Samuels v. Arkansas Department of Human Services

2014 Ark. App. 527

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-471

Opinion Delivered: October 1, 2014

JAMAR SAMUELS APPEAL FROM THE UNION COUNTY
APPELLANT CIRCUIT COURT
[JV-2011-188]
V.
HONORABLE EDWIN KEATON,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES and MINOR
CHILD
APPELLEES AFFIRMED

RHONDA K. WOOD, Judge

Jamar Samuels appeals the termination of his parental rights to A.S., his five-year-

old daughter. He challenges the court’s best-interest finding, the court’s findings of the

statutory grounds for termination, the lack of accommodations pursuant to the Americans

with Disabilities Act (ADA), and his counsel’s ineffectiveness. We find no error and

affirm.

I. Facts and Procedural History

In 2011, DHS removed A.S. from the custody of her mother following the death

of her sibling. The court adjudicated her dependent-neglected and ordered the goal of

permanent custody with Samuels, her father. After some time, the court placed A.S. in

Samuels’s temporary custody. Thirty-one days later, Samuels was arrested and pleaded

guilty to the third-degree domestic battery of his girlfriend; A.S. had been present during

the incident. The court removed A.S. from his custody and she remained in foster care for
2014 Ark. App. 527

another sixteen months. In August 2013, the court found that it was in A.S.’s best interest

to return her to Samuels’s custody a second time. Yet, a month later, Samuels was

arrested again, and the court returned A.S. to DHS’s custody. In January 2014, the court

terminated Samuels’s parental rights.

II. Standard of Review and Applicable Law

We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of

Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination of parental

rights must be proved by clear and convincing evidence. M.T. v. Ark. Dep’t of Human

Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). The question on appeal is whether the

circuit court’s finding that a disputed fact was proved by clear and convincing evidence is

clearly erroneous, giving due regard to the opportunity of the trial court to judge the

credibility of the witnesses. Id. A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court on the entire evidence is left with a definite

and firm conviction that a mistake has been made. Dinkins, supra.

Termination of parental rights is a two-step process that requires the circuit court

to find that the parent is unfit and that termination is in the best interest of the child.

L.W. v. Ark. Dep’t of Human Servs., 2011 Ark. App. 44, 380 S.W.3d 489. The first step

requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. §

9-27-341(b)(3)(B) (Supp. 2013). The second step requires consideration of whether the

termination of parental rights is in the juvenile’s best interest. Ark. Code Ann. § 9-27-

341(b)(3)(A).

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2014 Ark. App. 527

Whether termination is in the juvenile’s best interest includes consideration of the

following: (i) the likelihood that the juvenile will be adopted if the termination petition is

granted and (ii) the potential harm, specifically addressing the health and safety of the

child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i)–(ii). The court, however, does not have to determine that every factor

considered be established by clear and convincing evidence; instead, after considering all

of the factors, the evidence must be clear and convincing that the termination is in the

best interest of the child. L.W., supra.

III. Discussion

Here, the circuit court found two statutory grounds for termination: (1) that other

factors or issues arose subsequent to the filing of the original petition that demonstrate that

placement of the juvenile in 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, Ark. Code Ann.

§ 9-27-341(b)(3)(B)(vii)(a), and (2) that the father subjected the child to aggravated

circumstances, Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A).

Since the original filing, the court removed A.S. from Samuels’s custody on two

occasions. Both occasions were due to Samuels being arrested. The court also ordered,

after the initial filing, that Samuels regularly take his medication and attend counseling;

however, he failed to comply with both. We cannot say it was clearly erroneous for the

court to find that other factors arose after commencement of the case and that Samuels

demonstrated an incapacity and indifference to remedy these issues.

