Ware v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 480

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-578

QUINSHONDA WARE Opinion Delivered: October 19, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. 66JV-2010-73]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR HONORABLE LEIGH ZUERKER,
CHILDREN JUDGE
APPELLEES
AFFIRMED

RITA W. GRUBER, Judge

Appellant, Quinshonda Ware, appeals from an order of the Sebastian County Circuit

Court terminating her parental rights to her children D.S., born August 28, 2007; L.S., born

October 9, 2008; S.S., born October 13, 2009; and M.S., born January 29, 2013. She

presents three points on appeal: (1) there was insufficient evidence to support the grounds

for termination; (2) there was insufficient evidence that termination was in the children’s best

interest; and (3) the circuit court erred in terminating her parental rights when placement

with a relative was being considered. We affirm the circuit court’s order.

The events that led to the termination began on September 19, 2014, when local law

enforcement contacted the Arkansas Department of Human Services (DHS) for assistance

with appellant’s four children. Appellant had left the children with her mother and failed to

return. The grandmother subsequently called the local police, stating that she could no longer
 Cite as 2016 Ark. App. 480

care for the children and had been unable to locate appellant. The DHS worker was also

unable to make contact with appellant, and a 72-hour hold was placed on the children. The

DHS caseworker’s affidavit attached to the petition for emergency custody stated that there

had been true findings of maltreatment against appellant in reference to her illegal drug use;

that the children had been in foster care from January 22, 2010, through March 2011; and

that St. Francis County DHS had opened a protective-services case on the family on July 14,

2014, as a result of appellant’s drug use.

The court granted DHS’s petition for emergency custody and on December 3, 2014,

entered an order adjudicating the children dependent-neglected based on neglect and

parental unfitness due to appellant’s having left her children and failing to retrieve them as

previously arranged. The court also noted that appellant had refused to return calls from the

grandmother and the police officers who were attempting to locate her. The court found that

this put the children at a “substantial risk of serious harm.”

In a review order entered on May 11, 2015, the court found that DHS had made

reasonable efforts to provide family services to achieve the goal of reunification and that

appellant had completed a psychological evaluation; visited regularly; and obtained housing,

income, and transportation. The court also found, however, that appellant had not

completed parenting classes or a drug-and-alcohol assessment and that she had tested positive

for numerous illegal substances during the review period.

In a permanency-planning order entered on August 6, 2015, the court stated that the

goal of the case continued to be reunification with a concurrent goal of adoption following

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termination of parental rights. The court made it clear that placement of the children “must

occur within a period that is consistent with the juveniles’ developmental needs and shall be

no later than three months from the date of this hearing [which occurred on July 21, 2015].”

The court found that appellant had not complied with the case plan and court orders,

specifically finding that she had not completed parenting classes, had not completed

parenting-without-violence classes or any counseling recommended in her psychological

evaluation, had refused outpatient treatment as recommended by her drug-and-alcohol

assessment, and had tested positive for numerous illegal substances throughout the case.

The court held a fifteen-month review hearing on October 27, 2015, and entered a

fifteen-month permanency-planning hearing order on November 23, 2015, again finding

that appellant had failed to complete parenting-without-violence classes or individual or

family counseling as recommended by her psychological evaluation, had refused outpatient

treatment as recommended by her drug-and-alcohol assessment, and had tested positive for

numerous illegal substances throughout the case. No relatives were at either of these

permanency-planning hearings, and the November order specifically stated that the children

had not been placed in a relative’s home.

At the termination hearing held on January 29, 2016, and February 22, 2016, appellant

admitted that she had continued to test positive for drugs throughout the case, had not

completed parenting-without-violence classes, had failed to complete individual counseling,

and had not completed a drug-and-alcohol treatment program. She testified that she had

lived in three residences since the case had begun. She said that first she lived in a rental

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home for about nine months and then lived with her boyfriend for about nine months. She

testified that she had not known at that time that her boyfriend had a criminal history. She

had moved out of that home a week before the termination hearing and was living with a

friend in a one-bedroom apartment. She testified that she had obtained a four-bedroom

house to rent and was “due to move in” on the day of the termination hearing. She also

testified that she did not own a vehicle but for several months had been driving a car that was

owned by her employer. The car was not large enough to transport all of her children.

