Cite as 2017 Ark. App. 229
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-1119
ERNEST ADKINS Opinion Delivered: April 12, 2017
APPELLANT
APPEAL FROM THE MARION
V. COUNTY CIRCUIT COURT
[NO. 45JV-15-9]
ARKANSAS DEPARTMENT OF HONORABLE DEANNA SUE
HUMAN SERVICES AND MINOR LAYTON, JUDGE
CHILDREN
APPELLEES REVERSED AND REMANDED
KENNETH S. HIXSON, Judge
Appellant Ernest Adkins (Ernest) appeals from the Marion County Circuit Court’s
permanency-planning order. In the order, the trial court changed the goal of the case to
termination of parental rights and adoption. On appeal, appellant generally contends that
the trial court erred in changing the goal of the case. We reverse and remand.
On May 1, 2015, the Arkansas Department of Human Services (DHS) filed a petition
for emergency custody and dependency-neglect of I.A. (DOB 12-22-2006) and D.A. (DOB
9-5-2012). In the affidavit attached to the petition, DHS stated that it removed the children
from the home after it received a referral that the children’s parents, Alisha Adkins (Alisha) 1
and Ernest, were using drugs while caring for the children. During an investigation, DHS
discovered that the children lived with both parents and with their maternal grandmother,
1
Alisha is no longer a party to this appeal, as her appeal was dismissed as moot by this
court on February 1, 2017.
Cite as 2017 Ark. App. 229
Pearl Zimmerman (Pearl). Pearl stated that the family had moved into her home to take
care of her because she had breast cancer; yet, she stated that she was unable to proceed with
chemotherapy treatments because she had to take care of the children. Pearl suspected that
Alisha and Ernest were using drugs. I.A. confirmed that her parents used drugs and that her
parents got “really mean” when using drugs. Alisha admitted to the investigator that she
had used drugs. The trial court found probable cause existed for the removal. An
adjudication hearing was held on June 30, 2015, and the trial court found that the children
were dependent-neglected. The trial court set the goal of the case at that time to
reunification with a concurrent plan for relative placement.
A review hearing was held on August 12, 2015, and the trial court found that the
case plan was moving toward an appropriate permanency plan. However, the trial court
additionally found that the parents had not been complying with the case plan at that time
and ordered that Pearl be considered for placement. In the October 28, 2015 review
hearing, the trial court found that Alisha still had not complied with the case plan, other
than to attend visitation and submit to drug screens, and that Ernest still had not complied
with the case plan, other than to attend visitation, submit to drug screens, and obtain
employment. Then, at the February 2016 review hearing, the trial court again found that
the parents had only minimally complied with the case plan.
A permanency-planning hearing was held on April 20, 2016. Only Jennifer Matney,
the family-service-worker supervisor, testified at the hearing. The children were nine years
old and three years old at the time of the hearing. She explained that they were currently
placed together with their aunt in a provisional foster home. She testified that the children
2
Cite as 2017 Ark. App. 229
were doing well and that their needs were being met. 2 Although the goal of the case had
been reunification, Matney requested that the goal be changed to termination of parental
rights because the parents had made only minimal progress in their case plan. Matney
testified that the maternal grandmother, Pearl, had been exercising visitation with the
children and that supervised visitation would take place at Pearl’s home when the children’s
parents visited. Although Pearl tested positive for drugs during her drug screens, Matney
explained that Pearl was undergoing treatment for cancer and that the treatment would “trip
her drug screens.” Therefore, Matney explained that DHS verified that Pearl had
prescriptions for the drugs found in her system and that she did not have any concerns that
Pearl was using illicit drugs at that time. Matney testified that Pearl had just begun to have
extended visitation with the children and that Pearl was a potential candidate for adoption
or relative placement. Matney further acknowledged that the children had a strong bond
with their parents and with their grandmother.
After Matney’s testimony, both parents joined in asking for a directed verdict and
orally argued why the goal of the case should remain as reunification. Alisha specifically
argued that the permanency-planning statute listed relatives as a preference. She argued that
she did not understand why there was any reason to “employ a termination because
permanency can actually, indeed, be achieved faster for a child with relatives rather than
termination. Because we have relatives sitting right in the courtroom today.” Alternatively,
she requested that a separate placement hearing be held to consider placement with Pearl if
the goal was changed to termination. The attorney ad litem acknowledged that the children
2
The aunt’s name is not included in the record.
