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**Collier v. DHS, 2022 Ark. App. 100, March 2, 2022
from the Arkansas Court of Appeals
Link to the opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520965/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
**Britt v. DHS, 2022 Ark. App. 95, Feb. 23, 2022
In the Arkansas Court of Appeals'
Link to the opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520955/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
Core v. DHS, 2022 Ark. App. 79, Feb. 16, 2022
**from the Arkansas Court of Appeals
Link to the opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520929/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
Dreher v DHS, 2022 Ark. App. 64, Feb. 9, 2022
**from the Arkansas Court of Appeals
Link to the opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520905/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
**Henry v. DHS, 2022 Ark. App. 63, Feb. 9, 2022
from the Arkansas Court of Appeals
Link to the opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520904/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
**Cullum v. DHS, 2022 Ark. App 62, Feb. 9, 2022
from the Arkansas Court of Appeals
Link to the opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520903/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
**Gascot v. DHS, 2022 Ark. App. 57, Feb. 9, 2022
from the Arkansas Court of Appeals
Link to opinion: https://opinions.arcourts.gov/ark/courtofappeals/en/item/520899/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
**Yancey v. DHS, 2022 Ark. App. 35, January 26, 2022
from the Arkansas Court of Appeals
Link to opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520021/index.do
This podcast is produced by
Casey D. Copeland, Ark. Bar #2005022
PO Box 270, Prairie Grove, AR 72753
caseydcopeland@gmail.com
Music: "In the Forest" by Lesfm on Pixaby.com**
**Cullum v. DHS, 2022 Ark. App. 43, January 26, 2022
from the Arkansas Court of Appeals
Link to Opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520020/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753
caseydcopeland@gmail.com
Music: "In the Forest" from Pixaby.com**
**Garner v. DHS, 2022 Ark. App. 33, January 26, 2022
from the Arkansas Court of Appeals.
Link to opinion:
https://opinions.arcourts.gov/ark/courtofappeals/en/item/520019/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753
caseydcopeland@gmail.com
Music: "In the Forest" from Pixaby.com**
**Folsom v. DHS, 2022 Ark. App. 29, January 26, 2022
The Arkansas Court of Appeals
Link to the opinion: https://opinions.arcourts.gov/ark/courtofappeals/en/item/520015/index.do
Podcast produced with BuzzSprout.com by
Casey D. Copeland, PO Bos 270, Prairie Grove, AR 72753
caseydcopeland@gmail.com
Music: "In the Forest" from Pixaby.com**
Jones v. DHS, 2022 Ark. App. 28, January 19, 2022
The Arkansas Court of Appeals
Link to Opinion: https://opinions.arcourts.gov/ark/courtofappeals/en/item/519654/index.do
This podcast is produced by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com
Music: "In the Forest" from Pixaby.com
**Defell v. DHS, 2022 Ark. App. 27, January 19, 2022
Arkansas Court of Appeals
Link to Opinion: https://opinions.arcourts.gov/ark/courtofappeals/en/item/519653/index.do
This podcast is created by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com.
Music: "In the Forest" from Pixabay.com**
**Cox v. DHS, 2022 Ark. App. 26, January 19, 2022
Arkansas Court of Appeals
Link to opinion: https://opinions.arcourts.gov/ark/courtofappeals/en/item/519652/index.do
This podcast is created by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com.
Music: "In the Forest" from Pixabay.comv**
**Walker and Sanders v. DHS, 2022 Ark. App. 21
January 19, 2022, from the Arkansas Court of Appeals
Link to Case: https://opinions.arcourts.gov/ark/courtofappeals/en/item/519647/index.do
This podcast is created by Casey D. Copeland, PO Box 270, Prairie Grove, AR 72753; caseydcopeland@gmail.com.
Music: "In the Forest" from Pixabay.com**
There were no new dependency-neglect cases from the Arkansas Supreme Court or the Arkansas Court of Appeals for the week of December 15-16, 2021.
