Arkansas Department of Human Services v. Vickie Mays

ca03-901

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

 

DIVISION IV

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLANT

V.

VICKIE MAYS

APPELLEE

CA03-901

May 19, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. J-94-173]

HON. MARK HEWETT,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

The Arkansas Department of Human Services, hereinafter "DHS," appeals from an order of the Sebastian County Circuit Court denying its petition to terminate the parental rights of Vickie Mays. On appeal, it argues: 1) where the trial court failed to give preference to adoption as a permanency plan, it was clearly erroneous when it denied the petition for termination of parental rights; 2) there was clear and convincing evidence that K.M. could be adopted; 3) where the trial court failed to consider the benefits of a subsidized adoption, the trial court was clearly erroneous when it found adoption was not in the child's best interest because there was a possibility that his medical needs may not be provided at a future date; and 4) where public policy and fundamental fairness demand that children in similar situations should not receive disparate treatment as a result of their class status, and where other foster children may be adopted if they are not disabled, the trial court's denial of the termination petition was clearly erroneous. We affirm.

K.M. was born on December 14, 1993, with cerebral palsy. His physical challenges are extensive: in addition to being a spastic quadriplegic, he has a tracheotomy which requires suctioning; a seizure disorder which requires close monitoring by an individual trained and capable of performing CPR through his tracheotomy; bladder and bowel incontinence; asthma; mental retardation; and impaired vision. He requires fifteen different medications a day, and he must be fed with a feeding tube. His mother, Vickie Mays, was not able to effectively care for him. A Family In Need of Services case was opened on March 31, 1994, and after custody was shifted to Mays's mother, then back to Mays, on May 16, 1994, K.M. was adjudicated dependent-neglected and placed in DHS custody. On July 10,1998, the putative father, Ricky Releford, consented to the termination of his parental rights. Mays visited K.M. for a time, but by and large ceased to be a part of his life. DHS was relieved of providing reunification services to Mays on March 23, 1999. However, since K.M. was eighteen months old, he has been, by all accounts, lovingly cared for by foster parents Roy and Lena Jenkins.

K.M. has been the subject of numerous permanency-planning hearings since1998. By order entered November 10, 1998, which was more than four-and-a-half years after DHS took custody, the trial court ordered continuation of reunification services "because the Department has shown a compelling reason why it is not in the best interest of the juvenile to terminate parental rights." By an order entered on April 14, 1999, styled "Review of Permanency Planning Order," the trial court found that return of custody to Mays (Releford had by this time consented to termination of his parental rights) was "contrary to the safety, health, best interest and welfare of the child and continuation of custody in the Arkansas Department of Human Services is in the best interest of and necessary to the safety, health and protection of the child." The long term goal was stated to "continue to be long term foster care." (Emphasis supplied.) The court also found that it was "not prudent to proceed to terminate parental rights because the child's medical condition and the child's requirements dictate that the child is not likely to be adopted if parental rights are terminated." The trial court reiterated the goal of long term foster care in review orders filed for record on August 30, 1999, January 12, 2000, and June 2, 2000.

Yet another permanency-planning order was entered on October 13, 2000, in which the trial court found that Mays had not complied with the case plan, but found that termination of parental rights was not in K.M.'s best interest. It maintained the goal of long-term foster care. In a review order entered on March 26, 2001, the case plan goal was set at "guardianship." By review order entered on September 1, 2001, the trial court relieved DHS of the requirement of providing reunification services, but confirmed that the permanency goal was long-term foster care. A permanency-planning order was entered on November 6, 2001, in which the long-term goal was set as "independent living." Again, the trial court found that it was not in the best interest of the child to terminate Mays's parental rights. In a review order filed on April 23, 2002, the trial court again stated that the case goal was "long-term out of home placement." All of the above-cited orders found that the health and safety of K.M. dictated that he remain in DHS custody.

At an August 13, 2002, permanency planning hearing, Mays testified that she lives alone and is unemployed. She claimed that she last saw K.M. some two years previously, and although she would like to have more frequent contact, her lack of transportation prevents it. Mays acknowledged that K.M. requires a lot of care and attention, as well as a lot of medical supplies that she could not afford to provide. She testified unequivocally that she was very pleased and very satisfied with care that K.M. received from the Jenkinses, and saw no reason to step in and "disturb" the arrangement.