3
Cite as 2017 Ark. App. 229
had been placed with their aunt and uncle in provisional foster care. However, the attorney
ad litem opined that termination would be in the best interest of the children. The trial
court denied the motions for directed verdict and changed the goal of the case to termination
and adoption.
In the amended permanency-planning order filed on October 11, 2016, the trial
court made the following relevant findings:
3. The Court, mindful of the available permanency planning dispositions and
in accordance with the best interest, health and safety of the juvenile, does hereby
determine the goal of the case shall be:
Authorizing a plan for adoption with the department filing a petition for
termination of parental rights because:
(A) The juvenile is not being cared for by a relative and termination of parental
rights is in the best interest of the juvenile;
(B) The Department has not documented in the case plan a compelling reason
why a petition for termination of parental rights is not in the best interest of the
juvenile;
(C) The Department has provided to the family of the juvenile, consistent
with the time period in the case plan, such services as the Department deemed
necessary for the safe return of the juvenile to the juvenile’s home if reunification
services were required to be made to the family; and
(D) The Court finds that the permanent goal for the juvenile shall be a plan
for adoption with the Department filing a petition for termination of parental rights.
Having set the goal to be adoption, the Court has determined that parent counsels
shall continue to represent the parents for termination purposes.
....
8. The Court finds that the parent(s) HAVE NOT complied with the case
plan and the orders of this Court, specifically, parental drug use continues to be an
issue in this case. The mother has not completed drug treatment and the Court has
nothing before it to show she is pursuing recovery or addressing her addiction. The
Court notes that Mr. Adkins has not been a reliable support system. Moreover, the
mother has an outstanding arrest warrant that undercuts any notion of maternal
4
Cite as 2017 Ark. App. 229
stability. The parents have not provided proof of parenting classes, employment, or
stable housing. The parents have not been available to the Department and have not
allowed the Department to inspect their home. The Court also notes the parents
have left much wanting in regards to providing for the juveniles’ basic needs. [I.A.],
based on her age, knows her parents are using drugs and [D.A.] has special needs that
the Court believes may be caused or exacerbated by the lack of parental stability in
this case. . . .
9. The Court finds and orders:
A. That the parents have not remedied the circumstances that caused
removal.
B. That the parents have not made substantial, measurable progress
towards achieving reunification.
C. The Department and the parents shall go to the parents’ home
today to allow the Department to inspect the home.
D. Mrs. Zimmerman shall submit to a hair follicle test.
E. An additional special relative placement hearing will not be
scheduled at this time. Court has considered relatives available at each hearing
including this one and relative placement cannot be made at this time.
10. The Court finds that the visitation plan is appropriate for the juvenile(s)
and the parent(s). Relative placement will be considered again at the next hearing.
(Emphasis added.) The trial court attached a Rule 54(b) certification to the order pursuant
to the Arkansas Rules of Civil Procedure (2016), and this appeal followed.
I. Standard of Review
We review findings in dependency-neglect proceedings de novo, but the trial court’s
findings will not be reversed unless the findings are clearly erroneous. Ellis v. Ark. Dep’t of
Human Servs., 2016 Ark. 441, 505 S.W.3d 678. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court based on the entire evidence,
is left with a definite and firm conviction that a mistake has been committed. Id. While
5
Cite as 2017 Ark. App. 229
we give due deference to the trial court’s determination of the credibility of the witnesses
and the weight to be given their testimony, the circuit court’s conclusions of law are given
no deference. Id.