Happy Holidays and Happy New Year!
~ Casey
Christopher Scott v. DHS, 2021 Ark. App. 494, Dec. 8, 2021
Arkansas Court of Appeals
https://opinions.arcourts.gov/ark/courtofappeals/en/item/517298/index.do
Tonya York v. DHS, 2021 Ark. App. 490
December 8, 2021 | Appeal from PPH, Dismissed
https://opinions.arcourts.gov/ark/courtofappeals/en/item/517294/index.do
If you like the Arkansas DN Case Review podcast, and you need to stay up on the latest domestic relations and probate cases, check out the Arkansas DR&PR Case Review podcast too! (Link below)
https://podcasts.apple.com/us/podcast/arkansas-dr-pr-case-reviews/id1598802525?itsct=podcast_box_link&itscg=30200&ls=1
Bethany Williams v. DHS, 2021 Ark. App. 488
December 8, 2021 | Termination, Affirmed
https://opinions.arcourts.gov/ark/courtofappeals/en/item/517292/index.do
Samantha Cummings v. DHS, 2021 Ark. App. 466, Nov. 17, 2021
Termination, Affirmed
PRIMARY ISSUE(S): LESS RESTRICTIVE ALTERNATIVE
The child was removed in October 2019 due to the mother’s drug use, and was adjudicated dependent-neglected in November based on inadequate supervision. Concurrent goals of reunification and guardianship or adoption with a relative were established at adjudication. The mother did not attend the first review, and the trial court found that she was not in compliance with the case plan or court orders. The same findings were made by an agreed order in April 2020, and the court found that the mother’s whereabouts were unknown at that time. The mother attended a review hearing in June 2020, and the trial court found that she was in compliance at that time, and that she was “slowly benefitting from her engagement in the services towards the goals of the case plan.” The goal of the case remained the same.
A permanency-planning hearing was in August 2020, at which the trial court found that the mother had not complied with the case plan since finishing inpatient rehabilitation. DHS filed a termination petition in October, and the mother was found out of compliance during a review hearing in November. The termination hearing was continued from January 2021, so DHS could look in to subsidized guardianship due to adoption being ruled out as inappropriate for the child. The termination hearing was in March 2021, and the trial court granted the petition on the “failure to remedy” and “subsequent factors” grounds. The mother then appealed.
The mother did not challenge grounds for termination on appeal. Instead, she argued that termination was not in the child’s best interest because there was a less restrictive alternative in the form of permanent custody or guardianship, and that she did not pose a risk of harm to the child.
The child was in the care of paternal grandparents, and that termination did not support the policy of strengthening and preserving families. The COA, however, noted that the mother did not cite an authority with similar facts that supported her arguments, and that “here, as in Phillips, [the child] was living with grandparents in a foster-care placement and thus had not achieved permanency.”
The mother’s argument that termination would sever her obligation to provide support and ability to visit the child was also dismissed by the COA, who stated that she had not provided any support, was unable to maintain employment, and had only taken advantage of twenty-five of sixty-seven visitation opportunities.
With regard to the mother’s argument that she did not pose a risk of harm to the child, the COA pointed out that she had refused to submit to drug tests, could not maintain housing or employment, failed to stay in contact with DHS, and was inconsistent in her visitation. As the court often states, “the court may consider past behavior as a predictor of future behavior.” Phillips, 2012 Ark. App. 565.
DHS v. Arabia Jackson, 2021 Ark. App. 464, Nov. 17, 2021
Adjudication, Reversed and Remanded
PRIMARY ISSUE(S): EVIDENCE
A hotline report was made on February 24, 2021, which alleged that the mother had tested positive for methamphetamine and amphetamines at the time of the birth of her twins. Three older siblings were in DHS custody at the time. The twins were taken into DHS custody on March 2nd, and an ex parte order was entered on the 4th. The trial court found probable cause on April 13th, based on the mother’s positive drug tests at the time of the twins’ birth, and noting that the twins were still in the hospital, on oxygen, and going through withdrawals.
