Harriet Clodfelter v. Arkansas Department of Human Services
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DIVISION II
CA08-891
December 3, 2008
HARRIET CLODFELTER
APPELLANT
v.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
AN APPEAL FROM MISSISSIPPI COUNTY
CIRCUIT COURT
[NO. JV2007-56]
HONORABLE BARBARA HALSEY,
JUDGE
AFFIRMED
Harriet Clodfelter appeals from an order terminating her parental rights to C.C. (born
November 17, 1991), S.C. (born June 2, 1994), and A.C. (born May 3, 1996). She argues that
the Arkansas Department of Human Services (DHS) failed to establish appropriate
permanency-placement plans for the three girls. We affirm.
DHS obtained emergency custody of the children in April 2007, based on a report that
appellant failed to protect them from sexual abuse. The circuit court adjudicated the children
dependent-neglected, and appellant signed a safety plan, agreeing there would be no contact
between the children and the alleged offender, Keith (also known as Kenneth) Roussell. The
children completed a successful trial placement with appellant and returned to her custody on
July 3, 2007. Shortly thereafter, appellant and the children moved to Missouri.
On August 31, 2007, a Missouri juvenile officer sought protective custody of S.C. His
application stated that S.C. and her siblings were in an alcohol-related car accident with
appellant and Kenneth Roussell and that S.C. was found “in a bedroom with Kenneth
Roussell, who is 34 years old, who had no clothing on and stated he had slept with the child.”
DHS obtained the officer’s report and filed an emergency change-of-custody petition in
Mississippi County Circuit Court. The court granted the petition, found probable cause for
the children’s removal, and adjudicated them dependent-neglected. The dependency-neglect
order also relieved DHS from providing reunification services and established the following
permanency-placement goals: “parental rights will be terminated and the goal will be
adoption, with concurrent goals of permanent custody and Another Planned Permanent
Living Arrangement (APPLA).”
At the termination hearing, DHS case worker Karen Phillips testified that C.C., aged
sixteen, and A.C., aged twelve, were together in foster care and doing well. S.C., aged
thirteen, was in a treatment facility and having behavioral problems. Phillips testified that
DHS wanted to work on adoption for S.C. and A.C., and that their adoption was likely. She
further said that DHS recommended a permanent-placement plan for C.C. of APPLA. C.C.
testified that she would like to maintain contact with her mother. S.C. testified that she
wanted to return to her mother, and A.C. testified that she did not want to be adopted.
The circuit court terminated appellant’s parental rights, noting that the children’s desire
to return to their mother and their belief in her ability to care for them was “unrealistic and
contrary to the evidence.” The court approved permanency plans of adoption for S.C. and
A.C., and APPLA for C.C. Appellant now appeals from the termination order, but she does
not challenge the sufficiency of the evidence to support termination. Instead, she argues that
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termination was improper because DHS “failed to establish that it had appropriate
permanency placements for the juveniles.”
A circuit court may consider a termination petition only if it finds there is an
appropriate permanency-placement plan for the juvenile. Ark. Code Ann. § 9-27341(b)(1)(A) (Repl. 2008); Phillips v. Ark. Dep’t of Human Servs., 85 Ark. App. 450, 455, 158
S.W.3d 691, 695 (2004). Appellant argues that DHS’s plan of adoption for S.C. and A.C. is
not appropriate because it is based on little more than the possibility of their being adopted.
However, Karen Phillips testified that the girls’ adoption was likely, and the court considered
the likelihood of adoption in assessing the children’s best interests. Furthermore, evidence of
a permanency-placement plan exists when DHS shows that it is attempting to clear and prepare
the juvenile for permanent placement. See Posey v. Ark. Dep’t of Human Servs., 370 Ark. 500,
508, 262 S.W.3d 159, 166 (2007); Griffen v. Ark. Dep’t of Human Servs., 95 Ark. App. 322,
325, 236 S.W.3d 570, 572 (2006); Moore v. Ark. Dep’t of Human Servs., 95 Ark. App. 138,
141, 234 S.W.3d 883, 885 (2006); see also Ark. Code Ann. § 9-27-341(a)(2) (Repl. 2008)
(stating that the termination statute shall be used “only in cases in which the department is
attempting to clear a juvenile for permanent placement”).
Appellant also argues that termination of her parental rights in C.C. is improper
because C.C.’s permanency-placement plan of APPLA is incompatible with termination. In
2005, the legislature added APPLA to Arkansas Code Annotated section 9-27-338 (Repl.
2008), as a permanency-planning goal in place of “independence,” which had replaced longterm foster care. See Act 1191 of 2005 and Act 1503 of 2001. The statute now gives a circuit
court the option of:
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(c)(6)(A) Authorizing a plan for another planned permanent living arrangement that
shall include a permanent planned living arrangement and addresses the quality of
services, including, but not limited to, independent living services, if age appropriate,
and a plan for the supervision and nurturing the juvenile will receive.
(B) Another planned permanent living arrangement shall be selected only if:
(i) The juvenile cannot be reunited with his or her family;
(ii) Another permanent plan is not available; and
(iii) Either:
(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 interest of the juvenile.
Appellant contends, based on the above statutory language, that APPLA is authorized only
where termination is not in the juvenile’s best interest. Therefore, she claims, termination and
APPLA cannot be used together to form a permanency plan.
Our courts have not yet addressed the implications of APPLA on permanency
planning, and we are unable to do so in this case. Appellant did not argue below that APPLA
was inappropriate in conjunction with termination. It is well-established that we will not
consider an argument raised for the first time on appeal. See Myers v. Ark. Dep’t of Human
Servs., 91 Ark. App. 53, 55, 208 S.W.3d 241, 242 (2005).
Accordingly, we must affirm the order terminating appellant’s parental rights.
Affirmed.
B IRD AND M ARSHALL, JJ., agree.
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