Taylor v. Arkansas Department of Human Services

Cite as 2016 Ark. App. 453

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-538

OPINION DELIVERED OCTOBER 5, 2016
JESSICA TAYLOR
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT,
[NO. 18JV-14-59]
V.
HONORABLE RALPH WILSON, JR.,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND MINOR AFFIRMED IN PART; REVERSED
CHILDREN AND REMANDED IN PART;
APPELLEES DISMISSED IN PART

ROBERT J. GLADWIN, Chief Judge

Appellant Jessica Taylor appeals the March 28, 2016 order of the Crittenden County

Circuit Court terminating her parental rights to her minor children, A.T.1 and A.T.2, as

well as the attempted adjudication of her infant daughter, A.T.2, as dependent-neglected

that occurred at the beginning of the November 3, 2015 hearing held on the termination-

of-parental-rights (TPR) petition filed by appellee Arkansas Department of Human Services

(ADHS). As an initial matter, we dismiss the appeal of the adjudication of A.T.2 as

dependent-neglected. The TPR order appealed from was entered on March 28, 2016, and

appellant filed a timely notice of appeal on March 31, 2016, that specifically indicated the

appeal of the March 28, 2016 order with a reference to a hearing regarding the adjudication

and the TPR order. The TPR order, however, does not reference the adjudication of

A.T.2, and a nunc pro tunc adjudication order as to A.T.2 was not filed until July 6, 2016
Cite as 2016 Ark. App. 453

(effective as of the November 3, 2015 hearing date). Because the record was lodged with

our court on June 9, 2016, the trial court no longer had jurisdiction to enter the nunc pro

tunc order. It was filed with our court, along with a stipulation from the parties to

supplement the record, on July 18, 2016, but that does not cure the fact that the order

attempting to adjudicate A.T.2 dependent-neglected is a nullity.

With respect to the TPR order, we affirm as to A.T.1 and reverse and remand with

respect to A.T.2. We will address the supporting grounds for termination of appellant’s

rights as to the minor children individually.

I. Facts

On March 18, 2014, ADHS received a hotline referral from Crittenden County

Regional Hospital about appellant, and ADHS family service worker Deidra Reed

investigated. The nurse reported concerns about appellant’s “current living situation and her

mental capability.” Appellant—the mother of then one-month-old A.T.1—reported that,

about a month before, she had returned to town. She initially lived with her father, but he

did not have working utilities, so she moved into the local women’s shelter. Appellant

reported that her son, S.B., was in foster care in Oklahoma because she had “signed her

rights away . . .” because she could not afford to care for him. According to the investigation,

appellant appeared to be “low functioning” and had reported that she had been prescribed

PTSD and anxiety medications. Given the circumstances, ADHS assumed immediate

emergency custody of A.T.1.

Three months later, the trial court conducted an adjudication hearing. The trial court

found that, given appellant’s failure to provide adequate housing, she had neglected A.T.1.
2
Cite as 2016 Ark. App. 453

A.T.1 was adjudicated dependent-neglected on June 10, 2014, and the trial court ordered

A.T.1 to remain in ADHS’s custody. Reunification and adoption were made concurrent

case goals. Appellant was ordered to do certain things to achieve reunification: (1) complete

a psychological evaluation and follow all recommendations; (2) obtain safe, stable housing,

including functional utilities; (3) obtain stable employment or other means of income; (4)

complete intensive parenting classes; and (5) submit to random drug screens.

As of the September 2014 review hearing, appellant was in substantial compliance

with the trial court’s orders, having completed parenting classes and having submitted to a

psychological evaluation. The trial court maintained a goal of reunification and ordered

A.T.1 to remain in ADHS’s custody. The case was not reviewed again until February 2015;

however, the trial court entered an interim order on December 16, 2014, that ordered

ADHS to provide appellant with housing-assistance services.

