Fortenberry v. Ark. Dep't of Human Servs.
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA09-34
Opinion Delivered
ASHLEY FORTENBERRY
APPELLA N T
April 29, 2009
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT,
[NO. JV 2008-60]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
HONORABLE DAVID CLARK,
JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Ashley Fortenberry, a resident of Mississippi, appeals from the termination of her
parental rights to her daughter, C.F., born March 19, 2007, by the Faulkner County Circuit
Court. She challenges the sufficiency of the evidence to support the trial court’s findings as
to the child’s best interests and grounds (aggravated circumstances). We affirm the trial
court’s decision.
This case began with the death of C.F.’s two-year-old sister, O.M., on February 4,
2008, while the girls, Fortenberry, and her husband, Shawn Fortenberry, were visiting
relatives in Arkansas. DHS filed a petition for emergency custody of C.F. on the basis of the
following affidavit:
On February 4, 2008 the on call worker received a call from the State Police asking
for a safety response, Stating that there was a 2 year old child who died on her way
to Children’s Hospital. The 2 year old, [O.M.] who resided with her parents Shawn
Fortenberry and Ashley Moore, sister C.F., were visiting their uncle James
Fortenberry in Vilonia. [O.M.] was covered in bruises on her abdomen, face and
forehead and just about everywhere, old and new bruises. [O.M.’s] heart stop beating
on the way to Children’s Hospital she was pronounced dead upon her arrival. The
safety response was requested for the 10 month old sibling C.F. (3/19/07).
Shawn was arrested for O.M.’s murder and taken to jail. The circuit court granted
DHS’s emergency petition and set a probable-cause hearing on February 12, 2008. The
parties stipulated that probable cause existed at the time the hold was placed on C.F., and
reserved the issue of the truth of the allegations for the adjudication hearing. The court
directed DHS to contact the Department of Human Services in Mississippi about accepting
this case. The Mississippi agency declined to do so.
Fortenberry appeared with her attorney at the adjudication hearing. In the resulting
order entered on June 20, 2008, the court made the following findings:
4. . . . That the juvenile was subject to abuse and Neglect as defined in the
Arkansas Juvenile Code. Based on the testimony of the medical examiner, Dr. Kokes,
and the autopsy report there were at least two specific instances of physical abuse to
the sibling, [O.M.]. There was an earlier injury to the abdomen and an acute head
injury which was the cause of death of the sibling, [O.M.]. These injuries were found
to be non-accidental injuries. The parents took no steps to alleviate or mitigate the
injuries cause by these traumas, in that they did not take the juvenile to the hospital,
doctor, or any other treatment after the first injury to the abdomen. Bruising on the
sibling would have been clearly visible to the parents. The parents did not remove the
juvenile from an environment that may have caused such harm. The Court finds that
even excluding the testimony of the medical examiner and the autopsy report, that
the testimony of Dr. Skinner supports the finding of abuse and neglect. Dr. Skinner
also discussed two episodes of trauma that occurred to the body, specifically the head
and abdomen, as well as the fact that bruising on the sibling was clearly visible. Based
on his testimony alone, the Court could find that the parents inflicted the injuries and
knew about the injuries or that the parents should have known about the injuries.
This conclusion is heightened by the fact that the parents never called 911 or asked
for assistance in getting to the hospital; they just drove despite not having knowledge
of the hospital location.
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The Court finds that the testimony of James Fortenberry and Jessica Soto was
conflicting. The Court finds that James Fortenberry had zero credibility in his
testimony. Even if there is truth to the story of the hole in the floor and that [O.M.]
fell through that hole, the parent’s remedy was to put a children’s walker over the
hole. The Court could find inadequate supervision based on this information. The
testimony of Louis Ross was that the mom slapped the child in the mouth and told
her she was going to beat her. This testimony again supports a finding of abuse.
5. The Court makes a finding Aggravated Circumstances as to both of the
parents. The Court finds that they acted in concert to cause the injuries to the
juvenile’s sibling or that they did not take steps to prevent the injuries and protect the
juvenile knowing that someone was causing the injuries. These injuries resulted in the
death of the juvenile’s sibling.
The court set concurrent goals of reunification and adoption.
DHS filed a petition for termination of both parents’ parental rights on August 6,
2008, with aggravated circumstances listed as one of the grounds. Shawn consented to
termination and is not a party to this appeal.
At the termination hearing held on September 23, 2008, the DHS caseworker, Sharon
Shields, and the CASA advocate, Carol Gagle, testified for DHS. Fortenberry testified on her
own behalf. The trial court entered an order terminating Fortenberry’s parental rights on
October 16, 2008, making the following written findings:
4. The Court finds it to be contrary to the child’s best interests, health and
safety, and welfare to return her to the parental care and custody of her parents and
further finds that the Department of Human Services has proven by clear and
convincing evidence that by order entered of record on June 20, 2008 this court
found aggravated circumstances exist as to both parents specifically “that they acted
in concert to cause the injuries to the juvenile’s sibling or that they did not take steps
to prevent the injuries and protect the juvenile knowing that someone was causing
the injuries. These injuries resulted in the death of the juvenile’s sibling.” The court
further finds that Ashley Fortenberry shows only sadness and no remorse regarding the
death of one of her children and the taking into state custody of the child who is the
subject of this action. She has refused to take any personal responsibility for the events
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that resulted in the filing of the dependency neglect action and although she seems
now to blame her husband for the death of the juvenile’s sibling (her child) she has
not filed for divorce or taken any legal steps to separate herself from him. The finding
of aggravated circumstances is sufficient ground for termination and the other findings
set out above are sufficient to find that the return to the mother of the juvenile would
pose a serious risk of serious harm or death to the juvenile.
