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ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-205
Opinion Delivered SEPTEMBER 14, 2016
PATRICIA GARRETT
APPEAL FROM THE SALINE
APPELLANT COUNTY CIRCUIT COURT
V. [NO. 63JV-2014-312]
ARKANSAS DEPARTMENT OF HONORABLE GARY ARNOLD,
HUMAN SERVICES AND MINOR JUDGE
CHILD
APPELLEES AFFIRMED
DAVID M. GLOVER, Judge
By order entered April 7, 2016, our supreme court granted Patricia Garrett’s motion
for belated appeal, and this appeal from the termination of her parental rights to her
daughter, K.C. (d.o.b. 8-25-2010), followed. She challenges the sufficiency of the evidence
supporting the termination, and she also contends she was not provided with adequate
accommodation under the Americans with Disabilities Act (ADA) when she was denied
more time to complete services. We affirm.
K.C. was taken into the custody of the Arkansas Department of Human Services
(DHS) in July 2014. The trial court found probable cause to continue temporary custody
following a July 29, 2014 hearing, and then, following an August 25, 2014 adjudication
hearing, the trial court found the child was dependent-neglected. The trial court expressed
its concern about Garrett’s drug use and ordered her to cooperate with DHS and undergo
a psychological evaluation. Garrett’s refusal to submit to DHS drug screens and undergo an
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intensive outpatient drug-treatment program was a continuing problem throughout the
case. The goal of the case was changed to termination following a June 22, 2015
permanency-planning hearing. DHS filed a motion to terminate Garrett’s parental rights on
July 9, 2015, and the termination hearing was held over two days—September 21, 2015,
and October 26, 2015. The order terminating Garrett’s parental rights was entered
November 9, 2015.
At the termination hearing, Dr. Paul DeYoub, a forensic psychologist, testified he
had evaluated Garrett; she was forthright and cooperative; she had a history of substance
abuse and major depression; and her test results demonstrated “very significant depression,
personality problems, substance abuse, difficulty coping, great deal of dependency, feelings
of inadequacy, history of unstable abusive relationships, multiple hospitalizations for
depression, major depression, methamphetamine abuse and alcohol abuse throughout her
adult life.” He explained that for her to be an adequate parent, she would have to completely
recover from her substance-abuse issues; she would require individual counseling,
medication management, and ongoing outpatient treatment for substance abuse; and she
would need to be observed for six months to a year to make sure she was no longer drug
dependent, no longer needed in-patient mental health treatment, and could avoid abusive
relationships. He further explained the child had observed Garrett being beaten by the
child’s father. He stated if Garrett’s only problem were major depression, it could be
properly managed and she could care for the child, but she also suffered from dependent-
personality issues, substance-abuse problems, and poor relationship choices, which made
parenting difficult.
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The trial court asked Garrett’s counsel if she was still refusing DHS drug screens.
Counsel explained she had submitted to drug screening at the Counseling Clinic and she
had one test through DHS very early on that was positive and then had refused others
administered by DHS.
Kenneth Arnold, a substance-abuse coordinator and counselor, testified his
therapeutic relationship with Garrett began on July 13, 2015. He explained she was very
attentive and participatory in group; she understood the necessary changes she has to make;
she tested positive for methamphetamine when she first came into the program; she was
screened every Monday and had received seven tests; and with the exception of the first
test, the results had been negative. As of the hearing date, she had completed thirty-two
hours of intensive outpatient treatment. Arnold described Garrett’s drug use as “moderate,”
explaining that it had been severe in the past to the point she could not function. He stated
she needed to continue the recovery process, but she had maintained sobriety during the
three months she had been in the program. He expressed his belief she could maintain
sobriety.
Kathleen Armstrong, an adoption specialist for DHS, testified she ran an adoption
match for K.C. that came back with 162 possible adoptive family placements, and she felt
she would be highly successful in identifying an appropriate family for the child, despite the
child’s problems with aggression, self-abuse, temper tantrums, and lying.
Boyce Barger, the child’s counselor, testified he had been seeing the child since the
fall of 2014; the behaviors described by the adoption specialist had been treated with
behavior-modification approaches; and there had been a dramatic reduction in the behavior.
