Rodgers v. ADHS
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Cite as 2010 Ark. App. 452
ARKANSAS COURT OF APPEALS
DIVISION
No. CA 09-606
Opinion Delivered
TONYA RODGERS
APPELLANT
MAY 26, 2010
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
[NO. JV-2008-199]
V.
HONORABLE CINDY THYER,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
AFFIRMED
M. MICHAEL KINARD, Judge
In this appeal, which is before us on the merits after being remanded to settle the
record and for rebriefing,1 appellant Tonya Rodgers challenges the sufficiency of the
evidence to support the Craighead County Circuit Court’s finding that the Department of
Human Services had proven grounds for the termination of her parental rights to her son,
C.R. We affirm.
On May 23, 2008, DHS received a report from an officer with the Jonesboro
Police Department stating that they had arrested Rodgers for being under the influence of
alcohol, drugs, or both, after she returned to a women’s shelter where she and her son had
1
See Rodgers v. Ark. Dep’t of Human Servs., 2010 Ark. App. 172 (rebriefing); Rodgers v. Ark. Dep’t
of Human Servs., 2009 Ark. App. 778 (settlement of the record).
1
Cite as 2010 Ark. App. 452
been staying. Rodgers was so incapacitated that the arresting officers could not leave her
son with her. C.R. was taken into care for having no caregiver available. On May 28,
2008, the court issued an order for emergency custody.
The court later found that probable cause existed and ordered that Rodgers
complete certain specific objectives, including that she comply with the orders of the
court; cooperate with DHS; obtain and maintain stable housing; obtain and maintain
stable employment or provide documentation showing sufficient income to meet the
needs of the family; resolve all outstanding legal issues; submit to a drug and alcohol
assessment; remain drug free and submit to random drug screens;2 maintain weekly contact
with the case worker; and complete a psychological evaluation and follow all
recommendations.
At the July 31, 2008 adjudication hearing, Rogers stipulated to a finding that C.R.
was dependent-neglected due to inadequate supervision and parental unfitness as a result of
her drug and alcohol abuse. The goal was set as reunification. In addition to the conditions
contained in the probable-cause order, Rodgers was also ordered to sign a release so that
DHS could obtain a copy of her previous psychological evaluation.
On November 6, 2008, Rodgers executed a “Consent to Termination of Parental
Rights, Waiver of Notice, and Entry of Appearance” but she subsequently withdrew that
consent on November 13, 2008.
2
Any refusal to comply was to be considered a positive drug screen.
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On November 6, 2008, the court held a review hearing and found that the case
was moving toward an appropriate permanency plan and continued the goal as
reunification. The court found that Rodgers was noncompliant with court orders and the
case plan. The Craighead County Division of Children and Family Services was relieved
of providing further transportation services to Rodgers, based on her abusive behavior
while being transported and her statement that she had the financial resources to obtain
transportation. The order also provided that Rodgers would not be considered as a
placement for C.R. until she completed an inpatient drug rehabilitation program.
On November 26, 2008, DHS filed a motion to terminate reunification services to
Rodgers, alleging that there was little likelihood that services to the family would result in
successful reunification for Rodgers due to her noncompliance with the case plan and
court orders. Also on November 26, 2008, DHS filed its petition to terminate Rodgers’s
parental rights. The petition asserted two grounds for termination, including that
subsequent to the filing of the original petition for dependency-neglect, other factors or
issues arose which demonstrated that return of the juvenile to the custody of Rodgers was
contrary to the juvenile’s health, safety, or welfare and that despite the offer of appropriate
family services, Rodgers had manifested the incapacity or indifference to remedy the
subsequent issues or factors or rehabilitate Rodgers’s circumstances which prevented
return of C.R. to Rodgers’s custody. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). The
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petition also asserted that Rodgers had subjected the juvenile to aggravated circumstances,
in that there was little likelihood of successful reunification.
On February 17, 2009, the termination of parental rights hearing began but was
continued because Rodgers was not present. The court allowed DHS to commence the
hearing by offering its exhibits. When the case resumed on March 2, 2009, Rodgers was
again not present and counsel again moved for a continuance. The motion was denied.