K.M.'s foster father Roy Jenkins was called by K. M.'s guardian ad litem. He testified that he would love to adopt K.M., but because of K.M.'s medical history it was "impossible" for him and his wife to do so. Mr. Jenkins stated that he had inquired about medical subsidies and lifetime Medicaid from the time that K.M. was first placed with him, but he concluded that they did not represent a financially viable alternative. He noted that he knew of "certain kids" who were up for adoption that did not get chosen because of their "chronic ailments." According to Mr. Jenkins, he had asked the court before to leave K.M. in long term foster care, but candidly admitted that if it "got down to the point where we really had to [adopt K.M.], then we probably would, but that would put a hard - a hardship on us." He also asserted that he and his wife were not young, and should something happen to his wife, he would have to put K.M.'s care on other family members, which he could not do. Mr. Jenkins further testified that he saw some benefit in avoiding termination of Mays's parental rights, not because she could one day step in and care for him, but there was value in maintaining family ties, especially with a child's mother. He stated that he understood that Mays did what she had to do because she could not take care of K.M. Mr. Jenkins testified that he had discussed adoption subsidies with a DHS adoption specialist, but she "couldn't guarantee that [K.M.] would keep his services." When pressed, Mr. Jenkins testified that, even if the State agreed to be responsible for all of K.M.'s medical care, he still was uncomfortable with the idea of adoption because, as he stated earlier, he could not count on someone else to step in and care for K.M. if "something happened" to either him or his wife. He also expressed some concern about a change in K.M.'s care-givers at school, noting that the services that K.M. needed required considerable training.

Toni Daschke testified that she was K.M.'s case manager at Integrity Incorporated. She lauded the work that Mr. Jenkins had done with K.M., crediting him with K.M.'srelative good health and the good progress that K.M. was making in therapy. Daschke noted that K.M. needed a new wheelchair, but stated that Medicaid only provided a new chair every three years. Daschke also expressed some concern about the prospect of a "paraprofessional" being assigned to work with K.M. during school hours, because to this point, DHS had been paying for nursing care throughout the school day. Daschke also testified that Mr. Jenkins related to her that Medicaid seemed to be resisting providing K.M. with a needed upgrade to his wheelchair.

At the close of the testimony, the trial judge announced that the case plan goal would be long term foster care. While the trial judge was directing DHS to resolve the problems with K.M.'s wheelchair, Mr. Jenkins chimed in that he had already had a prescription for a new chair in for ninety days. The trial judge stated that he did not intend to wait on the Medicaid bureaucracy and reiterated his requirement that the wheelchair situation be resolved in sixty days. The record indicates that it was not the first time that the trial judge had intervened directly to insure that DHS provided the medical services that K.M. needed.

By order filed on August 29, 2002, the trial court found that maintaining K.M. in DHS custody was in the child's best interest, and was "necessary to the protection of the juvenile's health and safety." Nonetheless, the court approved changing the goal of the case to termination of Mays's parental rights. The court also ordered that K.M. remain in his current therapeutic foster care placement.

At a review hearing held on October 15, 2002, the primary issue was the adequacy of the nursing services that were provided for K.M. at home and at school. Significantly, Cynthia Alexander, Clinical Manager for Extended Care for Gentiva Health, the company that provided K.M.'s nursing care, testified that DHS was paying for K.M.'s care because Medicaid had denied the claim for nursing services. Dr. Gary Smith, Director for the Division of Exceptional Children for the Little Rock School District, testified about the District's policy concerning the use of paraprofessionals as one-on-one care givers. He introduced into evidence K.M.'s "Individual Health Care Plan," a six-page, single-spaced document that included infection control procedures, respiratory care procedures, a tracheal suctioning-sterile technique-skills checklist, trach care procedures, respiratory treatment procedures, nutrition and hydration guidelines, gastrostomy feeding procedure, mobility requirements, neurology/seizures recognition and documentation procedures, therapies schedule, communication capabilities, a list of medications and equipment, and elimination procedures.

The paraprofessional that was hired to work with K.M. at school, Reponda Goins, testified next. She stated that she had experience caring for an individual with a trach and did not anticipate any problems in caring for K.M. At the close of the hearing, the court directed that she receive four hours of training over the next twenty school days prior to taking over K.M.'s care alone. The trial judge also ordered the continuation of the twenty hours of in-home nursing care that he previously ordered.

