Ruben Smith v. Arkansas Department of Health and Human Services
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DIVISION II
CA 07-335
OCTOBER 3, 2007
RUBEN SMITH
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HEALTH AND HUMAN SERVICES
APPELLEE
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. JN2005-2096]
HONORABLE RITA GRUBER,
JUDGE
AFFIRMED
JOHN B. ROBBINS, Judge
Appellant Ruben Smith appeals the termination of his parental rights to his daughter,
JS (born 7-31-05). He argues that: 1) the trial court erred in allowing the Arkansas
Department of Health and Human Services (DHHS) to amend the termination petition on the
day of the termination hearing; 2) there was insufficient evidence to terminate his parental
rights; 3) the trial court’s termination order improperly referred to evidence presented at prior
hearings. We affirm.
Factual Background
Our factual recitation is taken from the court’s termination order and other matters in
the record, which Smith designated on appeal to include all pleadings, motions, reports,
exhibits, orders, and case plans from October 13, 2005 (the date of the probable-cause order),
to January 9, 2007 (the date of the termination order).
On October 7, 2005, JS, then less than three months old, tested positive for cocaine
at Arkansas Children’s Hospital. Within days, DHHS removed the child from the custody of
her mother, Katrina Harden, and on October 13, 2005, the trial court entered a probablecause order continuing custody in DHHS. The court directed that paternity be established as
to JS and two other of Ms. Harden’s children, and an adjudication hearing was set for
December 5, 2005.
Smith acknowledged paternity of JS, and he appeared at the December 5 adjudication
hearing. JS was found dependent/neglected based on her testing positive for cocaine and her
mother’s drug use.1 The court, having already entered orders pertaining to Ms. Harden,
ordered Smith to obtain stable housing, employment, and income; to keep DHHS informed
of his address, telephone numbers, and employment; to have random drug screens; and to
undergo a drug and alcohol assessment. Smith was also referred for a GED. Supervised
visitation was established for both parents. The goal of the case was reunification, with a
review hearing set for March 29, 2006.
A report prepared by DHHS for the review hearing shows that Smith had not started
working on his GED; was living with his aunt; had obtained temporary employment at a
video store; had visited JS; and continued to test positive for drugs. After the hearing, the
1
Between October 2005 and December 2005, Ms. Harden repeatedly tested
positive for cocaine, marijuana, or both.
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court continued custody in DHHS and suspended visitation until the parents could comply
with the court’s orders. A permanency-planning hearing was set for September 20, 2006.
On August 14, 2006, DHHS filed a petition to terminate Smith’s and Ms. Harden’s
parental rights. The petition alleged that returning JS to her parents was not in her best
interest and was contrary to her health, safety, and welfare; that returning her to her parents
could not be accomplished in a reasonable period of time as viewed from her perspective;
that JS was found dependent/neglected “as the result of neglect and/or abuse that could
endanger [her life] which was perpetrated by the juvenile’s mother”; that other factors or
issues arose subsequent to the filing of the original dependency-neglect petition
demonstrating that returning JS to the custody of her parents was contrary to her health,
safety, and welfare; and that, despite the offer of appropriate family services, the parents
manifested the incapacity or indifference to remedy the subsequent issues or rehabilitate their
circumstances.
The permanency-planning hearing proceeded on September 20, 2006. Smith and Ms.
Harden tested positive for drugs on that date. A DHHS report stated that Smith had not
started working on his GED and that the caseworker could not tell if Smith was employed.
Further, visitation with JS remained suspended. The trial court found that neither Smith nor
Ms. Harden was in compliance with court orders or the case plan, and the goal of the case
was changed to termination of parental rights. A termination hearing was set for November
20, 2006.
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Smith did not appear at the termination hearing but was represented by counsel. At
the beginning of the hearing, counsel objected when DHHS moved to amend its termination
petition to add that JS had “been in the Department’s custody for twelve months or longer.”
The trial court allowed the amendment, stating that all participants in the case were aware
that JS had been in DHHS custody for over a year.
