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ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-521
Opinion Delivered: October 26, 2016
COURTNEY HOLMES
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04JV-2015-47-3]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR
CHILDREN HONORABLE THOMAS SMITH,
JUDGE
APPELLEES
AFFIRMED
BART F. VIRDEN, Judge
The Benton County Circuit Court terminated the parental rights of appellant
Courtney Holmes to her children, K.R.H. (DOB: 10-4-2007) and K.M.H. (DOB: 3-13-
2009).1 On appeal to this court, Holmes argues that the evidence supporting the termination
was insufficient under the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901
et seq. We affirm.
I. Procedural History
In January 2015, the Arkansas Department of Human Services (DHS) filed a petition
for emergency custody and dependency-neglect concerning Holmes’s children. In an
affidavit attached to the petition, family service worker Jessica Thompson attested that on
January 18, 2015, DHS received a call from the Siloam Springs Police Department to report
1
The trial court also terminated the rights of the children’s father, John Holmes, but
he is not a party to this appeal.
Cite as 2016 Ark. App. 495
that Holmes had rear ended another vehicle with the children in the car and that she had
been arrested for driving while intoxicated, endangering the welfare of a minor, and reckless
driving. Holmes had admitted using methamphetamine earlier that morning. In addition,
Thompson learned that the police had been dispatched to Holmes’s residence the previous
day, January 17, for a welfare check because the children had been seen playing in the street
with no adult supervision. It was reported that Holmes appeared to be under the influence
in that she had stumbled and fallen against a wall. Also, she had not known where her
children were but had thought that a friend was watching them. Thompson also learned
that the police encountered Holmes earlier on January 18 after Holmes had reported a
burglary at her residence. While an officer was speaking with Holmes, K.R.H. walked up
with a hypodermic syringe and said that K.M.H. had found it in their backyard. The officer
noted that Holmes had appeared to be under the influence. Thompson’s affidavit also
indicated that there had been several previous investigations on the family but that all the
allegations had been found unsubstantiated; however, there was an ongoing investigation
into sexual abuse of K.M.H. by her father, John.
On January 22, 2015, the trial court entered an ex parte order for emergency custody.
In a probable-cause order, the trial court noted that the ICWA applied and that the parties
had stipulated to probable cause. The court ordered Holmes to submit to a drug assessment
and drug testing, complete parenting classes, attend “HELP” for parents with kids in foster
care, and maintain a calendar of her activities. The trial court ordered that there be no
contact between John and his children.
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In March 2015, the trial court adjudicated the children dependent-neglected due to
neglect and abuse. A review order entered in June 2015 indicated that Holmes had complied
with the case plan by attending inpatient drug treatment. Holmes was ordered to, among
other things, submit to random drug testing, obtain a drug assessment, and complete
inpatient/outpatient drug treatment. Another review order was entered in September 2015
in which the trial court found that Holmes had partially complied with the case plan and
noted that DHS had provided services, including a substance-abuse evaluation, random drug
testing, substance-abuse treatment, counseling, parenting classes, foster placement,
community-resource referrals, visitation, and medical/dental services. On November 5,
2015, DHS filed a petition for termination of parental rights. A hearing was held over the
course of three days in January and February 2016.
II. Termination Hearing
Nicole Allison testified that she had been a child-welfare specialist for the Cherokee
Nation for over nine years. She stated that she had qualified as an expert on Indian affairs in
over 1,000 cases and had received training in Tribal customs and culture. 2 Allison said that
she was notified at the very beginning of the case and had been kept apprised of the services
offered by DHS. According to Allison, her job was to evaluate active efforts and ensure that
active efforts were made to prevent the breakup of an Indian family. Allison testified that
she believed that active efforts had been made by DHS. Allison further testified that DHS
should not be penalized if drug-treatment referrals were delayed due to Holmes’s having
2
Holmes did not challenge Allison’s qualifications as an expert.
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canceled her appointments. She opined that Holmes had not made use of the services
offered.