A termination hearing was set for January 10, 2003. Inexplicably, the termination petition has not been abstracted or made part of the transcript. Nonetheless, at the termination hearing, K.M.'s family service worker Brenna Meyers testified that K.M. was doing well in the Integrity program. She stated that the last documented contact between Mays and K.M., prior to the permanency-planning hearing, was on November 25, 1998. Meyers noted that she had not been contacted by Mays concerning K.M. since the hearing. She recommended termination of parental rights and adoption, even though the Jenkinses were "a little bit iffy," ascribing their reticence to concern over funding for K.M.'s medical needs. Meyers noted K.M.'s considerable medical problems and stated that he would need the same level of care for the rest of his life. Regarding subsidies, she stated that there were a variety of sources besides Medicaid, such as the DHS waiver program and "Together We Can," but she was not sure how long K.M. would remain eligible for them. Meyers intimated that she had sought to have an adoption worker who was more familiar with the subsidies available accompany her to the hearing, but apparently was unsuccessful in securing her attendance. She confirmed that subsidies were funded by the state, but could not "guarantee" that the subsidies would last for K.M.'s entire life. Further, Meyers testified that there was "no certainty" that the funding would be available should K.M. be adopted by the Jenkinses. However, she also stated that the Jenkinses were "definitely considering" adopting K.M. Interestingly, Meyers admitted that she told Mr. Jenkins that she "didn't think it was necessary" that he attend the hearing, and he was not present. Meyers claimed that DHS had "reason to be optimistic about there being an adoptive family" for K.M., but admitted that it would "not be good" for him if they found a different adoptive family and he was removed from the Jenkins home, and agreed that K.M. seemed to be "very bonded" with the Jenkinses. Regarding the likelihood that K.M. would be adopted, Meyers claimed that she was aware of a child with K.M.'s level of medical needs being adopted. However, she admitted that in her five years of experience with DHS, she did not know of any children in the Twelfth Judicial District with similar medical histories being adopted. Meyers also stated that as long as K.M. remained in DHS custody, the trial court could require it to pay for K.M.'s medical needs.

K.M.'s guardian ad litem strongly opposed changing the goal in the case from long -term foster care to adoption. She disputed DHS's contention that K.M. was "all of a sudden" adoptable, given his considerable medical needs. She also stated that much of K.M.'s medical needs were not met by Medicaid, of which the court was already aware.

Near the end of the hearing and presumably in recognition that DHS had failed to meet its burden of proof, the attorney for DHS, Jeanne Ann Whitmore, injected herself into the proceeding as a witness. On the issue of the likelihood that K.M. would be adopted, she stated that "it's abominable that we're assuming that there is not one family in this entire country that would be interested in providing permanency for this child." She also stated that the Jenkins "hopefully" would adopt K.M. When questioned by the trial judge why it would be in K.M.'s best interest, all that she could offer of substance was that if the Jenkins decided to discontinue providing foster care, DHS would have the termination "out of the way." The trial judge also asked if she could guarantee K.M's medical care would continue if the court would consent to termination, and Whitmore stated that she was unwilling to attempt to get approval, saying "I might as well give up the rest of my case load, because it's going to be a full time job for me to try to find that out." The trial judge concluded the hearing by stating that "I have got to make a finding that he's adoptable to terminate and without guarantees that his medical care is going to be provided, I don't think he's adoptable." Whitmore merely responded, "I guess we lose the termination hearing then."

The trial court found that DHS had not met its burden by clear and convincing evidence that it was in K.M.'s best interest to terminate Mays's parental rights. The court also found that K.M. was not adoptable under the circumstances that existed at the time of the hearing.

We first consider our standard of review. Cases such as this are reviewed de novo on appeal. Wade v. Arkansas Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Pursuant to Arkansas Code Annotated section 9-27-341(b)(3) (Repl. 2002), the facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court's evaluation of the evidence, we will not reverse unless the trial court clearly erred in finding that the relevant facts were established by clear and convincing evidence. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. Furthermore, we will defer to the trial court's evaluation of the credibility of the witnesses. Crawford v. Arkansas Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997).

However, in our review of the circuit judge's conclusions of law, we are not bound by the decision of the trial court. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). Although this court gives great deference to findings of fact by the circuit judge sitting as the finder of fact due to the judge's superior position to determine credibility issues, it does not give such deference to matters of law, in that the trial judge stands in no better position to apply the law than this court, and when we find that the trial judge misapplied the law and that, as a result, an appellant has suffered prejudice, we will reverse the erroneous ruling. Acord v. Acord, 70 Ark. App. 409, 19 S.W.3d 644 (2000).