On June 1, 2015, appellant gave birth to A.T.2 and was allowed to leave the hospital

with the baby. However, upon learning that appellant had given birth, ADHS appeared at

her residence—she had resumed living with her father in his camper—and without entering

or verifying the conditions of the home, removed A.T.2 from appellant’s custody based on

the following:

This Worker and FSW Fleming went to the address with [local police] assisting.
Upon arrival This Worker and FSW Fleming informed [appellant’s] father that
[ADHS] was going to have to take custody of [A.T.2] and he and [appellant] refused
and [appellant’s father] locked [appellant and A.T.2] in the camper and police then
instructed him to open the door. [Appellant] then began to yell outside of the camper
cursing and making racial slurs to the Workers and stated that she would put a bullet
through her head. At this time this Worker and FSW Fleming began to back away
from the camper and informed Law Enforcement of what [appellant] had stated and
they then backed off as well but were later able to talk [appellant] out of the camper.
3
Cite as 2016 Ark. App. 453

It was determined that since A.T.1 had been in foster care, appellant’s circumstances had

not improved:

The camper does not have any working utilities. The living situation is not suitable
to care for a child at any given time. The mental state of [appellant] appears to be
unstable and there is no financial means to provide for [A.T.2].

ADHS assumed immediate emergency custody of A.T.2 and filed a petition for emergency

custody and dependency-neglect on June 9, 2015, stating that A.T.2 had been removed

because the home was inadequate and because appellant had an open case on A.T.1.

On June 18, 2015, just seventeen days after A.T.2’s birth, ADHS filed a TPR petition

alleging that TPR was in both children’s best interest pursuant to two statutory grounds set

out in Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) and (vii), with only the

latter ground being alleged in regard to A.T.2. The trial court set a termination hearing on

the TPR petition and scheduled A.T.2’s adjudication hearing for the same date.

At the hearing on November 3, 2015, the trial court first heard evidence pertaining

to A.T.2’s adjudication and ordered her adjudicated dependent-neglected based on

inadequate housing and because “[A.T.1] is in [A]DHS legal custody . . . .” The trial court

then moved directly to the TPR hearing on both children, and at the conclusion of that

hearing, terminated appellant’s parental rights to both A.T.1 and A.T.2.

The TPR order was entered on March 28, 2016, and appellant filed a timely notice

of appeal on March 31, 2016, that specifically indicated the appeal of the order of the trial

court entered on March 28, 2016, with reference to a hearing regarding adjudication and

TPR. The record was lodged with our court on June 9, 2016, and a nunc pro tunc

4
Cite as 2016 Ark. App. 453

adjudication order as to A.T.2 was not filed until July 6, 2016, effective as of the November

3, 2015 hearing date. It was filed with our court, along with a stipulation from the parties

to supplement the record, on July 18, 2016.

II. Standard of Review

The standard of review in termination-of-parental-rights appeals is de novo, but we

reverse a trial court’s decision to terminate parental rights only when it is clearly erroneous.

Hernandez v. Ark. Dep’t of Human Servs., 2016 Ark. App. 250, 492 S.W.3d 119. A finding

is clearly erroneous when, although there is evidence to support it, the reviewing court on

the entire evidence is left with a distinct and firm conviction that a mistake was made. Id.

Credibility determinations are left to the fact-finder, here, the trial court. Schaible v. Ark.

Dep’t of Human Servs., 2014 Ark. App. 541, 444 S.W.3d 366.

III. Applicable Law

The right of a natural parent to the custody of his or her child is “one of the highest

of natural rights.” Mayberry v. Flowers, 347 Ark. 476, 484, 65 S.W.3d 418, 424 (2002).

Termination of parental rights is an extreme remedy and is in derogation of the natural

rights of the parents. Helvey v. Ark. Dep’t of Human Servs., 2016 Ark. App. 418.

The purpose of terminating a parent’s rights to his or her child is to provide

permanency in that child’s life when return to the family home “cannot be accomplished in

a reasonable period of time as viewed from the [child’s] perspective.” Ark. Code Ann. § 9-

27-341(a)(3). A trial court may order termination of parental rights if it finds there is an

“appropriate permanency placement plan” for the child, see section 9-27-341(b)(1)(A), and

further finds by clear and convincing evidence that termination is in the best interest of the
5
Cite as 2016 Ark. App. 453

child, taking into consideration the likelihood of adoption and the potential harm to the

health and safety of the child that would be caused by returning him or her to the custody

of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Finally, there must be clear and

convincing evidence to support one or more of the nine grounds for termination listed in

Arkansas Code Annotated section 9-27-341(b)(3)(B).