Bonnie Zirbel, an adult-outpatient drug-and-alcohol counselor at Western Arkansas

Counseling and Guidance Center, testified that appellant had completed a drug-and-alcohol

assessment in June 2015 and that the recommendation had been a phase II twelve-week

outpatient program. Appellant refused the services. Appellant returned to the center in

September and tested positive for Lorazepam, marijuana, and alcohol. She returned again in

November and tested positive for marijuana and alcohol. On December 8, 2015, she tested

positive for amphetamines, methamphetamine, THC, and alcohol and then for hydrocodone

and THC on December 15, 2015. She continued to test positive for various substances in

several drug screens conducted in January 2016. The center changed her treatment

recommendation to a phase III sixteen-week outpatient program. Appellant briefly entered

that program but continued to test positive for drugs and was then recommended for

residential treatment. Ms. Zirbel testified that appellant was a no-show several times despite

having been scheduled for intake on several occasions.

Appellant’s DHS caseworker, Lisa Walton, testified that appellant did not attend the

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recommended drug treatment, did not provide proof of having attended any NA/AA

meetings, and did not attend any of the counseling recommended in her psychological

evaluation. Ms. Walton also testified that the children were adoptable and that they would

be subject to potential harm if returned to appellant due to her continuing drug issues and

failure to complete the necessary services, including parenting classes, drug treatment, and

counseling. Finally, Ms. Walton also testified that appellant did not have stable and adequate

housing or transportation sufficient to accommodate all of her children.

The attorney ad litem argued that the children were entitled to permanence and that

they could not safely return to appellant at this point. Her recommendation was termination

of appellant’s parental rights.

At the conclusion of the hearing, the court stated that it was granting the petition for

termination. The court noted that the children had been out of the home for seventeen

months and that appellant had not corrected the conditions that caused their removal. It

focused on appellant’s continued drug use throughout the case and her failure to seek or

complete any drug-treatment program despite the recommendations. The court found that

there was little likelihood that, given additional time, appellant could comply with the

recommendations of the court and complete her case plan. The court’s order terminating

appellant’s parental rights was entered on April 1, 2016, and included the court’s findings that

DHS had proved two grounds for termination by clear and convincing evidence: (1) the

children had been adjudicated dependent-neglected, had been out of the parent’s custody for

twelve months, and the parent had failed to remedy the conditions that caused their removal;

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and (2) aggravated circumstances, that being little likelihood that services to the family would

result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (ix) (Repl. 2015).

The court specifically found that DHS had made reasonable efforts to provide family services

and to finalize a permanency plan for the children but that appellant still lacked stable

housing, failed to complete drug treatment, continued to have positive drug screens

throughout the case, failed to complete the counseling recommended in her psychological

evaluation, and failed to complete or show proof of completion of parenting-without-

violence classes.

The court also found that it was in the children’s best interest to terminate appellant’s

parental rights, specifically considering adoptability and potential harm. The court found that

the juveniles were adoptable based on Ms. Walton’s testimony and the history of the case,

including the fact that the children were healthy and had no conditions that would bar

adoption. The court found that the children would be at great risk of potential harm due to

appellant’s lack of stable housing and there being little likelihood that continued services to

the family would result in successful reunification.