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He attributed the results to the stability in the foster parents’ home. He said he would
diagnose the child with adjustment disorder, anxiety, and neglect. He stated the child was
very attached to her mother, spoke of her with affection, and wanted to live with her. He
expressed his belief that if the child were moved into an adoptive home, her behaviors
would restart and need to be addressed again. However, he also stated the child needed to
be in a home that provided a very well-defined and appropriate structure with predictable
outcomes and consequences for appropriate and inappropriate behavior; and she would need
affection. He acknowledged he had not observed Garrett and the child interact, and he
would not know if the child had an attachment disorder or like disorder with her mother
unless he was able to observe them interact. Barger explained that there were no hard and
fast lines where a patient is required to comply with a case plan before beginning family
therapy; family therapy would be counterproductive when the case seems about to fall apart
because a child needs permanency; and there was never any discussion with DHS about
Garrett’s progress and the need for family therapy.
Craig Jones, Garrett’s licensed certified social worker and outpatient therapist,
testified that her compliance had been bumpy; that it went from semicompliant to a long
drought of noncompliance to improved compliance. He stated he began to see improved
compliance around July 2015, which coincided with her admission into the intensive
outpatient drug-treatment program. He explained that Garrett completed parenting and
anger management early on but around January 2015, she became inconsistent with services;
that she missed her initial intake evaluation for IOP services and then missed several
counseling appointments; that she missed her psychological evaluation and a psychiatric
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evaluation; that Garrett had not resumed her medication regimen as of August 30; and that
he believed it was because she was without funds to pay for the medication (lithium). He
said he did not recommend an increase in visitation because more progress needed to be
made. He agreed with Dr. DeYoub’s opinion that she could potentially parent the child if
she completed long-term drug-and-alcohol treatment and got her medication. He stated
Garrett had expressed significant doubts about the validity of the drug tests performed by
DHS; she agreed to take drug tests administered by other people, just not DHS; he believed
her refusal to take the DHS drug test arose out of a feeling of powerlessness, things out of
her control, and feeling threatened; and he attributed it to her mental illness, domestic
violence, and her child being removed. He stated she was beginning to overcome that sense
of powerlessness; she needed to continue counseling, maintain her sobriety and medication
and appointments; and he believed she could demonstrate her stability and willingness to
improve with additional time. He acknowledged there were two or three times over the
course of the case that medication compliance became an issue; failure to maintain her
medication regimen could have a profound impact upon her; lithium has a quick washout
time in the sense that it does not take long to leave a person’s system and reduce its
effectiveness; her severe depression returned without medication for a period of time; she
has issues dealing with stress; she is redirectable and can calm down with support; her stress-
management capacities are somewhat limited; she shuts down and is tearful when stressed;
there was one point when she stopped coming to see him because she believed that
reunification was hopeless; she became reinvigorated and was doing what she was supposed
to do to reunify with her child; some of the missed appointments at the beginning of the
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year were because of weather issues; and her medication regimen currently did not include
the use of lithium. He said he believed increased visitation could start somewhere around
December, and he thought six more months were needed to get to a trial home visit.
Erin Descoteaux, caseworker, testified she was assigned to the case at the end of
August 2015; she had reviewed the file and ascertained that Garrett’s progress with the case
plan was as follows: she completed parenting and anger-management classes; she participated
in a drug-and-alcohol assessment as well as a psychological evaluation; she participated in
intensive outpatient drug treatment and was still in counseling at the Counseling Clinic; she
had her own home; she had Social Security income; she attended AA/NA meetings; and
since the last hearing in September she had taken two drug screens for DHS, both of which
had been negative. She stated the petition to terminate was filed on July 9, 2015. She
explained Garrett did not begin intensive outpatient drug treatment until July 13, 2015. She
stated counseling and outpatient drug treatment were the only two services that were not
completed prior to the filing of the petition to terminate but that those were the two most
significant areas of concern. She said Garrett had appropriate housing and had been
appropriate at visits with the child throughout the case, but she had not paid any child
support. She stated she was aware Garrett was submitting to drug screens at Counseling
Clinic and she trusted those test results. She stated Garrett has mental-health issues. She
acknowledged that DHS is subject to the Americans with Disabilities Act; that Garrett had
completed most of her services but they needed to see a long period of stability in her
services, sobriety from all substances, stable mental health, and maintenance of her
medications and counseling. She explained they had asked Garrett for names of relatives
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who might be able to take the minor child, and she provided her adult son’s name; there
were no problems with his background checks, but he lived with her and they did not know
if he had the means to support the child on his own. She acknowledged the child receives
Social Security benefits from her mother, and those benefits would be considered when
assessing whether her brother could financially support her.