The adjudication hearing was held on May 11, 2021, and only the DHS investigator testified. The twins’ birth records were also admitted into evidence. Those records included statements from the social worker and doctor regarding the mother’s drug use and positive drug test. The records also included the twins’ umbilical-cord drug test, which was positive for amphetamines.
The trial court denied and dismissed the DN petition because the records included the acronyms “MOB” and “UDS”. The trial court stated in part “I don’t know who MOB is and even UDS. I would have to assume that is a urine drug screen, as there’s no urine drug screen actually– mother actually in this packet to know that that’s what they’re referring to, to tie that together.” The trial court also stated concerns with the DHS worker’s inability to use the CHRIS system to look up past services to the family.
The COA started by stating that the purpose of the adjudication hearing is to determine if the allegations in the DN petition are substantiated by proof, and that the burden of proof is on the petitioner to show by a preponderance of the evidence. Hall, 2021 Ark. App. 108. The court also referenced the definition of neglect, which includes causing a child to be born with drugs in their system. Ark. Code Ann. § 9-27-303(37)(B)(i), and (37)(B)(ii)-(iv). The COA also noted that, even though the term “parental unfitness” is not defined in the code, “appellate courts have repeatedly held that parental drug use is sufficient evidence of parental unfitness.” Garner, 2020 Ark. App. 328.
Based on the evidence presented to the trial court, the COA found that “it is patently obvious by context that ‘SW’ refers to ‘social worker,’ ‘MOB’ refers to ‘mother of babies,’ i.e., [the mother], and that ‘UDS’ is a ‘urine drug screen.” The court went on to say that “the trial court erred in requiring DHS to explain commonly used acronyms in the medical records and further erred by requiring proof of [the mother’s] actual positive drug screen be introduced. Neither the trial court nor this court is required to set aside common sense in assessing the evidence, and the medical records conclusively demonstrated that [the mother’s] bodily fluids tested positive for methamphetamine contemporaneous with the birth of the twins.”
In a foot note, the COA also stated that “the trial court’s ‘concerns’ about the caseworker’s unfamiliarity with the CHRIS system constitute no grounds to deny the dependency-neglect petition.”
Aslakson v. DHS, 2021 Ark. App. 460, Nov. 17, 2021
Termination, Affirmed
PRIMARY ISSUE(S): ICWA & LESS RESTRICTIVE ALTERNATIVE
The three children were removed from the mother in July 2019 when the mother was arrested by her parole officer for possession of drugs, which were left within reach of the children. Mother tested positive for a number of substances at the time of her arrest. The children were adjudicated dependent-neglected on the basis of parental unfitness due to their drug use. The case goal was set as reunification, and both parents were given supervised visitation. The parents were not in compliance with the case plan at the first review, and that the ICWA applied to the case. The permanency-planning hearing was held in June 2020, at which the trial court found that the parents had not complied with the case plan and court orders, and changed the goal to adoption. DHS was directed to contact the Suquamish Tribe of Washington regarding their desire to intervene or not. DHS was also ordered to complete a home study on the paternal grandmother, who was later ruled out as a possible placement. The termination petition was filed in August 2020, in which DHS alleged six grounds for termination. After the termination hearing, the trial court granted the petition on all six grounds, as well as finding that termination was in the best interest of the children. Both parents appealed.
The COA began by noting that the ICWA increased the evidentiary standard to beyond a reasonable doubt, by adding the requirement that the petitioner prove that active efforts were made to prevent the breakup of the Indian family; and by requiring the testimony of a qualified expert witness. However, despite the increased standards and requirements, the appellate court still review terminations under the de-novo-and-clearly-erroneous analysis that apply to all such appeals. Holmes, 2016 Ark. App. 495.