The hearing went forward with testimony from adoption specialist Monica Spencer
that the likelihood of adoption for JS and the other children was “very possible.” DHHS
caseworkers testified that they had experienced difficulty maintaining contact with Smith
since September 2006. Caseworker Linda Marshall testified that, when visitation with JS was
allowed, Smith’s visits were inconsistent. She also said that he continually tested positive for
drugs; that he did not follow up on recommendations after receiving a drug-and-alcohol
assessment; and that he was not working, as far as she knew. Marshall said further that JS
had remained in DHHS custody since October 2005, and she recommended termination of
parental rights. The ad litem attorney introduced into evidence certified copies of the court’s
probable-cause and adjudication orders. The court also made a finding of reasonable efforts
by DHHS without objection by Smith.
On January 9, 2007, the court entered an order terminating Smith’s parental rights to
JS.2 The court recited a detailed history of its prior orders and the evidence adduced at the
2
The court also terminated Ms. Harden’s parental rights to JS and two other
children and terminated the parental rights of the putative fathers of those children. The
only termination at issue in this appeal is the termination of Smith’s parental rights to JS.
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termination hearing and mentioned some evidence from prior hearings. It found that Smith
had been inconsistent in visiting JS; that he failed to appear at the termination hearing; that
he had multiple, positive drug tests; and that he failed to “engage in the simplest of services.”
Under those circumstances, the court said, reunification would be unlikely even if services
continued. The court also noted that, despite court-ordered services and intervention, Smith
did not maintain meaningful contact with JS and did not rehabilitate himself to the point
where reunification was a viable option. Further, the court said, JS had been in foster care
since October 2005; she was “young and adoptable”; and she should not have to “languish”
in foster care due to the “inaction of the adults in this case.” The court then concluded that
it was in JS’s best interest to terminate Smith’s parental rights. Smith filed a timely notice
of appeal.
Preliminary Argument by DHHS
We first address DHHS’s argument that “the appeal should be dismissed because the
record is deficient.” DHHS refers to the fact that Smith’s addendum does not contain all
relevant pleadings, orders, and exhibits.
In support of its argument, DHHS cites Busbee v. Arkansas Department of Health &
Human Services, ___ Ark. ___, ___ S.W.3d ___ (Apr. 12, 2007), where our supreme court
dismissed an appeal in a termination-of-parental-rights case because the appellant,
proceeding under the relatively new Ark. Sup. Ct. R. 6-9, failed to include in the record
various orders that preceded the termination order. However, Busbee applies only to the
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failure to include relevant orders in the record, which is not an issue here; all relevant orders
are included in Smith’s record. The deficiencies that DHHS points to in the present case
concern Smith’s addendum. Therefore, Busbee is not on point.
Nevertheless, we agree with DHHS that Smith’s addendum is lacking. Arkansas
Supreme Court Rule 6-9(e)(2)(E) provides that an addendum shall include, among other
things, “relevant pleadings, documents, or exhibits essential to an understanding of the case
. . . .” From a record containing over 800 pages of orders, pleadings, exhibits, and
testimony—much of which was relevant to the trial court’s findings and essential to our
understanding of the case—Smith has addended only the notice of appeal, the termination
order, and the termination petition. However, Rule 6-9 allows an appellee to supplement the
appellant’s addendum if the appellee considers it defective or incomplete. Ark. Sup. Ct. R.
6-9(f)(2)(C). Supplemental addenda were filed in this case by DHHS and the attorney ad
litem, and they include some of the relevant exhibits and orders. We therefore rely on those
supplements. Additionally, we see nothing in Rule 6-9 that prohibits us, in the course of our
de novo review, from going to the record to affirm. See generally Mobley Law Firm v. Lisle
Law Firm, 353 Ark. 828, 120 S.W.3d 537 (2003). Accordingly, we decline DHHS’s request
to dismiss the appeal, and we turn to the arguments presented by Smith.