II. Arkansas Code Annotated Section 9-27-338(c)(4)
Appellant contends on appeal that the trial court erred in changing the goal of the
case to termination and adoption. Appellant argues that, at the time of the permanency-
planning hearing, the children were placed with their aunt, they were receiving extended
visitation at their grandmother’s home, and both the aunt and the grandmother had made
long-term commitments to the children and were willing to pursue guardianship or
permanent custody. Therefore, appellant argues that the trial court erred in finding that the
aunt or the grandmother failed to satisfy the requirements of Arkansas Code Annotated
section 9-27-338(c)(4)(A)(i) (Repl. 2015). He further argues that it is not in the children’s
best interest to terminate parental rights because (1) the children already have permanency
in their current placement, (2) the children would suffer a severe negative impact if they are
stripped of their bond with their parents, and (3) the children would suffer a severe negative
impact if they are stripped of their bond with their grandmother.
A permanency-planning hearing under Arkansas Code Annotated section 9-27-
338(a)(1) is held to finalize a permanency plan for the children. Section 9-27-338 provides
in pertinent part
(c) At the permanency planning hearing, based upon the facts of the case, the circuit
court shall enter one (1) of the following permanency goals, listed in order of
preference, in accordance with the best interest, health, and safety of the juvenile:
(1) Placing custody of the juvenile with a fit parent at the permanency planning
hearing;
6
Cite as 2017 Ark. App. 229
....
(4) Authorizing a plan for adoption with the department’s filing a petition for termination of
parental rights unless:
(A) The juvenile is being cared for by a relative and the court finds that:
(i) Either:
(a) The relative has made a long-term commitment to the child and the
relative is willing to pursue guardianship or permanent custody; or
(b) The juvenile is being cared for by his or her minor parent who is in
foster care; and
(ii) Termination of parental rights is not in the best interest of the juvenile;
(B) The department has documented in the case plan a compelling reason
why filing such a petition is not in the best interest of the juvenile and the
court approves the compelling reason as documented in the case plan; or
(C)(i) The department has not provided to the family of the juvenile,
consistent with the time period in the case plan, such services as the
department deemed necessary for the safe return of the juvenile to the
juvenile’s home if reunification services were required to be made to the
family.
(ii) If the department has failed to provide services as outlined in the
case plan, the court shall schedule another permanency planning
hearing for no later than six (6) months[.]
(Emphasis added.)
DHS failed to address in its brief appellant’s specific argument that the trial court
erred in changing the goal of the case because it found that the children were not being
cared for by a relative when they were, in fact, being cared for by their paternal aunt.
Instead, DHS argued that the trial court’s best-interest findings were not clearly erroneous
because the parents failed to comply with the case plan. Appellant does not dispute the trial
7
Cite as 2017 Ark. App. 229
court’s findings that he was not in full compliance with the case plan. Instead, he argues
that the trial court failed to follow the preferential goals in the permanency-planning statute
under section 9-27-338(c)(4). We agree.
Here, Matney testified that the children were being cared for by their aunt in
provisional foster care, and this testimony was undisputed. In fact, the attorney ad litem
confirmed in closing argument at the permanency-planning hearing that the children were
living with their aunt and uncle. Furthermore, there was no testimony that this placement
needed to change or that the aunt was unwilling to continue to care for the children.
Instead, Matney testified that the children were doing well and that their needs were being
met. Despite this undisputed testimony, the trial court specifically found that changing the
goal of the case to termination of parental rights and adoption was appropriate because “[t]he
juvenile is not being cared for by a relative.” (Emphasis added.) That is incorrect; the juveniles
were being cared for by a relative—their paternal aunt. Therefore, we hold that the trial
court’s finding that the children were not being cared for by a relative was clearly erroneous.
Even though the trial court could still find that termination of parental rights and
adoption is in the children’s best interest and appropriate under section 9-27-338(c)(4), the
record before us does not indicate that the trial court considered the additional factors
enumerated under section 9-27-338 because the trial court erroneously found that the
children were not being cared for by a relative. See generally Ferguson v. Ark. Dep’t of Human
Servs., 2016 Ark. App. 258, 492 S.W.3d 880. Thus, we must reverse and remand for further
proceedings consistent with this opinion. Because we reverse and remand, we do not need
to address appellant’s remaining arguments.
8
Cite as 2017 Ark. App. 229
Reversed and remanded.
GLOVER, J., agrees.
BROWN, J., concurs.
Worlow Law, LLC, by: Jacob Worlow, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
9