Neither parent challenged either grounds for termination, adoptability, or potential harm, which meant that they waived those arguments on appeal. Benedict, 96 Ark. App. 395. Instead, the parents argued that termination was not in the children’s best interest because there was a less restrictive alternative, specifically the father’s sister, who was awaiting the completion of the ICPC process at the time of termination. The COA noted that this paternal aunt had “surfaced” more than sixteen months after the children were removed, was twenty-eight years old, had four children of her own, had not been able to communicate with her husband about her interest in the children, and had not seen the children in three years.
The COA also noted that the qualified expert testified that it was the opinion of the Tribe that the parents were not capable of providing a safe, stable, and suitable home for the children, and therefore, did not have a basis for opposing the termination. She also testified that the Tribe did not have a placement for the children, either with a foster home or relatives, but that the Tribe did support pursuing placement with the paternal aunt. However, the court also pointed out that the ICPC process had not been completed, and that there was no guarantee that the aunt would be approved. In short, the aunt was not a viable permanent or stable option at the time of termination. Phillips, 2019 Ark. App. 383.
The mother also argued that DHS did not provide statutory visitation and other necessary services, and violated her Due Process rights by ignoring her while she was in jail, but the COA held that these arguments were not preserved because she did not raise them below.
Larissa Hickmann v. DHS, 2021 Ark. App. 457, Nov. 17, 2021
Termination, Affirmed
PRIMARY ISSUE(S): LESS RESTRICTIVE ALTERNATIVE
The two children, who were three and five years old respectively, were removed in November 2019 due to concerns with drug abuse, environmental neglect, and inadequate supervision. They were then adjudicated dependent-neglected, and the case goal was set as reunification. The children were placed with their maternal grandmother. The mother had “done zero” by the first review hearing, and the children remained with their grandmother. The trial court changed the goal to adoption at the permanency-planning hearing, and DHS filed a termination petition a month or so later. The termination petition alleged the grounds of “failure to remedy”, “subsequent factors”, and “aggravated circumstances”. The trial court granted the termination petition on the “failure to remedy” ground, and found that termination was in the children’s best interest.
On appeal, the mother only challenged the trial court’s best interest finding, and specifically only arguing against the potential harm aspect of that finding.
The COA begins by noting that “a potential-harm analysis must be conducted in broad terms, with the circuit court considering the harm to the children’s health and safety that might occur from continued contact with the parent”, and that “there is no requirement to find actual harm would result or to identify the potential harm.” Barnes, 2017 Ark. App. 525. They also noted that “in determining potential harm, the circuit court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent’s care and custody.” Scott, 2018 Ark. App. 347.
The mother’s argument on appeal was that because there was a less restrictive alternative such as permanent custody or guardianship with the maternal grandmother, termination was not in the children’s best interest. She cited a number of cases in support of her argument (listed below), each of which the COA found to be factually distinguishable. In short, the children were not in the custody of another parent, the mother had not made much progress on her case plan, and DHS, not the maternal grandmother, had custody of the children at the time of termination. The COA stated “because the children were not in the custody of a relative at the time of termination, and the circuit court found termination to be in the children’s best interest, the exception [under the permanency-planning statute] does not apply.” Robinson, 2017 Ark. App. 251; Dye, 2020 Ark. App. 10; and Phillips, 2019 Ark. App. 383.
The mother also argued that the children’s bond with her should prevent termination, but the COA noted that “termination of parental rights will not be reversed on the basis of a parent’s bond with the child.” Holdcraft, 2019 Ark. App. 151.
The mother’s cases were: Lively, 2015 Ark. App. 131; Rhine, 101 Ark. App. 370; and Ivers, 98 Ark. App. 57 (2007).
