Krista Russell v. Arkansas Department of Health & Human Services
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
BRIAN S. MILLER, JUDGE
DIVISION IV
CA07-518
October 3, 2007
KRISTA RUSSELL
APPELLANT
AN APPEAL FROM SEBASTIAN COUNTY
CIRCUIT COURT
[No. JV-2002-341]
v.
ARKANSAS DEPARTMENT OF
HEALTH & HUMAN SERVICES
APPELLEE
HONORABLE MARK HEWETT,
CIRCUIT JUDGE
AFFIRMED
Krista Russell appeals from an order terminating her parental rights to three of her
children: A.R. (a daughter born January 4, 1995), K.R. (a daughter born October 21, 1999),
and K.R. (a son born March 8, 2004). We affirm.
The girls were first removed from Russell’s home in May 2002 after A.R. was
sexually abused by an out-of-home offender and physically abused by her stepfather. A
June 25, 2002 adjudication order, found that the children were dependent-neglected and set
reunification as the goal of the case. The court ordered Russell to obtain psychological
evaluations; to attend follow-up counseling; to have a drug-and-alcohol assessment and to
receive treatment and random drug screens to complete parenting classes; to participate in
the children’s therapy; to maintain stable housing, employment, and income; to cooperate
with DHHS and its providers; and to participate in a domestic-violence support group. The
girls were returned to Russell after a July 2003 review hearing.
Russell gave birth to a son, K.R., on March 8, 2004. The children were removed from
Russell’s home on November 19, 2004, and an adjudication order was entered on May 10,
2005, finding that the children’s needs were not being met, although DHHS had provided
services and had made reasonable efforts to preserve the family. The court found that the
children were dependent-neglected and set reunification as the goal. Russell was given
weekly visitation and was ordered to maintain stable and appropriate housing, income, and
employment. The court ordered her to submit to random drug screens, to remain drug-free,
and to participate in therapy with the children. Russell gave birth to another daughter on
August 11, 2005, who is not a party to this appeal.
On January 30, 2006, the court entered a permanency-planning order maintaining
reunification as the goal. The court noted that Russell’s son had asthma and that she had not
attempted to stop smoking. In addition to the previously-ordered actions, the court ordered
Russell to apply for food stamps; to arrange for reliable transportation; and to cooperate with
CASA. In a March 2006 review order, the court again ordered Russell to obtain reliable
transportation and a driver’s license; to get outpatient drug treatment; to participate in family
counseling; and to cooperate with the children’s therapist’s requests.
The goal of the case was changed to termination in an April 2006 review order. The
court found that DHHS made reasonable efforts to reunify the family but that Russell failed
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to comply with the case plan; to maintain stable housing, employment, income, or
transportation; to make her home accessible to DHHS or CASA; and to obtain drug
treatment. In an August 2006 review order, the court found that Russell met several of its
requirements but failed to maintain stable and appropriate housing, employment, or
transportation and that she failed to complete outpatient drug treatment or counseling.
In a December 20, 2006 permanency-planning order, the court found that terminating
Russell’s parental rights was in the best interests of all of the children, except for the secondoldest daughter. Although Russell now had housing and was employed, the children had
been in and out of foster care since May 2002 and Russell had neither submitted to outpatient
drug treatment nor completed counseling.
In its January 4, 2007 termination petition, DHHS alleged that the children had been
in its custody for more than twelve months and that there was little likelihood that they could
be returned to Russell within a reasonable period of time; that Russell failed to remedy the
causes of her children’s removal, despite the services offered by DHHS; and that, since
removal, circumstances had arisen that made it impossible to safely return them.
At the February 9, 2007 termination hearing, Brenda Baker, a social worker assigned
to counsel Russell, testified that her counseling sessions with Russell ended when Russell
missed two sessions and then failed to return Baker’s messages. Bonnie Zirbel, an outpatient
counselor, testified that she assessed Russell on two occasions and recommended outpatient
treatment but Russell failed to comply. Chris Keller, a substance-abuse counselor, testified
that he attempted to schedule Russell in group therapy sessions that were convenient for her
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work schedule; however, she did not attend any.