Allison also testified that she thought continued custody by Holmes would likely
result in serious emotional and physical damage to the children. She said that one of her
concerns was the fact that four referrals for drug treatment had been made and that Holmes
had left treatment three times. She also stated that Holmes had been referred for intensive
outpatient treatment but that she had instead sought inpatient treatment. Allison did not
recall Holmes ever asking for transportation but noted that Holmes had attended all of the
DHS staffings without ever needing a ride and that she had not had a problem getting to
court. Allison acknowledged that having multiple surgeries, as Holmes had, likely impacted
her ability to complete inpatient drug treatment. Nevertheless, she testified that, when
Holmes left Decision Point for a second time due to a slip and fall, she believed that Holmes
should have stayed for treatment because “if she was well enough to come back and collect
her belongings, I believe she was well enough to come back and stay.” Allison further
testified that other concerns were the true finding of sexual abuse of K.M.H. by John and
Holmes’s failure to protect her child. According to Allison, Holmes had initially stated that
she would leave John, but at the next staffing it was discovered that Holmes had been staying
in a hotel with John. Allison worried that Holmes would permit John to be around his
daughter and that she could be molested again. Allison testified that the children’s best
interest would be served by terminating parental rights.
Sarah Harper, a foster-care worker at DHS, testified that she was assigned to the case
in April 2015. Harper stated that Holmes had completed parenting classes and appeared to
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share a bond with the children. She testified, however, that Holmes was not economically
stable in that she had not held down a job. Harper further testified that Holmes had not
completed counseling and that her discharge paperwork indicated that she had been dropped
from the program because the counselor had called her three times to set up appointments,
and Holmes had missed all three appointments. She also said that Holmes had lived in
approximately eight different places and was currently living with people she had met on
Facebook. Harper said that she had not been able to drug test Holmes over the previous
five months because Holmes had moved around and not provided contact numbers. Harper
stated that, although she had been unable to monitor Holmes’s drug use, she was confident
in saying that Holmes’s substance-abuse problem was unresolved.
Harper also testified that the first drug-treatment referral had been made in January
or February 2015 and that she had made a referral in May 2015, followed by “re-referrals”
in September, December, and the following January. Harper said that Holmes had not yet
completed drug treatment. She stated that Holmes had never asked for transportation to
attend intensive outpatient treatment but noted that Holmes had been given six months of
bus passes, which she had not used. Harper also pointed out that Holmes had given DHS
prior notice of her need for transportation to visitation and that DHS had provided
transportation for her.
Harper stated that there were approximately 130 potential placements for the
children, not including what the Cherokee Nation had found. She said, “I absolutely feel
like it’s reasonably likely that adoption will occur for these two children.” She also stated
that CASA (Court Appointed Special Advocates) had found notes written by John in the
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children’s possession. Harper surmised that Holmes had passed those notes along and
believed that this violated the trial court’s no-contact order.
Dwight Hignite testified that he had met Holmes the previous Tuesday at the faith-
based “Insight Group,” which deals with addictions. He described it as a nine-week, low-
intensity self-help group. Hignite said that Holmes had sought him out to help with her
admitted use of methamphetamine and alcohol.
Holmes testified that she had gone to inpatient treatment at Decision Point in June
2015 and had been medically discharged in July; that she had undergone surgery for a bowel
obstruction and had been hospitalized for three weeks; that she had gone back to Decision
Point in August and had left again in early to mid-October because she had fallen and had
felt pain in her stomach, which concerned her given her recent surgery; and that, when she
had attempted to return to Decision Point, the facility would not admit her. Holmes stated
that, although Decision Point had recommended intensive outpatient drug treatment for
her, she had felt that it would be better if she sought inpatient treatment because she did
not have transportation or money for gas. She stated that she had informed someone at DHS
that she had no transportation and did not recall having been provided with bus passes.
Holmes testified that, although she had a substance-abuse problem at one time, she did not
currently have one. She testified, however, that she had made plans to go to Monarch, a
drug-treatment facility in Oklahoma, that day because “it would be helpful.” 3
3
A CASA report indicated that Holmes had been referred to Monarch by Allison but
that Holmes had not followed through with intake as of January 21, 2016. The report noted
that she had entered Decision Point for a fourth time and had received another referral for
treatment.