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2014 Ark. App. 527

The circuit court also found that Samuels subjected A.S. to aggravated

circumstances under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A)–(B). DHS alleged

this ground in its petition and the court found this ground was proved as a basis for

termination. Samuels contends that there was no proof presented that a court had found

aggravated circumstances; however, he failed to raise this specific argument at trial and

therefore it is not preserved on appeal. Ark. Dep’t of Human Servs. v. Jones, 97 Ark. App.

267, 248 S.W.3d 507 (2007).

Next, we hold that the circuit court did not err when it found that termination of

Samuels’s parental rights was in A.S.’s best interest. First, Samuels challenges the finding

that A.S. is adoptable. Adoptability is only one of the factors that the court considers when

making a best-interest decision. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)−(ii). The trial

court must simply consider the likelihood that a child will be adopted. Dority v. Ark. Dep’t

of Human Servs., 2011 Ark. App. 295. Here, the court noted that A.S. was “five years old

and adoptable, even with the behavior issues.” Supporting this finding was the testimony

of Marea Smith, an adoption specialist. She explained that there were 35 families within

150 miles of A.S.’s zip code that would be interested in adopting a child with

characteristics similar to those of A.S.’s. Additionally, she testified that there were other

factors that would improve the likelihood of A.S. being adopted, such as A.S. being

biracial, over the age of two, and qualified for a subsidy. Finally, there was testimony that

A.S.’s current foster family and the family who adopted her half-siblings were considering

adopting her.

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2014 Ark. App. 527

Second, Samuels challenges the court’s finding that there exists potential harm or

risk to A.S. if she were to return to his custody. The circuit court is not required to

affirmatively identify a potential harm or to find that actual harm would result if the child

were returned to the parent; rather, the potential-harm evidence must be viewed in a

forward-looking manner and considered in broad terms. Gutierrez v. Ark. Dep’t of Human

Servs., 2012 Ark. App. 575, 424 S.W.3d 329. In the course of this case, the court provided

two opportunities for Samuels to have custody of A.S. Both times it resulted in her return

to foster care. The court considered several other factors that demonstrated a risk of harm,

such as Samuels’s consistent failure to take his medication, his unstable housing, and his

missing approximately forty percent of his counseling sessions. A failure to comply with

court orders can indicate potential harm. B.H.1. v. Ark. Dep’t of Human Servs., 2012 Ark.

App. 532. All of this evidence of potential harm, combined with the evidence regarding

A.S.’s adoptability, supports the court’s ruling that termination of Samuels’s parental rights

was in A.S.’s best interest.

Last, Samuels contends in a convoluted argument that the termination of his

parental rights was in error because the court failed to make reasonable accommodations

for him under the ADA. He admits that he failed to raise this below, but contends it

qualifies as a Wicks exception to the contemporaneous-objection rule. Wicks v. State, 270

Ark. 781, 606 S.W.2d 366 (1980). Samuels acknowledges that our supreme court has

never found a Wicks exception in a termination case, but contends that we should do so

now because he had ineffective assistance of counsel. First, if he is in fact attempting to

raise an ineffective-assistance-of-counsel argument, we cannot consider it because Samuels

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2014 Ark. App. 527

failed to raise it below. We will not review an ineffective-assistance-of-counsel claim on

appeal unless it was “first raised in the trial court and the facts and circumstances

surrounding the claim were fully developed in the trial court.” Jones v. Ark. Dep’t of

Human Servs., 361 Ark. 164, 191, 205 S.W.3d 778, 794 (2005). Second, Samuels does not

provide any legal support for application of a Wicks exception, nor does he state which

Wicks exception would be applicable. As the Arkansas Supreme Court explained, we “will

not do [appellant’s] research” and “will affirm when the appellant’s argument is neither

supported by legal authority nor apparent without further research.” Hopper v. Garner, 328

Ark. 516, 524, 944 S.W.2d 540, 544 (1997).

After a review of all the points raised, we find no error by the circuit court and

affirm.

Affirmed.

GLADWIN, C.J., and BROWN, J., agree.

Shannon Holloway, for appellant.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor child.