Amendment To Petition
Smith argues that the trial court violated his due-process rights when it allowed DHHS
to amend the termination petition on the day of the termination hearing. DHHS sought
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permission to amend its petition to reflect that the children had been in DHHS custody for
twelve months or longer, which is a component of two grounds for termination under our
statute:
That a juvenile has been adjudicated by the court to be dependent-neglected and has
continued 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; and
That the juvenile has lived outside the home of the parent for a period of twelve (12)
months, and the parent has willfully failed to provide significant material support in
accordance with the parent’s means or to maintain meaningful contact with the
juvenile.
Ark. Code Ann. §§ 9-27-341(b)(3)(B)(i)(a) and (ii)(a) (Supp. 2005).
We find no reversible error. Under Ark. R. Civ. P. 15(a), with certain exceptions not
applicable here, a party may amend his pleadings at any time without leave of the court,
unless, upon motion of an opposing party, the court determines that prejudice would result
or disposition of the cause would be unduly delayed. See Trice v. Trice, 91 Ark. App. 309,
210 S.W.3d 147 (2005). If prejudice or undue delay is demonstrated, the court may strike the
amended pleading or grant a continuance. See id. The trial court has broad discretion in
allowing or denying amendment of the pleadings. Id. Where neither a continuance is
requested nor a demonstration of any prejudice resulting from an amendment is shown, the
amendment should be allowed. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997).
Smith did not request a continuance to meet the substance of the amendment. Nor did
he demonstrate prejudice. The amendment added a factual matter that all parties knew or
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should have known: that JS had been in DHHS custody for more than twelve months.
Moreover, in terminating Smith’s parental rights, the trial court cited a ground that does not
depend on the child’s being out of the parent’s custody for twelve months—that there is little
likelihood that services to the family will result in successful reunification. See Ark. Code
Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) (Supp. 2005). Based on these factors, we affirm on
this point.
Sufficiency Of The Evidence To Support Termination
Termination of parental rights is an extreme remedy and in derogation of the natural
rights of parents, but parental rights will not be enforced to the detriment or destruction of
the health and well-being of the child. Meriweather v. Ark. Dep’t of Health & Human Servs.,
98 Ark. App. 328, ___ S.W.3d ___ (2007). Grounds for termination of parental rights must
be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree
of proof that will produce in the fact finder a firm conviction as to the allegation sought to
be established. Id. When the burden of proving a disputed fact is by clear and convincing
evidence, the appellate inquiry is whether the trial court’s finding that the disputed fact was
proven by clear and convincing evidence is clearly erroneous. Id. A finding is clearly
erroneous 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.
The goal of our termination statute is to provide permanency in a child’s life in
circumstances where returning the child to the family home is contrary to the child’s health,
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safety, or welfare and the evidence demonstrates that a return to the 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) (Supp. 2005). Parental rights may be terminated if clear and
convincing evidence shows that it is in the child’s best interest. Ark. Code Ann. §
9-27-341(b)(3) (Supp. 2005). Additionally, one or more statutory grounds must be shown by
clear and convincing evidence. Meriweather, supra.
We cannot say that the trial court clearly erred in this case. In its adjudication order,
the court directed Smith to obtain stable housing, employment, and income; to keep DHHS
informed of his address, telephone numbers, and employment; to have random drug screens;
and to undergo a drug-and-alcohol assessment. The court also established visitation with JS
and referred Smith for a GED. Yet, the evidence shows that Smith persistently failed to
comply with the court’s order and failed to take advantage of the family services being
offered. He was inconsistent in his visitation of JS. In fact, his visitation was eventually
suspended and never reinstated because of his disobedience of court orders. He tested
positive for drugs throughout the case, including on the date of the permanency-planning
hearing, and did not follow up on recommendations resulting from a drug-and-alcohol
assessment. Further, he was not working or pursuing his GED. Additionally, he was generally
unavailable to DHHS workers, and he failed to appear at the termination hearing.