Valerie Duff, the DHS case worker assigned to the case, was the sole witness at the
termination hearing. She testified as to the tasks that Rodgers was ordered to complete in
order to regain custody of C.R. Duff also testified that, in her opinion, Rodgers had failed
to comply with the orders of the court and the case plan in that she did not complete a
psychological evaluation. Rodgers had also entered an inpatient treatment program but
was discharged because she threatened to commit suicide and made threats against other
patients. Rodgers was asked to leave a second facility because she was hostile and making
threats. According to Duff, Rodgers did not submit to a drug and alcohol assessment, did
not cooperate with the department, did not have stable housing, and was not employed.
Rodgers was drawing SSI benefits. Duff said that the department’s plan for C.R. was
adoption and that his foster family was interested in adopting him. Duff stated that, in her
opinion, C.R. would be harmed if he were returned to Rodgers and that termination was
in C.R.’s best interest. Duff also said that Rodgers appeared indifferent about rectifying
the situation that led to C.R.’s removal and gave as an example Rodgers’s comments, after
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a November 2008 hearing, saying that she would sign her rights away and that she did not
need C.R. in her life because she could have more children later.
At the close of DHS’s case and at the close of all of the evidence, Rodgers’s counsel
moved for a dismissal of the petition, arguing that there was insufficient evidence. The
court denied the motions.
The court ruled from the bench and granted the petition to terminate Rodgers’s
parental rights. The court found that DHS had provided clear and convincing evidence
that it was in C.R.’s best interest to have Rodgers’s parental rights terminated. The court
found that Rodgers was not compliant with the court’s orders or the case plan. The court
noted that it considered Rodgers’s statement concerning her lack of desire to care for
C.R. and the fact that she first consented to the termination of her parental rights, but
then withdrew that consent. The court further found that DHS had proven the two
grounds for termination stated in its petition. This appeal followed.
We review termination of parental rights cases de novo. Yarborough v. Ark. Dep’t of
Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). The grounds for termination of
parental rights must be proven by clear and convincing evidence. Id. When the burden of
proving a disputed fact is by clear and convincing evidence, the question on appeal is
whether the circuit court’s finding that the disputed fact was proven by clear and
convincing evidence is clearly erroneous, giving due regard to the opportunity of the
circuit court to judge the credibility of the witnesses. Id. A finding is clearly erroneous
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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. A heavy
burden is placed on the party seeking termination. Jones v. Ark. Dep’t of Human Servs., 361
Ark. 164, 205 S.W.3d 778 (2005).
The termination of parental rights is a two-step process that requires the circuit
court to find that the parent is unfit and that termination is in the best interest of the child.
J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). The 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) (Repl. 2008). Parental rights will not be enforced to the
detriment of the health and well-being of the child. Jones, supra.
We hold that the circuit court did not err in terminating Rodgers’s parental rights
based on the “other factors” ground found in Ark. Code Ann. § 9-27-341(b)(3)(B)(vii).
That ground provides as follows:
That other factors or issues arose subsequent to the filing of the original
petition for dependency-neglect that demonstrate that return of the juvenile to 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 return of the juvenile to the custody of the
parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl. 2008). Our review of the evidence
convinces us that this ground warrants termination of Rodgers’s parental rights. The
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evidence also supports a finding that DHS offered appropriate services to Rodgers, but that
she failed to take advantage of those services. Indeed, it was Rodgers’s own actions that led
to that failure. Rodgers failed to complete two in-patient substance abuse programs
because she made threats to the patients and staff at those facilities. She was also verbally
abusive to DHS workers providing her with transportation services, resulting in the
termination of those services. Moreover, her indifference in remedying the problems so
that C.R. could be returned to her custody was indicated by her statement that she could
always have more children at a later time. We need not discuss Rodgers’s arguments as to
the other ground for termination the circuit court found had been established because
only one ground is needed. Lee v. Ark. Dep’t of Human Servs., 102 Ark. App. 337, 285
S.W.3d 277 (2008); Hall v. Ark. Dep’t of Human Servs., 101 Ark. App. 417, 278 S.W.3d
609 (2008).
The circuit court found that termination was in the best interest of the child. Here,
there was undisputed testimony that C.R. was adoptable, supporting the trial court’s
finding. This indicated that DHS had a proper permanency plan for C.R. See M.T. v. Ark.
Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Rodgers’s indifference
to having C.R. in her life and her failure to complete the rehabilitation programs all show
potential harm to C.R. if he were returned to Rodgers’s custody. See Smith v. Ark. Dep’t
of Human Servs., 100 Ark. App. 74, 264 S.W.3d 559 (2007). Therefore, the circuit court’s
best-interest determination is not clearly erroneous.
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Affirmed.
BAKER and BROWN, JJ., agree.
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