Garrett testified she visits with her child every Friday; she missed one visit because
she was incarcerated for failing to appear on a shoplifting charge; she was not able to
consistently participate in services because of transportation issues; she did not realize DHS
would provide transportation; and she did not want to start services if she could not be
consistent and did want to rely on other people two and three times a week. She explained
she refused to take drug screens for DHS because she lost power in every part of her life
and the one thing she could grasp onto was her resentment of DHS for doing this; it was
not until she realized her child could be taken away forever that she realized what she was
doing was wrong; she realizes it was her fault the child was taken into care, not DHS’s; she
has accepted responsibility, and it has helped her in counseling; she was more than willing
to move out of her house so that her twenty-one-year-old son could have her daughter
with him; and if things go well, and she is able to move back in, her son could be her
support system. She stated her father was helping her son get a truck; she has family support;
she speaks with her dad every day; and her sister originally took the child but brought her
back when she got mad at Garrett because Garrett told her she was “going to beat her ass if
she didn’t quit acting the way she was.” She said she got rides from DHS employees during
the day, but did not realize they would assist her after hours until she learned of that service
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at a staffing. She said she provides for herself financially from her disability and by selling
items on eBay; she might have joked about getting money another way, but she was being
sarcastic. She acknowledged she had violated the court’s order by refusing to submit to drug
screens for DHS. She also acknowledged her son was taken from her care as a child; her
mother had guardianship of him; and she got him back. She stated if the court gave her
more time to get K.C. back, she would continue to cooperate; she feels she is making
progress with Craig Jones; she also liked working with Ken Arnold; she has not used drugs
for a while; and there was a time her services were delayed because Counseling Clinic
burned and all the records had been lost.
During closing arguments, Garrett’s counsel commented, “Your honor we did bring
to your attention the Americans with Disabilities Act. While I agree that we did not make
a request for reasonable accommodations to the Department, I do not think the Department
can provide us with the one accommodation my client needs and that is a greater amount
of time to complete services than the ordinary individual would require. Only you can order
that accommodation and that is what we are requesting.”
For her first point of appeal, Garrett contends the trial court erred in granting the
petition to terminate her parental rights. We disagree.
The trial court terminated the rights of both parents. This appeal involves only the
mother. In pertinent part, the trial court found the following statutory grounds had been
proved: 1) that the child had been adjudicated dependent-neglected and continued out of
the parent’s custody for twelve months, and despite meaningful efforts by DHS to
rehabilitate and correct the conditions that caused removal, those conditions had not yet
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been remedied by the parent; 2) that the child had lived outside the parent’s home for a
period of twelve months, and the parent willfully failed to provide significant material
support in accordance with the parent’s means; and 3) that other factors and issues arose
subsequent to the filing of the original petition for dependency-neglect that demonstrate
that placement of the juvenile in the custody of the parent was contrary to the juvenile’s
health, safety, and welfare and that, despite the offer of appropriate family services, the parent
had manifested the incapacity and indifference to remedy the subsequent issues or factors or
rehabilitate the parent’s circumstances that prevented placement of the juvenile in the
parent’s custody. In addition, the trial court found that termination was in the child’s best
interest, considering the likelihood the juvenile would be adopted and the potential harm
to the health and safety of the juvenile caused by returning her to the parent’s custody.
Our review of cases involving the termination of parental rights is de novo. Harbin
v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. A trial court’s
termination of parental rights must be based on factual findings proven by clear and
convincing evidence. Basham v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 232, 490
S.W.3d 330. We will not reverse a trial court’s ruling as to termination unless it is clearly
erroneous. Id. In order to terminate parental rights under Arkansas law, a trial court must
find that at least one statutory ground for termination has been established and that
termination would be in the child’s best interest. Id. In determining the best interest of the
child, the court must take into consideration the likelihood of adoption and the potential
harm to the health and safety of the child that would be caused by return to custody of the
parent. Id.; Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). Credibility determinations
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are left to the fact-finder. Harbin, supra. Only one statutory ground is necessary to terminate
parental rights. Vail v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 150, 486 S.W.3d
229.
Here, the trial court found as one statutory ground that K.C. had been adjudicated
dependent-neglected and continued out of Garrett’s custody for twelve months, and despite
meaningful efforts by DHS to rehabilitate and correct the conditions that caused removal,
those conditions had not yet been remedied by the parent. Another ground the trial court
found was that other factors and issues arose subsequent to the filing of the original petition
for dependency-neglect that demonstrated placement of the juvenile in the custody of the
parent was contrary to the juvenile’s health, safety, and welfare and that, despite the offer of
appropriate family services, the parent had manifested the incapacity and indifference to
remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that
prevented placement of the juvenile in the parent’s custody.