Rocha v. DHS, 2021 Ark. App. 454, Nov. 17, 2021
Termination, Affirmed
The children were removed due to neglect and parental unfitness, stemming from substance abuse and domestic abuse in the home. The were adjudicated dependent neglected on those basis, as well as environmental neglect. The goal of the was set as “permanent guardianship/permanent custodial placement/adoption”. The children were not placed together at the time of the first review, the parents had minimally complied with the case plan, but had “not demonstrated progress toward the goal of the case plan.” The goal remained the same after the second review hearing, and the trial court found that issues of domestic violence continued between the parents. By the permanency-planning hearing, the mother had acquired new criminal charges, and the father was incarcerated. The goal was changed to adoption, and, after four continuances over six months, the termination hearing was held on March 31, 2021. The maternal grandfather filed a motion to intervene on April 9, 2021, and the trial court denied that motion and entered the termination order on April 20, 2021.
The COA reviews termination cases de novo, and an order terminating parental rights has to be based on a finding by clear and convincing evidence that one of the grounds pled in the termination petition is satisfied and that the termination is in the child’s best interest. 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, and on appeal the COA asks whether the trial court’s finding is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, an appellate court is left with a definite and firm conviction that a mistake was made. Brown, 2015 Ark. App. 725.
On appeal, the mother argued that the trial court’s adoptability finding was not based on sufficient evidence because throughout the case DHS was never able to find a placement for the children together, and the adoption specialist was only able to find five potential adoptive families for the sibling group. She also argued that the continued separation of the siblings would be harmful to them, and that they could be spared that harm by either giving her more time or considering the maternal grandfather for placement. The COA disagreed, and held that the adoption specialist’s testimony and the potential harm from the mother’s lack of compliance with the case plan, both supported the trial court’s best interest determination. The COA stated that “partial compliance with a case plan does not justify reversal if the parent continued to make decisions adverse to the child, such as abusing illegal drugs and testing positive for drug use.” Hollinger, 2017 Ark. App. 458. It was also noted that placement with the maternal grandfather was improper because the mother was also living with him.
The father’s appellate attorney filed a no-merit brief, which the COA granted. The only issues addressed were the trial court’s denial of his motion for directed verdict and his request for a final visit. The father’s argument for directed verdict was that DHS had not contacted him while he was in jail, but the COA held that since he did not challenge the reasonable effort findings prior to termination, his motion and appeal were not meritorious. With regard to the denial of his request for a final visit, the COA simple stated that the request was “not germaine to whether the circuit court erred in terminating [the father’s] parental rights.”
The COA also held that there was sufficient evidence to support the “little likelihood” finding against the father.
Elizabeth Darnell (Garner) v. DHS, 2021 Ark. App. 451, Nov. 17, 2021
Termination, Affirmed
PRIMARY ISSUE(S): POTENTIAL HARM
The child in question here was born positive for drugs, but was discharged and left the hospital with the mother. It took DHS a couple of months to find mother and child, due in part to the mother’s surname changing from “Darnell” to “Garner”. Two of the mother’s other children were in the custody of the maternal grandparents, and another child was in foster-care. When located, the mother told DHS that the child was also with her parents, but they refused access to the child. DHS filed a petition for removal, and the trial court entered an ex parte order. The grandparents then sought temporary guardianship, and the child was placed with them. The child was adjudicated dependent-neglected on the basis of parental unfitness and neglect. Reunification was set as the goal.
The mother had made some progress on the case plan by the first review, but had not completed drug treatment, and the trial court ordered her drug screens to be observed henceforth. The trial court found that she had not complied with the case plan and court orders at the permanency planning hearing. The mother had not completed drug treatment, had not visited regularly, and refused DHS access to her home.
DHS filed a termination petition alleging five grounds, including a prior involuntary termination, to which the mother stipulated, and which was the sole ground for the trial court’s termination of her parental rights. The mother then appealed, challenging the trial court’s potential harm finding, relying on Conn, 79 Ark. App. 195 for the proposition that a potential harm finding cannot be solely based on a prior termination.
