Garner v. Arkansas Department of Human Services

Cite as 2017 Ark. App. 563

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-17-524

Opinion Delivered: October 25, 2017
ASHLEY GARNER (CONRAD)
APPELLANT APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. 26JV-16-25]

ARKANSAS DEPARTMENT OF HUMAN HONORABLE LYNN WILLIAMS,
SERVICES AND MINOR CHILD JUDGE
APPELLEES
AFFIRMED

MIKE MURPHY, Judge

Appellant Ashley Garner (Conrad) 1 appeals the March 22, 2017 order of the Garland

County Circuit Court terminating her parental rights to her minor child, C.L. She argues

that the circuit court erred in granting the termination-of-parental-rights petition because

appellee Arkansas Department of Human Services (DHS) failed to present sufficient

evidence of the grounds for termination and that termination was in C.L.’s best interest. 2

We affirm.

1
Garner recently changed her last name to “Conrad” and signed the notice of appeal
as “Conrad,” but because she was referred to as “Garner” throughout the case, we will
continue to refer to her as “Garner” here.

The parental rights of C.L.’s father were also terminated as part of the order, but he
2

does not appeal.
Cite as 2017 Ark. App. 563

On January 21, 2016, DHS filed a petition for emergency custody and dependency-

neglect, alleging that Garner’s only child, C.L. (DOB 08/23/2012), was dependent-

neglected as a result of “neglect and parental unfitness, specifically parental drug use, refusing

access to the child, inadequate shelter and medical neglect.” The affidavit attached to the

petition alleged that on January 17, 2016, police responded to a call about Garner, who

allegedly had been distributing methamphetamines with her child present. The affidavit also

noted Garner’s history with DHS; she had previously maltreated C.L., which resulted in a

dependency-neglect case that opened in April 2014 and closed in September 2015. An

emergency order was entered on January 21, 2016.

On March 23, 2016, the circuit court adjudicated C.L. dependent-neglected based

on clear and convincing evidence that C.L. was subjected to inadequate supervision due to

Garner’s illegal drug use and environmental neglect. Garner was ordered to comply with

the case plan; view “The Clock is Ticking” video; cooperate and maintain contact with

DHS; demonstrate improved parenting; submit to random drug screens; remain clean and

sober; complete parenting classes; participate in individual counseling; obtain and maintain

stable employment and housing; submit to a psychological evaluation and a drug-and-

alcohol assessment and follow all recommendations; and attend AA/NA meetings a

minimum of three times a week and provide proof of attendance to DHS.

A review hearing was held on July 6, 2016. The order provided that returning

custody of C.L. to Garner remained contrary to the child’s welfare; DHS had made

reasonable efforts to provide family services; Garner had minimally complied with the case

plan; and visitation should remain supervised.

2
Cite as 2017 Ark. App. 563

After two continuances at Garner’s request, the court conducted a permanency-

planning hearing on January 11, 2017. The order provided that despite DHS’s efforts,

Garner had only partially complied with her case plan and had not corrected her drug

addiction. The order noted that Garner had not remained clean and sober; had not

submitted to counseling; had not followed all the recommendations based on her drug-and

-alcohol assessment or psychological evaluation; and she had not submitted to inpatient-

drug treatment. The court found that “the mother’s unwillingness to go to treatment

demonstrates that she places her own self and desires ahead of her daughter’s.”

On February 8, 2017, DHS filed a petition for termination of Garner’s parental rights

to C.L. After the termination hearing, the circuit court entered its order on March 22, 2017,

terminating Garner’s parental rights. At the hearing, testimony revealed that while Garner

did maintain stable housing and employment and attend all the hearings and weekly

visitation almost regularly, she did not remain clean and sober; provide proof of attending

AA or NA as instructed; attend an inpatient-treatment program; complete the hands-on

parenting-instruction course; submit to individual counseling; or provide proof that she had

watched “The Clock is Ticking” video. Throughout the case, Garner did stay in regular

contact with her caseworker and did submit to a psychological evaluation, but she did not

follow through with the recommendations.

Testimony further established that Garner had not sufficiently addressed her

substance-abuse issue. She was drug free approximately four months, but the psychological

evaluation recommended that she have six months of sobriety and six months of stability on

psychiatric medication.

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Cite as 2017 Ark. App. 563

The court found that DHS had proved by clear and convincing evidence that

termination was in C.L.’s best interest and was supported by the failure-to-remedy and

subsequent-factors grounds. At the close of the hearing, the court orally found,

The last four months [Ashley] has been drug free and I applaud [her] on that.
However, I disagree that she’s dealing with her drug problem. . . . The disease is not
being treated and that is a real concern that I have. . . . [C.L.] can’t afford another
relapse, not Ashley can’t afford another relapse. . . . Ashley has had plenty of time—
two different proceedings, two different cases—to prove to this court that she is
going to be stable for this child’s life and take care of her properly and it just hasn’t
happened.

This timely appeal followed.

We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep’t of

Human Servs., 2015 Ark. App. 131, at 4–5, 456 S.W.3d 383, 386. It is DHS’s burden to

prove by clear and convincing evidence that it is in a child’s best interest to terminate

parental rights as well as the existence of at least one statutory ground for termination. Id.

On appeal, the inquiry is whether the circuit court’s finding that the 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 appellate court, on the entire

evidence, is left with a definite and firm conviction that a mistake has been made. Id. We

give a high degree of deference to the circuit court, as it is in a far superior position to

observe the parties before it and judge the credibility of the witnesses. Id.

The termination-of-parental-rights analysis is twofold; it requires the circuit court to

find that the parent is unfit and that termination is in the best interest of the child. The first

step requires proof of one or more of the nine enumerated statutory grounds for termination.

Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2015). The best-interest determination must

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consider the likelihood that the children will be adopted and the potential harm caused by

returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The

court, however, does not have to determine that every factor considered be established by

clear and convincing evidence. Spencer v. Ark. Dep’t of Human Servs., 2013 Ark. App. 96, at

5–6, 426 S.W.3d 494, 498. Instead, after considering all the factors, the evidence must be

clear and convincing that the termination is in the best interest of the child. Id.

On appeal, Garner first argues that the circuit court’s best-interest finding must be

reversed. In determining the best interest of the child, the circuit court should consider

factors such as the likelihood of adoption and the potential harm to the health and safety of

a child if subjected to continuing contact with the parent. Ark. Code Ann. § 9-27-

341(b)(3)(A)(i), (ii). Parental rights will not be enforced to the detriment of the health and

well-being of the child. Christian-Holderfield v. Ark. Dep’t of Human Servs., 2011 Ark. App.

534, at 7–8, 378 S.W.3d 916, 920. The court is not required to find that actual harm would

result or to affirmatively identify a potential harm. Jones v. Ark. Dep’t of Human Servs., 2017

Ark. App. 125, at 11–12, 515 S.W.3d 151, 158. Furthermore, the supreme court has

directed that the potential-harm analysis be conducted in broad terms. Id.

Garner does not challenge the circuit court’s adoptability finding. She does, however,

challenge the circuit court’s potential-harm finding. Garner admits to only partial

compliance with the case plan, but she argues that she has made sufficient progress to warrant

additional time. She asserts that a child’s need for permanency should not obliterate the

ability of a family to reunify where a parent has never physically abused or harmed her child,

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Cite as 2017 Ark. App. 563

has attempted to comply, and has finally been able to obtain four months of sobriety. We

disagree.

This is Garner’s second attempt at maintaining sobriety, as C.L. had previously been

adjudicated dependent-neglected because of Garner’s drug use. After C.L. had been

returned to her custody in that case, she was again removed just six months later because of

Garner’s continued drug use. Throughout this case, Garner continually violated court orders

by not complying with the case plan, she was still subject to supervised visitation, and she

continued to abuse drugs ten months into this case. We have held that past behavior is

correctly viewed as a predictor of potential harm that may likely result if a child is returned

to the parent’s custody. Jones, 2017 Ark. App. 125, at 12, 515 S.W.3d at 158. Moreover,

living in continued uncertainty is, in itself, potentially harmful to children. Id. Testimony

revealed that C.L. had been in foster care more than half her life.

As noted above, 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. McNeer v. Ark. Dep’t of Human Servs., 2017 Ark. App. 512, __ S.W.3d __. We

therefore conclude that there was ample evidence before the circuit court to support it’s

finding on the potential-harm factor. Id.

Garner next argues that the circuit court clearly erred in finding that DHS proved

grounds to support the termination decision. Specifically, she asserts that it was undisputed

that she and her child are bonded, that she had achieved sobriety, and that DHS had failed

to offer services to address any environmental issue.

6
Cite as 2017 Ark. App. 563

The failure-to-remedy ground found at section 9-27-341(b)(3)(B)(i)(a) allows for

termination of parental rights if 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 months, and

despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that

caused removal, those conditions have not been remedied by the parent. Jones, 2017 Ark.

App. 125, at 7, 515 S.W.3d at 156. Garner does not dispute that C.L. was adjudicated

dependent-neglected or that C.L. was out of her custody for more than twelve months, so

we need only discuss the causes for removal.

C.L. was removed from Garner’s custody due to Garner’s drug use—she tested

positive for methamphetamines, ecstasy, and oxycodone—and due to environmental

concerns within Garner’s home, such as exposed wiring, broken windows covered with

cardboard, and plastic covering the top of the camper the family lived in. Garner first argues

that there was no evidence that she continued to use drugs as she had been sober for multiple

months and that, while she did not complete the required drug treatment, she had drug

treatment in a prior case. 3 We disagree.

In Schaible v. Arkansas Department of Human Services, we affirmed the termination of a

mother’s parental rights even though she remained “clean” for the entire seventeen-month

period the case was open. 2014 Ark. App. 541, at 10, 444 S.W.3d 366, 372. While the

court did find the mother to be in substantial compliance and commended her for remaining

drug free, it did not find that she was in full compliance with the case plan. Id. The court

3
Garner notes that the allegation that she was selling drugs in her home was never
established as true and thus not a cause of the removal. However, she tested positive for
drugs at the time of removal, which is a cause for purposes of this analysis.

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Cite as 2017 Ark. App. 563

noted it had great concern that she was not attending the required NA/AA meetings and

that she had not completed a drug-treatment program. Id.

Similarly, Garner’s efforts do not make the court’s termination decision erroneous.

Cindy Stroud, the DHS county supervisor, testified at the termination hearing that ten

months into the case Garner was still testing positive for methamphetamine. DHS continued

to offer services to Garner; yet it was not until the last few months of the case that Garner

began to somewhat comply with the case plan and achieve sobriety. The circuit court

applauded Garner’s efforts in remaining drug free for four months, but it found that Garner

was not actually dealing with her drug problem, as evidenced by the fact that she refused to

seek treatment and had failed to follow the case plan. The circuit court explained that Garner

has a drug addiction and she has not been treated for that disease.

Ample evidence exists to support the trial court’s conclusion that Garner failed to

remedy the situation that led to the removal of her child. Because proof of only one statutory

ground is sufficient to terminate parental rights, no further discussion is necessary. Jung v.

Ark. Dep’t of Human Servs., 2014 Ark. App. 523, at 6–7, 443 S.W.3d 555, 559.

Affirmed.

GRUBER, C.J., and HIXSON, J., agree.

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

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