Cheryl Edwards, a social worker assigned to counsel Russel and A.R., testified that
Russell stopped attending counseling in August 2004, when A.R. was placed with Russell
on a trial basis.
Edwards further testified that A.R. regressed psychologically while in
Russell’s care. After residing in Russell’s home for three months, A.R. became angry, acted
out, tore up things, and hit other children.
Amber Waite testified that she became Russell’s primary mental health therapist after
Russell attempted suicide in June 2006. She stated that the case was closed when Russell
failed to respond to a letter she sent to Russell addressing Russell’s failure to appear for an
appointment on September 15, 2006.
Rob Ratley, with the electric company in Fort Smith, testified that service to Russell’s
residence had been shut off in December 2006 and January 2007 and that she was scheduled
for shut-off on February 21, 2007. He said that the second-oldest daughter’s and the son’s
social security numbers and A.R.’s name had been used to secure service.
Michelle Sylva stated that she had been assigned to assist Russell with homemaking
skills on a weekly basis since November 2006, when, except for a futon bed, her apartment
had no furniture; however, Russell had all the things she needed by mid-January 2007.
Tiffany May, a family service worker, testified that DHHS offered a panoply of
services to Russell, including parenting and domestic-violence classes, psychological
evaluations, drug-and-alcohol assessments, referrals for outpatient drug treatment, in-home
counseling, individual counseling, family counseling, day-care services, assistance with
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homemaking, budgeting, and housecleaning, and a HUD request. She stated that Russell’s
excuse for not attending a drug-treatment program was that it conflicted with her work
schedule at a convenience store, which was her sixth job since the case began. She stated
that Russell had nine residences in the past two years and sometimes lived with friends. She
said that Russell tested positive for marijuana on November 21, 2006.
May described an angry confrontation between Russell and A.R. during visitation in
March 2005. When May asked Russell to calm down, Russell cursed at May and pushed a
door hard enough to punch a hole in the wall and damage the hinges. May confirmed that
Russell did not keep A.R. in counseling once A.R. was back in Russell’s home and that A.R.
had been in nine different placements and in either a treatment facility or residential
therapeutic foster care for the majority of her stay with DHHS. She said that the minors are
adoptable.
May testified that Russell had difficulty maintaining stable housing and employment
and had not completed domestic-violence or in-home parenting classes. She said that Russell
lied to her and to the court. May stated that Russell had a drug problem and needed to go to
outpatient treatment.
The final witness for DHHS was Brenna Myers, who testified that DHHS was
awaiting the results of a home-study conducted on Russell’s parent’s home in Indiana.
Russell testified that she had worked at a convenience store since August 2006; that
she had lived at her current apartment since September 2006; that she had all the necessary
furniture; that she drove a 1999 Ford Taurus that was titled, tagged, and insured; and that she
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had no transportation problems. She said that the electricity to her apartment had been shut
off two times but all of the utilities were currently on. She admitted that she went to
counseling only three times because her work schedule did not allow it. She acknowledged
that DHHS helped her to obtain furniture and clothing for the children. Russell admitted to
abandoning furniture, flinging the door into the wall at the DHHS office, and taking A.R. off
her medication without a doctor’s supervision. Russell conceded that, except for a single
payment, she had not paid child support.
The circuit court terminated Russell’s parental rights on March 26, 2007. In doing so,
the court found that the minors had been out of Russell’s home for more than twelve months
and that there was little likelihood that the children could be returned to Russell within a
reasonable period of time. The court also found that there would be a serious risk of harm
to the minors if they were returned to Russell and that the minors were adoptable.
The court further found that DHHS had made reasonable efforts to provide the family
with reunification services and that despite these efforts, Russell was unable or unwilling to
rehabilitate herself or her circumstances to the extent that the juveniles could be safely
returned to her. These determinations were based on a number of factors, including the fact
that, during the two years immediately preceding its order, Russell: (1) had nine separate
residences; (2) had her electricity disconnected twice; (3) had six different jobs; (4) tested
positive for drugs and refused to attend drug treatment; (5) did not cooperate with in-home
counseling and did not complete domestic violence classes; and (6) failed to pay child
support and had an arrearage of $2,001.00. The court found that Russell was unable to
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manage her own affairs and that she frustrated reunification efforts by refusing to be candid
with DHHS and the court.