The COA began by noting that the trial court’s potential harm finding was based on the prior termination, the mother’s failure to visit the child for many months, and that the mother continued to use drugs. The court also noted the exhibits, which were admitted without objection, illustrated the mother’s history of unresolved drug abuse, which led to the removal of the child.
The mother’s second argument was that the trial court did not properly consider placement with maternal grandparents who had a pending guardianship petition. Here, the court found that the argument was not preserved for appeal because it was not argued to the trial court. The court specifically stated “the permanency-planning order, in which the circuit court changed the goal of the case from reunification to termination, does not indicate that the relative-placement argument was raised at the permanency-planning hearing. Likewise, the transcript of the termination hearing does not reflect that any argument regarding relative placement was presented at that time, and the termination order is silent as to relative placement as a less restrictive option; thus the matter is not preserved for appeal.” The primary case on this point was Cole, 2020 Ark. App. 481.
Heather Jones v. DHS, 2021 Ark. App. 446, Nov. 17, 2021
Termination, Affirmed
PRIMARY ISSUE(S): ADOPTABILITY
The two children were removed in March 2020 after they had been left with relatives who could not care for them. DHS then learned that the mother, the Appellant here, had been convicted of second-degree murder in Oklahoma for the death of her one-year-old, who had been killed during a robbery ten years earlier. The children were adjudicated dependent-neglected based on the mother’s drug use in June 2020. The first review hearing was held in September, and the trial court found that the mother had not visited regularly, continued to use meth, and had been arrested recently. A second review hearing was held in January 2021, where the trial court changed the goal to adoption/termination due to the mother’s incarceration and failure to comply with the court’s orders. The Department filed a termination petition in February 2021, and the hearing was held the following month.
A therapist testified that one of the children had been diagnosed with “autism with comorbid attention-deficit and adjustment disorders”, and that the other child had been diagnosed with “attachment disorder and a little bit of inattentiveness in an ADHD format.” The therapist recommended that the children “move on into an adoption program and have a chance at really forming some bonds”. Regarding the child with autism, the therapist stated “it’s not that he’s not adoptable, but it’s going to take a very, very, very special and caring person to commit to the work it’s going to take with that kid.” (The COA included a portion of the therapist’s testimony within the opinion.)
A DHS worker testified that the children were placed together, and that their placement was aware of their special needs.
The mother was incarcerated at the time of the termination hearing; serving a two-year sentence. She did not have employment. She did not complete parenting classes, a drug-and-alcohol assessment, or drug treatment. And she had attended only 19 of 48 visits with the children.
The trial court granted termination, stating from the bench that “any diagnosis testified to today is not a bar to adoption.” The termination order repeated that statement, and found that the children would face potential harm if placed with the mother because of her incarceration.
The mother challenged the adoptability finding on appeal, specifically noting that the caseworker had not mentioned it during her testimony. The COA, however, found that, because adoptability is not an essential element of proof (McDaniel, 2013 Ark. App. 263), and that identifying potential adoptive parents is not required (Baker, 2020 Ark. App. 507), the law only requires the trial court to “consider the likelihood” of adoption. (Sharks, 2016 Ark. App. 435). The COA simply stated “that was done to the law’s satisfaction in this case.”
Shawna Jennings v. DHS, 2021 Ark. App. 429, Nov. 3, 2021
Termination, Affirmed
PRIMARY ISSUE(S): SUBSEQUENT FACTORS & RISK OF HARM
The Department placed a hold on the child due to there being no lawful caregiver after the mother was arrested for possession of a controlled substance and endangering the welfare of a minor. Two other older children were then added to the DN petition, but were placed in the custody of their father. All three children were then found to be dependent-neglected based on the mother’s neglect and parental unfitness, and the case goal was established as reunification, as well as adoption or guardianship as concurrent goals. The first child remained in DHS custody, while the older two remained with their father. In the Adjudication Order, the trial court noted a history with the family dating back to 2007, and listed a number of services that had been offered over the years.