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Holmes further stated that she had completed parenting classes and that she had held
down a job at a gas station for three weeks but that parenting classes and court dates had
disrupted her work schedule. Holmes testified that she had moved five times at most. She
said that, although she had told Harper that she was homeless, she had received no help
from DHS with housing. According to Holmes, she had applied for HUD on her own and
had been placed on a waiting list. Holmes stated that she had stopped counseling only
because she had been hospitalized. She admitted that she had not attended HELP and that
she had attended only approximately half of the visits with her children. According to
Holmes, she had left her calendar of activities at home, and she had no sign-in sheets from
AA/NA meetings.
Holmes testified that she was willing to protect K.M.H. from John, but she also
testified that she was still married to John and did not know what plans she had for their
relationship. Holmes stated that she was aware of the no-contact order but that she had
permitted John to speak with the children on the phone.
Sam Wallace, who performed a psychosexual evaluation on John, testified that John
had denied having any sexual behavioral problems. He stated that his evaluation indicated
that John was at a moderate to low risk of sexual reoffense but that the fact that John would
not admit that the abuse had occurred was a significant barrier to treatment.
John testified that he had attempted to reconcile twice with Holmes but that they
were not currently together. He further testified that he had not been arrested for sexually
abusing K.M.H.
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In its order terminating parental rights, the trial court noted that it had made all of
its findings based on a beyond-a-reasonable-doubt standard.4 The trial court found that DHS
had proved grounds under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015) (twelve-
month failure to remedy), (vii)(a) (subsequent factors), and (ix)(a) (aggravated
circumstances). In finding that termination was in the children’s best interest pursuant to
section 9-27-341(b)(3)(A), the trial court found credible Harper’s testimony that adoption
was reasonably likely and that potential harm could result if the children were returned to
Holmes’s custody.
The trial court noted that the ICWA applied and that the children were members of
the Cherokee Nation. The trial court found that Allison was a qualified expert witness for
ICWA purposes who offered credible testimony that the requirements of 25 U.S.C. § 1912
had been met.
III. Indian Child Welfare Act
According to the ICWA, the party seeking to terminate parental rights shall satisfy
the court that active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that these efforts have
proved unsuccessful. 25 U.S.C. § 1912(d). Moreover, no termination of parental rights may
be ordered in such proceeding in the absence of a determination, supported by evidence
beyond a reasonable doubt, including testimony of qualified expert witnesses, that the
4
In Timmons v. Arkansas Department of Human Services, 2010 Ark. App. 419, 376
S.W.3d 466, this court said that the better practice for the circuit court would have been to
employ a dual burden of proof to separate sets of findings under Ark. Code Ann. § 9-27-
341 and 25 U.S.C. § 1912(f).
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continued custody of the child by the parent is likely to result in serious emotional or
physical damage to the child. 25 U.S.C. § 1912(f).
IV. Standard of Review
Termination-of-parental-rights cases are reviewed de novo. Jackson v. Ark. Dep’t of
Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276. Grounds for termination of parental
rights must be proved by clear and convincing evidence, and the appellate inquiry is whether
the trial court’s finding that a disputed fact was proved by clear and convincing evidence is
clearly erroneous. 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. Id.
Holmes, however, does not challenge grounds or the trial court’s best-interest finding
under state law. Rather, she argues that the evidence was insufficient under the ICWA,
where the burden of proof in termination-of-parental-rights cases is beyond a reasonable
doubt. Ark. Code Ann. § 9-27-325(h)(3)(B). Holmes incorrectly asserts that this court’s
standard of review is the same as in a criminal case—substantial evidence. Thornton v. State,
2014 Ark. 157, 433 S.W.3d 216. In Timmons, supra, this court noted that Arkansas has not
applied the substantial-evidence standard of review in cases involving the ICWA. Findings
of fact in civil bench trials are reviewed under a clearly-erroneous standard. See Ark. R. Civ.