IV. Discussion

A. Best Interest - Adoptability

Pursuant to Arkansas Code Annotated § 9-27-341(b)(3)(A)(i)–(ii), in considering

“best interest,” the trial court must consider two factors: (1) the likelihood of the children’s

adoption as a permanency plan and (2) potential harm caused by returning the children to

the custody of the parent. Although the evidentiary threshold is extremely low regarding

the adoptability requirement based on recent interpretive case law, this court does require

some evidence regarding adoptability. See Lively v. Ark. Dep’t of Human Servs., 2015 Ark.

App. 131, 456 S.W.3d 383.

Here, Demetria Willis, the ADHS caseworker, testified that the foster family who

had placement of both A.T.1 and A.T.2 at the time of the hearing was “interested in

adopting,” but appellant maintains that this mere manifestation of “interest” does not

translate into action and does not answer the statutory question of whether the children are

likely to be adopted if TPR occurs. She argues that the expression of “interest” does not

translate into the finding made by the trial court that there is a “good likelihood that the

children will be adopted by the current foster parents . . . based on the testimony of [County

Supervisor Bessie Hatchett], who said that the foster parents wish to adopt both girls.”
6
Cite as 2016 Ark. App. 453

Appellant notes that Ms. Hatchett never offered such testimony; the only testimony of the

foster parents’ “interest” was offered by Ms. Willis and that Ms. Willis never stated that the

foster parents “wish” to adopt both girls. Appellant argues that it was incumbent on ADHS

to put on evidence of the likelihood of the children’s adoption and not simply whether a

single family had a mere interest. Because ADHS did not put on any such evidence, appellant

claims that it was error for the trial court to find that A.T.1 and A.T.2 were likely to be

adopted.

We disagree, noting that the issue is whether there was evidence that addressed the

likelihood of adoption. If there was, then the statutory requirement is satisfied. See Thompson

v. Ark. Dep’t of Human Servs., 2012 Ark. App. 124. We hold that Ms. Willis’s opinion that,

if appellant’s parental rights were terminated, A.T.1 and A.T.2 would be adoptable,

addressed the likelihood-of-adoption issue. She specifically stated that “[t]he foster family is

interested in adopting.” ADHS maintains, and we agree, that this testimony provides

sufficient evidence to support the trial court’s adoptability finding. See Cobbs v. Ark. Dep’t

of Human Servs., 87 Ark. App. 188, 189 S.W.3d 487 (2004) (holding that evidence, which

consisted primarily of the caseworker’s testimony that juveniles were adoptable, was

sufficient to support adoptability finding).

B. Best Interest - Potential Harm

The TPR order states that the trial court found the testimony of Ms. Hatchett to be

credible and that appellant’s lack of adequate housing with working utilities, lack of

employment or income, mental-health issues and instability, and failure to take her

prescription medication as prescribed demonstrate how both A.T.1 and A.T.2 would be at
7
Cite as 2016 Ark. App. 453

risk of potential harm if returned to her. Appellant does not argue that the trial court erred

in making this finding, and this court will not consider arguments without convincing

argument or citations to authority. Wheatley v. Dixie Mall 2003, LLC, 2016 Ark. App. 94,

482 S.W.3d 760.

C. Statutory Grounds for TPR

Section 9-27-341(b)(3)(B) provides nine different grounds that warrant termination,

but to terminate an individual’s parental rights only one ground is needed. Albright v. Ark.

Dep’t of Human Servs., 97 Ark. App. 277, 248 S.W.3d 498 (2007). And on de novo review,

the court can affirm the trial court’s termination decision on any ground that was alleged in

the petition and proved. Fenstermacher v. Ark. Dep’t of Human Servs., 2013 Ark. App. 88,

426 S.W.3d 483.

1. Twelve-month; failure to remedy

ADHS pled, and the trial court based TPR in part on this ground, in regard only to

A.T.1. Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a), allows for termination if

termination is in the child’s best interest, and the child has

been adjudicated by the court to be dependent-neglected and has continued to be
out of the custody of the parent for twelve (12) months and, despite a meaningful
effort by the department to rehabilitate the parent and correct the conditions that
caused removal, those conditions have not been remedied by the parent.