On appeal, Russell first argues that she met some of the requirements of her case plan
and that the trial court erred in finding that the termination of her parental rights was in the
best interests of her children and in finding that one of the grounds for termination was
proven. We review termination of parental rights cases de novo. Yarborough v. Ark. Dep’t
of Human Servs., 96 Ark. App. 247, ____ S.W.3d ____ (2006). The grounds for termination
of parental rights must be proven by clear and convincing evidence. Id. When the trial court
finds that a disputed fact was shown by clear and convincing evidence, we determine whether
the trial court’s finding is clearly erroneous, giving due regard to the opportunity of the trial
court to judge the credibility of the witnesses. Id. In matters involving the welfare of young
children, we give great weight to the trial judge’s personal observations. Maxwell v. Ark.
Dep’t of Human Servs., 90 Ark. App. 223, 205 S.W.3d 801 (2005). Where there are
inconsistences in the testimony, the resolution of those inconsistencies is best left to the trial
judge, who heard and observed the witnesses first-hand. Id.
A heavy burden is placed upon a party seeking to terminate a parental relationship.
Albright v. Ark. Dep’t of Human Servs., 97 Ark. App. 277, __ S.W.3d __ (2007). Termination
of parental rights is an extreme remedy and in derogation of the natural rights of the parents.
Id. Parental rights, however, will not be enforced to the detriment or destruction of the health
and well-being of the child. Id.
The court can terminate parental rights upon a finding of the following:
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(i)(a) 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.
...
(ii) (a) 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.
...
(vii)(a) That other facts 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) (Supp. 2005).
Based upon the circuit court’s findings, the court was correct in holding that grounds
for termination existed and that termination was in the children’s best interests. DHHS made
meaningful attempts to offer reunification services to Russell, and she failed to take
advantage of most of those services. Indeed, she did not achieve the case plan’s intended
result of making her capable of caring for her children. See Wright v. Ark. Dep’t of Human
Servs., 83 Ark. App. 1, 115 S.W.3d 332 (2003).
Although Russell complied with some of the court’s orders, especially as the
termination hearing drew near, “evidence that a parent begins to make improvement as
termination becomes more imminent will not outweigh other evidence demonstrating a
failure to comply and to remedy the situation that caused the children to be removed in the
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first place.” Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 355, 201 S.W.3d
391, 401 (2005). Progress that is made too late to achieve reunification within a reasonable
time from the child’s perspective will not suffice. See Trout v. Dep’t of Human Servs., 359
Ark. 283, 197 S.W.3d 486 (2004); Latham v. Ark. Dep’t of Health & Human Servs., 99 Ark.
App.25, __ S.W.3d __ (2007).
Russell’s second argument is that the trial court erred in finding that DHHS made
reasonable efforts to provide reunification services to her. She argues that DHHS failed to
help her obtain and maintain stable housing and employment and that it should have followed
up on its home-study with her parents in Indiana. We affirm on this point because DHHS
made more than reasonable efforts to reunify Russell with her children.
Russell’s third argument is that the evidence was insufficient to support findings by
clear and convincing evidence that an appropriate permanency plan existed and that the
children were likely to be adopted. When determining whether termination is in the
children’s best interests, the court is to consider, among other factors, whether they are likely
to be adopted if the termination petition is granted. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)
(Repl. 2005). Moreover, an appropriate permanency placement plan must be in place before
the circuit court may consider a petition to terminate parental rights. Ark. Code Ann. § 9-27341(b)(1)(A) (Repl. 2005). Every factor, however, need not be established by clear and
convincing evidence. Davis v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 275, __
S.W.3d __ (2007). We affirm on this point because the trial testimony, as recounted above,
was more than adequate to support the trial court’s findings.
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Affirmed.
M ARSHALL and B AKER, JJ., agree.
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