P. 52(a). Although the burden of proof is beyond a reasonable doubt, this court’s review is
de novo, and we do not reverse the trial court’s findings of fact unless they are clearly
erroneous. See Jackson, supra; cf. Ark. Teacher Ret. Sys. v. Short, 2011 Ark. 263, 381 S.W.3d
834 (taxpayer must establish entitlement to exemption beyond a reasonable doubt, and
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standard of review is whether findings of fact were clearly erroneous); Merriman v. Yutterman,
291 Ark. 207, 723 S.W.2d 823 (1987) (right to reform deed must be established beyond a
reasonable doubt, and standard of review is whether trial court’s decision was clearly
erroneous); Robinson v. Estate of Robinson, 2016 Ark. App. 130, 485 S.W.3d 261 (where
will’s proponent had burden of proof, or of going forward with proof, beyond a reasonable
doubt, question on appeal is not whether this court has such a doubt but whether the trial
court’s decision was clearly erroneous).
V. Discussion
A. Active Efforts
Holmes argues that, while the Juvenile Code requires reasonable efforts, the ICWA
requires active efforts, which she asserts involves a higher standard of proof. Holmes states
that there is no dispute that she entered drug-treatment facilities multiple times but contends
that she only left due to health concerns. She maintains that the services offered by DHS
were “menial and average” and that even the trial court acknowledged that more could
have been done.5
Although expert testimony was not necessary, Allison specifically testified that DHS
had made active efforts under the ICWA to prevent the breakup of an Indian family. She
said that multiple referrals for drug treatment amounted to “active efforts” and that those
efforts had proved unsuccessful when Holmes did not stay long enough at any facility to
complete drug treatment. There was no dispute that Holmes had health issues that could
5
Despite any comments from the bench, the trial court repeatedly found in its orders
that active efforts had been made by DHS.
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have affected her ability to complete treatment. The trial court specifically found that “Ms.
Holmes did have medical issues that contributed to the delay in her resolving her substance
abuse issues but those should not have interfered with completion of treatment for 30 days
in the last year.” In addition to the multiple referrals for drug treatment, Holmes was ordered
to complete counseling to address both her substance-abuse issues and the sexual-abuse
allegations. Holmes, however, was dropped from counseling because she had missed several
appointments. We cannot say that the trial court clearly erred in determining that DHS
proved beyond a reasonable doubt that active efforts were made.
B. Serious Damage
Holmes argues that she was diligent in her attempts to complete drug treatment but
that her efforts were thwarted by her recurring health issues. Holmes maintains that,
although there was a true finding of sexual abuse against John, it was only an allegation. She
also points out that she had stable housing and income before the case had begun while she
was with her husband. Holmes states that these issues do not rise to the level of required
proof of damage.
Allison specifically testified as an expert that Holmes’s continued custody of the
children was likely to result in serious emotional or physical damage to them. The biggest
concern was Holmes’s use of drugs and failure to take advantage of the many referrals for
drug treatment from DHS over the course of more than a year. Moreover, Holmes denied
having any substance-abuse problem at the termination hearing. Also of concern was the
fact that an agency had made a true finding of sexual abuse against John. Holmes failed to
complete counseling, which would have helped her gain insight into how to protect
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K.M.H. from further abuse. Although Holmes asserted that she would protect K.M.H., she
also said that she did not know whether K.M.H. had been sexually abused; she disobeyed a
court order that her children were to have no contact with John; and she had attempted to
reconcile with John, was still married to him as of the termination hearing, and testified that
she was unsure of her future plans for their relationship. We do not disagree that John
provided Holmes and the children stability with respect to housing and income, but we
cannot overlook the true finding of sexual abuse against John notwithstanding the absence
of criminal charges. We hold that the trial court did not clearly err in determining that DHS
proved beyond a reasonable doubt that Holmes’s continued custody was likely to result in
serious emotional or physical damage to the children.
Affirmed.
GLADWIN, C.J., and GLOVER, J., agree.
Tabitha McNulty, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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