Montgomery v. Ark. Dep't of Human Servs.
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION II
No.
CA08-1027
REBECCA MONTGOMERY,
APPELLANT
Opinion Delivered 28
JANUARY 2009
APPEAL FROM THE JOHNSON
COUNTY CIRCUIT COURT,
[NO. JV-06-86]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR
CHILD,
APPELLEES
HONORABLE KEN D. COKER JR.,
JUDGE
AFFIRMED
D. P. MARSHALL JR. , Judge
The circuit court terminated Rebecca Montgomery’s parental rights to her son,
J.M., in June 2008.
Almost two years earlier, DHS had removed J.M. from
Montgomery’s custody when he was three days old because he was born with opiates
in his system.
The court adjudicated J.M. dependent-neglected.
Thereafter,
Montgomery pleaded no-contest to manslaughter charges stemming from her role in
the death of her two-year-old daughter, B.M. In that case, the court sentenced her
to twenty-four months’ imprisonment and suspended imposition of sentence for an
additional forty-two months. Montgomery will soon be released from prison. Here
she appeals the termination decision, challenging the sufficiency of the evidence.
Montgomery first argues that the court clearly erred in finding that termination
of her parental rights was in J.M.’s best interest.
Ark. Code Ann. § 9-27-
341(b)(3)(A)(i)–(ii) (Repl. 2008). Montgomery concedes that there is a high likelihood
that J.M. will be adopted. Thus the only issue is whether the circuit court erred in
finding that there was a potential for harm to J.M.’s health and safety if he were
returned to Montgomery’s custody. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii).
The circuit court found several circumstances that supported its conclusion that
returning J.M. to Montgomery’s care was potentially harmful. When J.M. was born,
both he and Montgomery had opiates in their systems. Montgomery admitted that she
had been taking Methodone and Oxycodone without a prescription and had stolen
medication from her parents on multiple occasions. Further, in September 2005,
Montgomery’s daughter, B.M., was found dead of a drug overdose in Montgomery’s
bed. Three narcotics (Oxycodone, Methadone, and Darvocet) were present in B.M.’s
system plus alcohol from adult Nyquil, which someone had administered to B.M.
against a doctor’s orders.
At the termination hearing, Montgomery asked the court to place J.M. in her
parents’ custody permanently, subject to her visitation and with a hoped-for return to
her custody at some point. But it was undisputed that Montgomery and her daughter
B.M. were staying with Montgomery’s parents at the time of B.M.’s death. It was also
undisputed that Montgomery’s parents’ prescription medicines were part of the
original problem: Montgomery was abusing those medicines and they were found in
B.M.’s system.
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The circuit court found that Montgomery also exhibited a pattern of mental
instability.
In a fifteen-month period (from June 2004 to September 2005),
Montgomery attempted suicide six times. She testified that she almost succeeded three
of those times. She had also attempted suicide twice before. Montgomery’s counselor
further testified that Montgomery and her parents were co-dependent.
The circuit court concluded that the circumstances Montgomery will face when
she is released from prison are strikingly similar to those that forced her to move in
with her parents in 2005. Though she has applied for more benefits, Montgomery’s
only certain source of income will be an $800 monthly disability check. Also, because
Montgomery has been incarcerated, she has been unable to secure suitable housing.
The circuit court was rightly concerned that these circumstances could force
Montgomery back into her parents’ home and into the environment that led to B.M.’s
death and to J.M.’s removal from Montgomery’s custody.
We note another undisputed and important fact: Montgomery has been fully
cooperative with DHS. She has sought multiple forms of inpatient and outpatient
treatment. She testified that she had been clean for two years, and we commend her
progress. But, as the circuit court noted, for most of that time, Montgomery has been
in an inpatient treatment facility or in prison. Her progress has not yet been tested in
a non-controlled environment. In addition, J.M. has been out of his mother’s care for
all but three days of his life. As the circuit court pointed out, after Montgomery is
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released from prison, it will likely take her months to establish a stable home
environment suitable for J.M. and even longer for the Department to reintroduce the
child to her.
Taking all these facts into consideration, the circuit court’s ruling that returning
J.M. to his mother’s care was potentially harmful was not clearly erroneous. The goals
for J.M. are stability and permanency. Ark. Code Ann. § 9-27-341(a)(3). The circuit
court did not clearly err in concluding that returning J.M. to Montgomery would not
accomplish those goals, but would create further instability and the potential for harm.
Nor did the court clearly err in finding that termination of Montgomery’s parental
rights was in J.M.’s best interest. Meriweather v. Arkansas Dep’t of Health and Human
Services, 98 Ark. App. 328, 331–32, 255 S.W.3d 505, 507 (2007).
Montgomery’s second argument is that the court erred in finding statutory
grounds for termination. In addition to the best-interest finding, the circuit court had
to find at least one statutory ground before terminating Montgomery’s parental rights.
Ark. Code Ann. § 9-27-341(b)(3)(B). Here, the court found two. The first ground
was that J.M. was adjudicated dependent-neglected, had continued out of his mother’s
care for more than twelve months, and despite a meaningful effort by DHS to
rehabilitate Montgomery and correct the problems, Montgomery had failed to remedy
the conditions that caused removal. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a).
The evidence showed that the court adjudicated J.M. dependent-neglected in
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July 2006 and that he had been out of Montgomery’s custody since June 2006.
Montgomery argues, however, that the condition that caused DHS to remove J.M.
from her custody was the discovery of opiates in his system at birth and that the
condition had since been remedied. This is true but not dispositive. The discovery
of opiates in J.M.’s system was just one manifestation of the negative impact of
Montgomery’s prescription drug abuse.
The definition of a dependent-neglected juvenile is “any juvenile who is at
substantial risk of serious harm as a result of the following acts or omissions to the
juvenile . . . : (i) Abandonment; (ii) Abuse; . . . (v) Neglect; (vi) Parental unfitness .
. . .” Ark. Code Ann. § 9-27-303(18)(A) (Repl. 2008). Again, Montgomery
cooperated fully with DHS and participated actively in her case plan. But cooperation
in, and even completion of, the DHS case plan does not answer the termination
question. Wright v. Arkansas Dep’t of Human Services, 83 Ark. App. 1, 7, 115 S.W.3d
332, 335 (2003). “What matters is whether [Montgomery’s] completion of the case
plan achieved the intended result of making her capable of caring for her child.” Ibid.
We see no clear error in the circuit court’s conclusion that she has not achieved that
goal. Meriweather, 98 Ark. App. at 331–32, 255 S.W.3d at 507. Having found no
reversible error in the circuit court’s decision that DHS proved one statutory ground
for termination, we do not address Montgomery’s arguments about the second ground.
Affirmed.
KINARD and GLOVER, JJ., agree.
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