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). At least one statutory ground must exist,

in addition to a finding that it is in the child’s best interest to terminate parental rights; these

must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341. In making

a “best interest” determination, the trial court is required to consider two factors: (1) the

likelihood that the child will be adopted and (2) the potential harm to the child if custody

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is returned to a parent. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d

703. Adoptability is not an essential element but is rather a factor that the trial court must

consider. Id. Likewise, the potential harm to the child is a factor to be considered, but a

specific potential harm does not have to be identified or proved by clear and convincing

evidence. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, at 9, 444 S.W.3d 366,

372. Credibility determinations are left to the fact-finder. Id. at 8, 444 S.W.3d at 371.

For her first point on appeal, appellant contends that the evidence was insufficient to

support either of the court’s findings of grounds for termination. One ground is sufficient to

support the court’s termination of parental rights. King v. Ark. Dep’t of Human Servs., 2016

Ark. App. 368, at 5. We turn to the court’s finding of aggravated circumstances, specifically

that there is little likelihood that services to the family will result in successful reunification.

At the time this case was initiated, a protective-services case had been opened on the family

in St. Francis County two months earlier as a result of appellant’s drug use. Throughout this

case, appellant continued to test positive for illegal substances. Although several different

drug-treatment programs were recommended and offered, appellant refused to address her

drug issues or complete a treatment program. Appellant continued to demonstrate an inability

or unwillingness to accept rehabilitation services offered by DHS to address her drug use.

The circuit court’s finding that there was little likelihood that continued services to the

family would result in successful reunification is not clearly erroneous. Because we find no

clear error with the circuit court’s finding on this ground, it is unnecessary to address the

second ground. Sarut v. Ark. Dep’t of Human Servs., 2015 Ark. App. 76, at 9, 455 S.W.3d

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341, 347.

Next, appellant argues that the evidence was insufficient to demonstrate that

termination was in the best interest of her children. Specifically, she contends that there was

insufficient evidence for the court to consider adoptability because the only testimony

regarding this issue was from the assigned DHS case worker, who gave no factual basis for

her opinion. She also argues that there was insufficient evidence to support the trial court’s

conclusion that the children faced a substantial risk of harm if returned to her.

First, the circuit court is not required to find by clear and convincing evidence that

the children are adoptable but merely must consider the likelihood of adoption if parental

rights are terminated. Miller v. Ark. Dep’t of Human Servs., 2016 Ark. App. 239, at 7, 492

S.W.3d 113, 117. Generally, a caseworker’s testimony that a child is adoptable is sufficient

to support an adoptability finding. Abram v. Ark. Dep’t of Human Servs., 2016 Ark. App. 437,

at 4. The caseworker in this case, who knew the children, testified that the children were

adoptable. The court specifically found that the children were adoptable based on the

caseworker’s testimony, the history of the case, and the fact that the children were healthy

and had no conditions that would bar adoption. Second, the court found that the children

were at great risk of potential harm if returned to appellant given her lack of stable housing

and continued drug use.1 The potential-harm analysis is to be conducted in broad terms. Pine,

2010 Ark. App. 781, at 11, 379 S.W.3d at 709. It is the “best interest” finding that must be

1
We note also that appellant had not attended counseling or completed parenting-
without-violence classes.

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supported by clear and convincing evidence. Id. We hold that the court’s finding that it was

in the children’s best interest to terminate appellant’s parental rights was not clearly

erroneous.

Finally, appellant argues that we should reverse the termination because DHS was

considering the children’s paternal grandmother for placement, and the law allows additional

time to place the child with a relative. As authority, she cites Ark. Code Ann. § 9-28-105.

This statute provides that, in custodial placements by DHS “in foster care or adoption,”

preferential consideration shall be given to an adult relative over a nonrelated caregiver if the

relative meets all of the relevant child-protection standards and it is in the best interest of the

child to be placed with the relative. Ark. Code Ann. § 9-28-105. The record does not reflect

that appellant raised this issue to the circuit court. Therefore, this argument is not preserved

for appeal. Landis-Maynard v. Ark. Dep’t of Human Servs., 2011 Ark. App. 673, at 7, 386

S.W.3d 641, 646.

Affirmed.

WHITEAKER and HOOFMAN, JJ., agree.

Dusti Standridge, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

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

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