The trial court found that the mother had not been stable or sober by the time of the first review. The two older children were placed in their father’s permanent custody at the permanency planning hearing, and the goal for the youngest was changed to termination/adoption. The trial court noted a number of specific services that the mother had not engaged or completed, including consistent visits, drug screens, and staying in contact with DHS. The trial court also noted that the mother had not maintained stability or sobriety, and that she had not shown an ability to protect the children from harm.
DHS then filed a termination petition regarding the youngest child, alleging “failure to remedy”, “aggravated circumstances”, and “subsequent factors”. The trial court granted the petition based on all three grounds, and found that termination was in the child’s best interest. The trial court specifically noted that the mother had recently begun services through drug court, but that she had been offered the same types of services earlier in this case, yet waited “until her freedom was at stake before even attempting to address her substance abuse issues.” The mother appealed, challenging both the grounds and best interest findings.
The COA focused on the “subsequent factors”, which included the mothers “failure to demonstrate sobriety, instability in housing and employment, multiple arrests, and the fact that [the mother] is currently on probation and parole.” The court disagreed with the mother’s arguments that the evidence did not support this ground by noting her continued drug use, the fact that she had been ordered to comply with the case plan and court orders, maintain stable housing and employment, resolve all criminal charges, and demonstrate the ability to protect [the child”. Yet, as the court stated, the mother “continued to exercise poor judgment...[and] admitted she used drugs eight months into the case, was arrested twice and incurred additional criminal charges.” The COA then reminded “that a parent’s lack of compliance with the case plan and court orders, including testing positive for drugs, supports termination of parental rights under the ‘subsequent factors’ ground.” Redden, 2019 Ark. App. 539.
As for the risk of harm issue, the COA stated that they “have consistently held that eleventh-hour compliance does not have to be credited by the circuit court and does not outweigh prior noncompliance.” Miller, 2021 Ark. App. 280. Thus the efforts by the mother in the weeks prior to the hearing were not enough to prevent the termination of her parental rights. The court further stated that potential harm analysis is meant to evaluate the risk of returning a child to the parent, not the risk to the child of remaining in care. Belt, 2020 Ark. App. 315.
Sara Carr and Benjamin Noble v. DHS, 2021 Ark. App. 476
December 1, 2021 | Termination, Affirmed
ON APPEAL: Grounds for Termination
DHS opened a protective services case in April 2018, and then removed the child and filed its DN petition in July, alleging abandonment, abuse, neglect, sexual abuse, sexual exploitation, and parental unfitness. The trial court held the adjudication hearing in September, and found that the child was dependent-neglected on the basis of parental unfitness. Reunification was set as the case goal, and the parents were ordered to engage in services.
The case was reviewed in February 2019, and the trial court found the parents had completed some, but not all services. The goal remained reunification, and the child remained in the custody of DHS. The first permanency-planning hearing was held in July 2019. The trial court found that the parents had partially complied with the case plan, maintained the goal of reunification, and left the child in DHS’s custody. The parents were found to be in compliance with the case plan in review orders from November 2019, January 2020, and March 2020. The trial court had also approved a visitation plan that would transition to a trial home placement. The second permanency-planning hearing was held in July 2020, where the trial court approved a trial home placement, found the parents to be in compliance with the case plan, and kept the goal of the case as reunification. A review order from September 2020, however, limited the parents to four hours of supervised visits per week. The visitations were then temporarily suspended in early November 2020, and the case goal was changed to adoption in December. At issue was the parents’ housekeeping, transportation, and poor engagement with IFS.
DHS filed a termination petition in January 2021, alleging the “subsequent factors” and “aggravated-circumstances” grounds, and that termination was in the best interest of the child. The hearing was held in March 2021, and the trial court granted as to both grounds. (The COA discusses the testimony at some length in its opinion, and it is worth a read through.)