DHS first argues that where the trial court failed to give preference to adoption as a permanency plan, it was clearly erroneous when it denied the petition for termination of parental rights. Citing section 9-27-338 of the juvenile code, DHS asserts that the legislature has clearly stated that where a child cannot be returned home, the preferred goal is adoption, which makes the trial court's decision inappropriate. It contends that section 9-27-338 should also be read in harmony with the termination of parental rights statute, Arkansas Code Annotated section 9-27-341, and that because the purpose of a termination hearing is to "clear the way for adoption," and to "provide permanency for children who cannot be returned home," the trial court's intent to prevent an adoption was contrary to the "spirit and purpose" of the juvenile code. DHS asserts that adoption was the only "appropriate" placement alternative because return of K.M. to Mays was not a viable alternative, no relatives or potential guardians requesting custody of K.M. have been identified, independent living was not feasible given K.M.'s youth and disabilities, and because adoption was favored by "public policy." We find this argument unpersuasive.

We agree that the plain language of Arkansas Code Annotated section 9-27-338 (Repl. 2002), does express an order of preference for permanency goals, and that adoption is the preferred disposition. However, the statute also states that the goals must be "based upon the facts of the case" and must be "in accordance with the best interest of the juvenile." The fact that the legislature has created other alternatives, B through F1 in the statute, leads us to the only rational conclusion that the legislature did not intend to foreclose consideration and selection of those other alternatives in appropriate situations. Under the facts of this case, we believe that the trial court was not clearly erroneous in selecting a permanency plan other than adoption.

We also agree with DHS's assertion that the purpose of a termination of parental rights is to "clear the way" for adoption. However, we disagree with DHS, as did the trial judge, that adoption was in the best interest of the juvenile in this case. Even the most cursory reading of the record leaves one with an understanding that K.M. is a child with extraordinary medical needs. The recurring theme throughout the three hearings that we have before us is the struggle to secure for K.M. the medical services that are crucial to his health and well-being. We believe that for such a medically fragile child, these needs are essentially synonymous with the "best interest of the juvenile." The best interest of the juvenile is, of course, the standard that is the guiding principle of those sections of the Juvenile Code that DHS has urged us to construe.

We cannot close our eyes to the fact that the testimony adduced at these hearings made it abundantly clear that it was only through the intervention of the trial judge that K.M.'s medical needs were being met in an effective and timely manner. We acknowledge that the trial judge apparently believes, and rightfully so, that should he be removed from the situation by the adoption of K.M., the adopting parents would be left to grapple with the medical welfare bureaucracy all by themselves, a situation that could not possibly be in K.M.'s best interest. Accordingly, we hold that the trial judge's decision rejecting adoption as a permanency alternative was not clearly erroneous.

We similarly reject DHS's contention that the trial court did not select an "appropriate" long term goal when it selected long-term foster care instead of adoption. We note that "long term foster care" is cognizable under Arkansas Code Annotated section 9-27-338(a)(4)(F). It states in pertinent part:

(F) Independence, which shall be selected only if:

(i) The juvenile cannot be reunited with the juvenile's family;

(ii) Another permanent plan is not available; and

(iii)(a) A compelling reason exists why termination of parental rights is not in the juvenile's best interest[.]

In urging us to reverse the trial court's selection of this alternative, DHS's argument seems to ignore the fact that K.M.'s own mother and grandmother found the burden of his care too overwhelming to even attempt it for more than a few weeks. It also seems to ignore that fact that DHS was able to secure for K.M. the kind of loving care and nurturing that he needed through foster care. It also seems to ignore the fact that the Jenkinses have done this laudable work since K.M. was eighteen months old and have expressed a desire to remain as his foster parents for the foreseeable future. Finally, and most importantly, DHS's argument seems to ignore the fact that the Jenkinses have clearly expressed their desire to remain only as K.M.'s foster parents. Accordingly, we believe it is completely disingenuous for DHS to even suggest that the trial court deviated from stated public policy by maintaining K.M. in the environment that he has thrived in for more than seven of his nine years. We also find it completely disingenuous for DHS to summarily dismiss the viability of this alternative when it claimed that "independent living" was not "feasible" given K.M.'s youth and disabilities. As noted above, the permanency goal of "independence," which DHS is apparently referring to, does not mean sending a juvenile out on his or her own, but rather maintaining the child in foster care until DHS can no longer maintain custody at eighteen or twenty-one, depending on the circumstances. K.M.'s age and disability, particularly the latter, are the very reason why the trial court would select this alternative. We hold that the trial court's decision was in complete accord with the best interest of the juvenile and afforded K.M. the greatest degree of permanency that he could realistically hope to find under the particular facts of this case.