There are three conditions to this statute: (1) that the child has been adjudicated dependent-

neglected; (2) that the child has continued out of the custody of the parent for twelve

months; and (3) the parent has failed to remedy the conditions causing removal despite a

meaningful effort by ADHS to correct those conditions. Appellant concedes the first two

8
Cite as 2016 Ark. App. 453

conditions, but she claims that ADHS’s efforts to rehabilitate in regard to the issues on which

it and the trial court relied as a basis for TPR—inadequate housing and mental instability—

were not “meaningful.”

We hold that appellant’s meaningful-efforts challenge must fail. Neither the abstract

nor the addendum shows that, at any time in this case, the trial court made a no-reasonable-

efforts finding at any time in this case and appellant did not appeal any of the trial court’s

reasonable-efforts findings. She neither challenged the appropriateness of any ADHS-offered

reunification service nor argued that there were particular reunification services that ADHS

should provide. We hold that these failures prevent this court from considering appellant’s

meaningful-efforts argument with respect to the termination of her parental rights to A.T.1.

See Emmons v. Ark. Dep’t of Human Servs., 2013 Ark. App. 541.

2. Other subsequent-factors or issues

ADHS also pled, and the trial court based TPR in part, with regard to both A.T.1

and A.T.2, on the ground in Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a),

(c), which allows for TPR if termination is in the children’s best interest, and

(vii)(a) [t]hat other factors or 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 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 or factors or rehabilitate
the parent’s circumstances that prevent the placement of the juvenile in the custody
of the parent.
(c) For purposes of this subdivision (b)(3)(B)(vii), the inability or incapacity to remedy
or rehabilitate includes, but is not limited to, mental illness, emotional illness, or
mental deficiencies.

9
Cite as 2016 Ark. App. 453

Appellant argues that the trial court’s reliance on this ground in regard to both A.T.1

and A.T.2 was in error because the “other factors or issues” cited by ADHS in its TPR

petition and found by the trial court in its TPR order were not factors or issues that arose

subsequent to the filing of the dependency-neglect petition. Rather, they were factors or

issues that caused the initial removal of both A.T.1 and A.T.2.

Appellant maintains that, by statutory definition, it was a temporal impossibility for

the “other factors or issues” ground to have been triggered in this case. See Brumley v. Ark.

Dep’t of Human Servs., 2015 Ark. App. 90, 455 S.W.3d 347 (aff’d on other grounds, in

which two dissenting judges, Harrison and Whiteaker, wrote separately to analyze how this

portion of the statute plainly applies only when the facts that allegedly support a petition to

terminate arise after ADHS has filed the petition for dependency-neglect). Appellant argues

that, here, A.T.1 and A.T.2 were initially removed because appellant was living in what

ADHS deemed to be an environmentally deficient camper at the time of each child’s birth,

and because ADHS did not believe she had the mental capability to safely parent the

children. In other words, she maintains that these issues were the initial cause of removal

for both A.T.1 and A.T.2 rather than factors arising subsequent to ADHS filing the

petition(s) for dependency-neglect pursuant to section 9-27-341(b)(3)(B)(vii).

ADHS stated in the affidavit attached to the petition for emergency custody and

dependency-neglect that A.T.1 had been removed because ADHS needed to ensure her

health and safety needs. The health and safety concerns listed in the affidavit were appellant’s

inadequate housing based on her living with her father in the camper and her mental

instability.
10
Cite as 2016 Ark. App. 453

The affidavit attached to ADHS’s petition for emergency custody and dependency-

neglect stated that A.T.2 was removed because of appellant’s inadequate housing, her return

to living in the camper with her father, and her mental instability. As the investigator

explained in the affidavit, ADHS informed appellant “upon arrival” that it would be taking

A.T.2 into custody because of her already-open case. The affidavit further detailed that

appellant was “unstable” and had no financial means to provide for the child—that ADHS

had already provided her with parenting classes, mental-health counseling, visitation, and

referrals for housing, and that A.T.2 was “in danger” due to “environmental neglect” and

“the history of this family . . . .”