On appeal, the parents argue that the trial court erred in granting termination on the grounds alleged. The COA began by noting that the child was just over three years old, and had been out of the parents’ care for thirty-one months. During that time, the parents had been offered numerous services, including intensive parenting therapy. However, despite the services offered, the COA stated “the evidence is extensive that [the parents] have shown no progress.” The court also noted that the testimony was that the child “did not look to his parents for safety and security and that his interactions with, and attachment to, his parents were worse at the end of the trial home placement.” Also that “after the trial home placement, the child struggled with behavioral and sleep issues”, and that he “was doing well before the trial home placement, but after the trial home placement, he was a different, sad, angry, frustrated, clingy, and aggressive boy.”
The COA summed the case up by stating, “while [the parents] completed the services provided to them during this nearly three-year-long case, there is significant evidence that either they did not learn the skills necessary to safely care for [the child] or they believe they do not need help parenting [the child].” Thus, there was little likelihood that further services to the family would result in a successful reunification.
The COA also noted that the parents’ arguments amounted to a request to reweigh the evidence, which they do not do. Blasingame, 2018 Ark. App. 71.
https://opinions.arcourts.gov/ark/courtofappeals/en/item/515367/index.do
This case involved four children who were brought into care in December 2017 when their youngest sibling died from physical abuse and neglect. They were adjudication dependent-neglected in February 2018 on the basis of parental unfitness, inadequate supervision, and substance abuse. Two review hearings and two permanency planning hearings were held before DHS filed its termination petition in February 2020. In that interim, the mother had been charged with and pled guilty to second-degree murder and endangering the welfare of a minor. She was sentenced to 120 months imprisonment and 240 months suspended for the second-degree murder charge, and 72 months imprisonment for the endangering charge. Her sentences were to run consecutively, for a total of 36 years.
The termination hearing was held in November and December of 2020, and the order was entered in March 2021 finding that multiple grounds supported termination, as well as that termination was in the best interests of the children. The trial court specifically noted that “regardless of adoptability, it is in the best interest of the children” to terminate the mother’s rights. The mother challenged only the best interest finding on appeal; specifically that the evidence of adoptability was not sufficient.
The COA began its analysis by reminding us that “adoptability is not an essential element in a termination case; rather it is merely a factor that must be considered by the circuit court in determining the best interest of the child.” Tucker, 2011 Ark. App. 430 & Ark. Code Ann. § 9-27-341(b)(3). Also that “there is no requirement that an adoption specialist testify at the termination hearing or that the process of permanent placement be completed at the time of the termination hearing.” Fortenberry, 2009 Ark. App. 352. And that “there is no requirement to prove this factor by clear and convincing evidence or to identify an exact family that, upon termination, would be willing to adopt the child.” Reed, 2012 Ark. App. 369.
The COA went on to state that “the Juvenile Code does not require ‘magic words’ or a ‘specific quantum’ of evidence to support a circuit court’s finding regarding adoptability.” Sharks, 2016 Ark. App. 435. And that “it merely requires that if an adoptability finding is made, then evidence must exist to support it.” Haynes, 2010 Ark. App. 28. Also, “evidence that adoptive parents have been found is not required,...and neither is evidence that proves the child will be adopted.” McFarland, 91 Ark. App. 323, and Renfro, 2011 Ark. App. 419. Finally, the COA noted that “the Juvenile Code does not require certainty, let alone a ‘guarantee,’ that siblings be adopted as a group.” Corley, 2018 Ark. App. 397.
Here, the caseworker testified that the children were adoptable, although the oldest had issues that would likely delay her adoption longer than her siblings. This was enough. “While keeping siblings together is a commendable goal and an important consideration, it is but one factor that must be considered when determining the best interest of the child.” Couch, 38 Ark. App. 165.
The COA also noted the mother’s conviction for murder, and that the trial court found that termination was in the children’s best interests regardless of their adoptability.