DHS next argues that there was clear and convincing evidence that K.M. could be adopted. Citing the plain language of Arkansas Code Annotated section 9-27-341, it asserts that although the code requires that adoption must be "considered" when determining the best interest of the child, it does not require a finding that the child is adoptable. (Emphasis in original.) It contends that termination could "conceivably" be ordered even if there is a "low likelihood of adoption," because termination could still be in the child's best interest. Further, DHS argues that it presented clear and convincing evidence that K.M. was adoptable. It refers to the testimony of Brenna Meyers and Mr. Jenkins as support for DHS's position that "[i]f someone wants to adopt a specific child, then the child is adoptable, even though there may be barriers or problems that must first be overcome." It, however, concedes that the juvenile code does not give guidance on how a trial court should determine if a child is likely to be adopted. Nonetheless, it points to the "standard technique" used by DHS in which it assesses characteristics such as race, age, sex, medical needs, emotional problems, and the existence of siblings and compares them to a database of potential parents who are willing to accept a child with those characteristics, and states that Meyers testified that there were "several families" who had indicated they would adopt a child with K.M.'s characteristics. Finally, it cites Arkansas Code Annotated section 9-9-204, which states that "Any individual may be adopted," and asserts that because the legislature did not forbid the adoption of children with disabilities unless the adopting parents are extremely wealthy, or unless the state guaranteed unlimited payment of all possible future medical needs, then the trial court should not be allowed to impose unreasonably restrictive requirements before granting a petition for termination. This argument is also unpersuasive.

We note first that DHS is correct that Arkansas Code Annotated section 9-27-341 does not require a finding that K.M. was "adoptable." We are inclined to find this issue barred by the fact that DHS failed to timely object when the trial judge announced that he had to make a finding that K.M. was "adoptable." However, we choose to dispose of the argument on the merits. See Arkansas Dep't of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) (Repl. 2002)requires consideration of the "likelihood that the juvenile will be adopted if the termination petition is granted." (Emphasis supplied.) Accordingly, we reject as irrelevant DHS's stated major premise that there was clear and convincing evidence that K.M. "could" be adopted. We construe the statute to require an assessment of the probability that potential adoptive parents will select this particular child. Satisfying this statutory element necessarily requires a consideration of a variety of factors that will pertain to the particular child. It is not satisfied, as DHS suggested both on appeal and before the trial court, by "assuming" that a family somewhere in the United States would be interested in adopting K.M. Rather, it requires of the trial court a judgment of where the juvenile falls on the spectrum of likelihood of adoption. We accept DHS's suggestion that such a judgment would require consideration of both the characteristics of the child and demographics of the pool of identified potential adoptive parents. DHS concedes that a healthy newborn infant is the most likely child to be adopted. Obviously, older children with more challenging characteristics such as extensive medical needs or emotional problems would be less likely to be adopted.

From our reading of the record, we are able to form no other conclusion than that the trial judge did properly consider the likelihood of K.M. being adopted. Obviously, the medical needs of K.M. was a characteristic that was very prominently, if not preeminently, considered, and rightly so. As noted above, at the permanency-planning hearing, Roy Jenkins testified that although he would like to, he did not feel that he could adopt K.M., given the age of him and his wife and the fact that K.M.'s medical care had proven to be in the past and almost certainly would be in the future overwhelmingly expensive. He also stated that knew of "certain kids" who were up for adoption that did not get chosen because of their "chronic ailments." DHS presented no other witness to rebut this testimony. At the termination hearing, while it is true that Brenna Meyers stated that she thought K.M. was adoptable, when the basis of this opinion was probed, it was obvious that this opinion was not well-founded. She claimed that she was aware of a child with K.M.'s level of medical needs being adopted, but confessed that in her five years of experience with DHS, she did not know of any children in the Twelfth Judicial District with similar medical histories being adopted. Significantly, Meyers also stated that as long as K.M. remained in DHS custody, the trial court could require it to pay for K.M.'s medical needs. It was DHS's burden to present clear and convincing evidence concerning the "likelihood" that K.M. would be adopted if Mays's parental rights were terminated. Ark. Code Ann. § 9-27-341. We hold that the trial court's finding that DHS failed to meet this burden was not clearly erroneous.