Considering these factors, along with Ms. Spencer’s testimony that adoption of JS was “very
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possible,” we do not believe that the trial court clearly erred in finding that termination of
parental rights was in JS’s best interest.
We also find no clear error in the trial court’s determination that reunification would
be unlikely even if services continued. Arkansas Code Annotated section 9-27341(b)(3)(B)(ix)(a)(3)(B)(i) (Supp. 2005) establishes a ground for termination where the
parent is found by a court to have subjected any juvenile to “aggravated circumstances.” The
term “aggravated circumstances” includes the following definition:
A juvenile has been abandoned, chronically abused, subjected to extreme or repeated
cruelty, sexually abused, or a determination has been made by a judge that there is
little likelihood that services to the family will result in successful reunification.
(Emphasis added.) This type of aggravated circumstance can occur where a parent is not
following through with offers of assistance; is not completing basic goals of the case plan,
such as obtaining appropriate jobs and housing; and there is a lack of significant progress on
the parent’s part. See, e.g., Davis v. Ark. Dep’t of Human Servs., 98 Ark. App. 275, ___
S.W.3d ___ (2007). This describes Smith’s conduct in this case quite accurately.
Moreover, in our de novo review, we could hold alternatively that other grounds for
termination were met. See Johnson v. Ark. Dep’t of Human Servs., 78 Ark. App. 112, 82
S.W.3d 183 (2002). Arkansas Code Annotated section 9-27-341(B)(3)(B)(vii)(a) provides
as a ground for termination:
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
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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.
Smith’s behavior in the months following the filing of the dependency-neglect petition
matches up well with this statutory language. Despite DHHS’s provision of reasonable
services, he engaged in continuous drug use throughout the case and took no steps to remedy
his problem; exhibited a lack of cooperation; was apathetic toward the outcome of the
termination hearing; and was indifferent to complying with court orders.
In light of the foregoing, we cannot say that the trial court’s termination of Smith’s
parental rights was clearly erroneous.
Trial Court’s Consideration Of Evidence From Prior Hearings
Smith argues that, because the termination order “contains evidence not presented at
the termination hearing,” it violates Ark. Sup. Ct. R. 6-9. The relevant portion of that rule
reads:
The record for appeal shall be limited to the transcript of the hearing from which the
order on appeal arose, any petitions, pleadings, and orders relevant to that hearing,
and all exhibits entered into evidence at that hearing.
Ark. Sup. Ct. R. 6-9(c)(1).
The trial court’s order does in fact refer to prior orders and evidence from earlier
proceedings. However, we find no error. In Osborne v. Arkansas Department of Human
Services, ___ Ark. App. ___, ___ S.W.3d ___ (Mar. 7, 2007), the appellant argued that the
trial court erred in relying on evidence from prior hearings in a termination case. We
disagreed and stated:
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The process through which a parent or parents travel when a child is removed from
their home consists of a series of hearings—probable cause, adjudication, review, no
reunification, disposition, and termination. All of these hearings build on one another,
and the findings of previous hearings are elements of subsequent hearings.
Id. at ___, ___ S.W.3d at ___ (quoting Neves da Rocha v. Ark. Dep’t of Human Servs., 93
Ark. App. 386, 219 S.W.3d 660 (2005)).
We recognize that the termination order in Osborne was entered before the effective
date of Rule 6-9, but we see no reason to depart from its holding. Rule 6-9 governs “appeals
in dependency-neglect cases.” It contains provisions pertaining to appealable orders, notices
of appeal, the record on appeal, the parties’ petitions and responses, and other appellate
forms and procedures. It does not state that it governs a trial court’s manner of deciding
dependency-neglect proceedings. In particular, we find nothing in the rule that dictates what
evidence may be considered by a trial court in termination proceedings. We therefore reject
Smith’s argument.
Conclusion
For the reasons stated, we affirm the trial court’s termination of Smith’s parental
rights to JS.
Affirmed.
P ITTMAN, C.J., and G LADWIN, J., agree.
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