We are not left with a definite and firm conviction the trial court made a mistake
with respect to either ground. As previously mentioned, proof of only one ground is
sufficient to terminate, making it unnecessary to discuss the remaining ground found by the
trial court involving lack of material support. As noted by the trial court in its order, K.C.
was removed from Garrett on July 25, 2014; Garrett tested positive in her first court-ordered
drug screen, and then refused to participate in the remaining DHS drug screens ordered by
the court; she did not participate in DHS drug screening until October 2015, which even
though it was negative, was performed after the petition to terminate had been filed; drug
screens that are refused are deemed to be positive; Garrett’s therapist, Craig Jones, testified
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he could not recommend increased supervised visitation until he had seen months of
progress; and Dr. DeYoub opined that Garrett’s treatment needed to continue for a
minimum of six months and as long as a year to prove she was stable, compliant with mental-
health treatment, and not relapsing into substance abuse. The court found it unreasonable
to have the child wait another six months to a year to see if Garrett was able to maintain
her sobriety and her mental health. The trial court further found that at the time the child
was removed, a hair-follicle test was positive for methamphetamine; that Garrett also tested
positive for methamphetamine; that Garrett had refused the random DHS drug testing; that
she only began outpatient drug treatment after the termination petition had been filed; that
during the period from January 2015 to mid-July 2015, she participated in no drug treatment
or NA/AA meetings, and only recently began complying with the medication-management
regimen outlined by her psychiatrist; that K.C.’s behavioral issues were related to the neglect
she suffered from the mother; that K.C.’s behavior had improved dramatically with
appropriate behavior modification and stability received in foster care; and that no family-
therapy sessions were undertaken because it would be counterproductive to do so when
Garrett was not participating in the case plan and the case was about to fall apart, as explained
by Mr. Barger. The trial court determined that Garrett’s lack of participation in services and
consistent treatment indicated her incapacity or indifference to remedying the factors that
prevented K.C.’s placement with her.
With respect to the trial court’s finding that it was in the child’s best interest to
terminate Garrett’s rights, the trial court noted Cathleen Armstrong testified 162 families
were interested in adopting a child with similar characteristics, and Armstrong anticipated
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being highly successful in finding a match between the child and an adoptive family. The
trial court further relied upon the testimony of Descoteaux and Dr. DeYoub in
demonstrating that the child would be at risk of potential harm if she were returned to
Garrett. Again, we are not left with the conviction that the trial court made a mistake.
The intent of our termination statute is to provide permanency in a minor child’s life
in circumstances where returning the child to the family home is contrary to the child’s
health, safety, or welfare, and where the evidence demonstrates that the return cannot be
accomplished in a reasonable period of time as viewed from the child’s perspective. Harbin,
supra; Ark. Code Ann. § 9-27-341(a)(3). The child’s need for permanency and stability may
override the parent’s request for additional time to improve the parent’s circumstances. Id.
The issue is whether the parent has become a stable, safe parent able to care for the child.
Id. The court may consider the parent’s past behavior, and even full compliance with the
case plan is not determinative. Id.
Garrett appears to have finally realized the seriousness of the case when the goal was
changed to termination—July 2015. While from that point forward she seems to have
applied herself to remedying her substance abuse and mental-health issues, her eleventh hour
efforts were simply too late. See, e.g., Villanueva v. Arkansas Dep’t of Human Servs., 2014 Ark.
App. 401, 439 S.W.3d 65. There was testimony from Dr. DeYoub that another six months
to a year would be necessary to make sure she was no longer drug-dependent, could stay
out of mental hospitals, and could avoid abusive relationships. The trial court was justified
in balancing all of those factors against the child’s need for stability and permanence. Garrett
has not convinced us that the trial court clearly erred in terminating her parental rights.
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For her remaining point of appeal, Garrett contends the trial court failed to provide
an adequate accommodation under the Americans with Disabilities Act when it refused to
allow her more time to complete services. We do not address the issue because it was not
preserved for our review. As demonstrated earlier in this opinion, Garrett never properly
developed this ADA argument before the trial court nor did she receive a ruling on the
issue. She is therefore prevented from raising it on appeal. Woodall v. State, 2011 Ark. 22,
376 S.W.3d 408.
Affirmed.
HARRISON and VAUGHT, JJ., agree.
Wallace, Martin, Duke and Russell, PLLC, by: Valerie L. Goudie, for appellant.
Jerald A. Sharum, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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