For its third point, DHS argues that where the trial court failed to consider the benefits of a subsidized adoption, the trial court was clearly erroneous when it found adoption was not in the child's best interest because there was a possibility that his medical needs may not be provided at a future date. It asserts that the trial court "should have considered" Arkansas Code Annotated section 9-9-408, which provides for adoption subsidies. It notes, however, that Arkansas Code Annotated section 9-9-407 did not authorize DHS to enter into such a contract until "reasonable efforts have been made and no appropriate adoptive family without the use of a subsidy has been found for a child." DHS contends that without a successful termination hearing rendering K.M. "free for adoption," K.M. would not be an "eligible child" as contemplated by the adoption subsidy statute. Finally, DHS argues that the trial court did not give "appropriate weight" to the medical services available to disabled children who are not in foster care. It states that K.M. was already "waiver approved," so that he would continue to be eligible to receive extraordinary medical care at no cost to the adoptive parents. DHS also asserts that K.M.'s "conditions were improving and his needs were decreasing."

We find this argument to be totally without foundation. There is ample proof in the record that the trial judge considered medical subsidies in depth. There is also ample proof in the record that DHS was unable to provide any but the most cursory explanations of what was available, should K.M. be adopted. As noted above, DHS caseworker and principle witness Brenna Meyers testified that she was not able to answer the trial judge's specific questions regarding adoption subsidies. Significantly, Meyers stated that she had tried unsuccessfully to secure the attendance at the termination hearing of an adoption specialist who was more familiar with the assistance that was available. Moreover, DHS attorney Jeanne Ann Whitmire was unable to rectify this failure of proof when she stepped up to testify at the termination hearing. It is not our role to relieve DHS of its failure to present sufficient proof at the termination hearing, and we decline to do so.

Finally, DHS argues that where public policy and fundamental fairness demand that children in similar situations should not receive disparate treatment as a result of their class status, and where other foster children may be adopted if they are not disabled, the trial court's denial of the termination petition was clearly erroneous. This argument is barred because it was not raised to the trial court. Failure to raise the challenge below is fatal to the appellate court's consideration on appeal; even constitutional issues will not be considered when raised for the first time on appeal. Walters v. Arkansas Dep't of Human Servs., 77 Ark. App. 191, 72 S.W.3d 533 (2002).

Affirmed.

Griffen and Roaf, JJ., agree.

1 Ark. Code Ann. sec. 9-27-338 states in pertinent part:

(4) At the hearing, based upon the facts of the case, the court shall enter one (1) of the following permanency goals, listed in order of preference, in accordance with the best interest of the juvenile:

(A) Return the juvenile to the parent, guardian, or custodian at the permanency planning hearing if it is in the best interests of the juvenile and the juvenile's health and safety can be adequately safeguarded if returned home; or

(B)(i) Authorize a plan for the termination of the parent-child relationship so that the child is available to be adopted unless the:

(a) Child is being cared for by a relative and termination of parental rights is not in the best interest of the child;

(b) Department has documented in the case plan a compelling reason why filing such a petition is not in the best interest of the child and the court approves the compelling reason as documented in the case plan;

(c)(1) Department has not provided to the family of the child, consistent with the time period in the case plan, such services as the department deemed necessary for the safe return of the child to the child's home if reunification services were required to be made to the family.

(2) If the department has failed to provide services as outlined in the case plan, the court shall continue the permanency planning hearing for no later than six (6) months.

(ii) If the court determines the permanency goal to be termination of parental rights, the department shall file the petition to terminate parental rights within thirty (30) days from the date of the entry of the order establishing the goal;

(C) Authorize a plan to obtain a guardian for the child;

(D) Authorize a plan to obtain a permanent custodian for the child;

(E)(i) Continue the goal of reunification only when the parent is complying with the established case plan and orders of the court, making significant measurable progress towards achieving the goals established in the case plan, and diligently working toward reunification.

(ii) Reunification must be expected to occur within a time frame that is consistent with the child's developmental needs.

(iii) A parent's resumption of contact or overtures toward participating in the case plan or following the orders of the court in the months or weeks immediately preceding the permanency hearing are insufficient grounds for retaining reunification as the permanency plan.

(iv) The burden is on the parent to demonstrate genuine, sustainable investment in completing the requirements of the case plan and following the orders of the court in order to retain reunification as the permanency goal;

(F) Independence, which shall be selected only if:

(i) The juvenile cannot be reunited with the juvenile's family;

(ii) Another permanent plan is not available; and

(iii)(a) A compelling reason exists why termination of parental rights is not in the juvenile's best interest; or

(b) The juvenile is being cared for by a relative and termination of parental rights is not in the best interests of the juvenile.