented Linda from receiving
counseling. The court found that Richard had an unrealistic view of his own past and
future capabilities, did not understand the significance of his violent tendencies, and
refused to acknowledge that he had abused Linda. Richard’s therapist concluded that any
attempt to counsel Richard was “not successful.” Dr. Deyoub did not recommend any
services for Richard and opined that Richard should have no contact with D.V. The
results of Richard’s psychological evaluation, his therapist’s testimony, and even his own
testimony support the court’s finding that further services would not likely help Richard
and that a termination was necessary to protect D.V.
The court also found that D.V. was likely to be adopted and that D.V. would be in
danger if placed with Richard. Richard does not challenge these findings, and we affirm
the court’s finding that terminating Richard’s parental rights was in D.V.’s best interest.
IV. Conclusion
The circuit court’s decision to terminate Linda Vondran’s and Richard Weathers’s
parental rights as to D.V. is affirmed.
Affirmed.
WOOD and WHITEAKER, JJ., agree.
Huffman Butler, PLLC, by: Brian A. Butler; and Didi Harrison Sallings, Arkansas
Public Defender Commission, for appellants.
Tabitha Baertels McNulty, DHS Office of Policy; and Chrestman Group, PLLC, by:
Keith Chrestman, for appellees.
15