Appellant maintains that these factors or issues that caused the initial removal of the

children is further demonstrated by testimony provided at the TPR hearing by ADHS

County Supervisor Hatchett. Ms. Hatchett testified that ADHS took A.T.1 into custody

because of appellant’s inadequate housing and mental-health issues and that A.T.2 was taken

into custody because of continued inadequate housing and continued mental-health

concerns. These factors and issues were identical factors and issues relied on by the trial court

to support this “subsequent factors” ground in regard to both A.T.1 and A.T.2.

With regard to A.T.1, we disagree and hold that there was evidence presented to

support the trial court’s finding that factors that did arise subsequent to the filings of the

dependency-neglect petition(s)—specifically as to the extent of appellant’s mental health

issues. When A.T.2’s dependency-neglect petition was filed, appellant’s mental-health had

worsened since the time A.T.1’s dependency-neglect petition was filed. In 2014, appellant’s

mental-health diagnosis was depressive disorder (Axis I), but no personality disorder (Axis
11
Cite as 2016 Ark. App. 453

II). However, according to testimony from Emily Unglesby, a licensed clinical social

worker, appellant’s mental health had deteriorated by the time of the hearing on the TPR

petition, causing her diagnosis to change to “seriously mentally ill.” This diagnosis—SMI—

includes “major depression with psychotic features.” We also find no merit in appellant’s

argument regarding appropriate family services to rehabilitate appellant’s circumstances,

especially with respect to the inadequate-housing issue. It is undisputed that A.T.1 has had

special needs since this case began, including the necessity of using a feeding tube. The same

conditions, however, that warranted A.T.1’s initial entry into foster care—appellant’s failure

to provide adequate housing to provide for those needs—still existed when A.T.2 entered

foster care. Yet throughout the pendency of A.T.1’s case, appellant never challenged the

appropriateness of any ADHS-offered reunification services. She never argued that there

were particular reunification services that ADHS should provide. Accordingly, we find no

error in the trial court’s finding with respect to this ground as related to A.T.1.

The same cannot be said with respect to A.T.2. Appellant gave birth to A.T.2 on

June 1, 2015, and by June 9, 2015, ADHS had removed A.T.2 from her custody and filed

a petition for emergency custody and dependency-neglect stating that A.T.2 had been

removed because the home was inadequate and because appellant had an open case on

A.T.1. On June 18, 2015, only seventeen days after A.T.2’s birth, ADHS filed the TPR

petition, alleging that TPR was in A.T.2’s best interest, specifically pursuant to the

“subsequent factors” statutory ground set out in section 9-27-341(b)(3)(B)(vii)(a).

We hold that the trial court’s decision to terminate appellant’s parental rights as to

A.T.2 based on this ground was clearly erroneous. There is simply not enough supporting
12
Cite as 2016 Ark. App. 453

evidence to indicate that such other factors or issues in the mere nine days subsequent to

the filing of the petition for dependency-neglect demonstrated that placement of A.T.2 in

appellant’s custody was contrary to the child’s health, safety, or welfare. The evidence

supports that the circumstances had not changed. Moreover, the evidence is insufficient to

support a finding that appropriate family services were offered during that time period to

help appellant remedy the initial circumstances that led to A.T.2’s removal. Accordingly,

there is no need to analyze her level of incapacity or indifference because no such offer was

made.

ADHS must meet the statutory requirements for each child involved in a particular

case. Here, it failed to do so with respect to A.T.2, in effect, just latching on to its evidence

and analysis with respect to A.T.1. More effort is required from ADHS under its statutory

authority, and more analysis is required from the trial court in its determination of each

child’s circumstances. Accordingly, we affirm the termination of appellant’s rights as to

A.T.1 but reverse and remand the trial court’s findings with respect to A.T.2.

Affirmed in part; reversed and remanded in part; dismissed in part.

VIRDEN and GLOVER, JJ., agree.

Leah Lanford, Ark. Pub. Defender Comm’n, for appellant.

Andrew Firth, County Legal Operations, for appellee.

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