On appeal, Fortenberry disputes the sufficiency of the evidence as to best interests and
grounds for termination. She argues that the circuit court’s finding from the bench that C.F.
was adoptable was inadequate because it was not reduced to writing. We disagree. Arkansas
Code Annotated § 9-27-341(b)(3) (Repl. 2008) requires the termination decision to be “based
upon a finding by clear and convincing evidence” that termination “is in the child’s best
interest,” and that the child’s likelihood of adoption and the potential harm of return to the
parent be considered. The statute does not, however, state that the “adoptability” finding
must be in writing. At the conclusion of the trial, the circuit court stated that the child was
adoptable, so it clearly complied with the statute.
Further, DHS presented sufficient evidence that C.F. was adoptable and that her return
to Fortenberry would subject her to a high level of potential harm. The termination statute
does not require DHS to prove by clear and convincing evidence that the child is adoptable
and that there would be potential harm in returning her to the parent; rather, the court must
consider those factors. Davis v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 275, 254
S.W.3d 762 (2007). After consideration of all factors, the evidence must be clear and
convincing that the termination is in the best interest of the child. See Jones-Lee v. Ark. Dep't
of Human Servs., __ Ark. App. __, __ S.W.3d __ (Mar. 4, 2009); Lee v. Ark. Dep't of Human
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Servs., 102 Ark. App. 337, __ S.W.3d __ (2008); McFarland v. Ark. Dep't of Human Servs., 91
Ark. App. 323, 210 S.W.3d 143 (2005).
Ms. Shields testified that, given C.F.’s young age, the likelihood of her being adopted
was “very high,” even though she has some developmental delays. Although Ms. Shields is
not an adoption specialist and admitted that she had not “run [C.F.] through the system” to
find potential adoptive parents, her five years’ experience as a family-service worker qualified
her to make that recommendation. The termination statute does not require that an adoption
specialist testify at the termination hearing or that the process of permanent placement be
concluded by then.
Additionally, the harm referred to in the termination statute is “potential” harm; the
circuit court is not required to find that actual harm would result or to affirmatively identify
a potential harm. Lee, supra. The harm analysis is to be conducted in broad terms. Id. The
evidence discussed below, which demonstrated that C.F.’s return to Fortenberry would
subject her to potential harm, also supported grounds for termination.
In challenging the trial court’s finding of aggravated circumstances, Fortenberry asserts
that she has “learned a hard lesson by losing her older daughter,” and that she is now “ready
and able to parent and protect . . . C.F. . . . .” She points out that she completed parenting
classes; that she regularly attended counseling, including therapy directed to the issue of
domestic violence; that she faithfully attended visitation with C.F.; and that she secured a job,
which she would begin upon her return to Mississippi. There is no question that Fortenberry
did take several actions to improve her situation. Nevertheless, even full completion of a case
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plan may not defeat a petition to terminate parental rights. Lee, supra. What matters is whether
completion of the case plan achieved the intended result of making the parent capable of
caring for the child. Id. As explained below, the evidence clearly demonstrated that
Fortenberry is not yet capable of caring for C.F.
Fortenberry also asserts that there was no evidence that aggravated circumstances were
present and that the court’s findings did not conform with the statutory requirements of
aggravated circumstances. This argument lacks merit. In addition to finding that termination
of parental rights was in C.F.’s best interest, the court also had to find that DHS proved one
of the statutory grounds listed in Ark. Code Ann. § 9-27-341(b)(3)(B). In this case, the court
found that Fortenberry had subjected a child to aggravated circumstances. The definition of
“aggravated circumstances” includes “(i) 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. . . .” See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i).
We hold that DHS established that Fortenberry had subjected C.F.’s sibling to extreme
or repeated cruelty, and that the trial court’s finding of aggravated circumstances in the
adjudication order, from which she took no appeal, adequately satisfied the requirements of
the termination statute. Fortenberry places unwarranted importance on the facts that, at the
time of the hearing, she had not lost custody of her infant son, who was born during this
proceeding, and that she had not been arrested in connection with O.M.’s death. These facts
are insignificant in light of the evidence indicating that Fortenberry either inflicted O.M.’s
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injuries or allowed her husband to inflict them and that she admitted to the police that she had
whipped O.M. for misbehaving. The fact that Fortenberry had not been charged in
connection with O.M.’s death is irrelevant in light of the undisputed evidence that, when
O.M. died of her head injury, she was covered in fresh and older bruises, of which
Fortenberry should have been aware. In a case such as this, we are reminded of the following
quote from Wright v. Ark. Dep’t of Human Servs., 83 Ark. App. 1, 6, 115 S.W.3d 332, 335
(2003):
Appellant is badly mistaken in her belief that her parental rights cannot be
terminated because she complied with the case plan and did not personally injure her
child. She had a far greater duty to the child than she recognizes. It is not enough for
her to refrain from personally harming the child; instead, it is her duty to take
affirmative steps to protect the child from harm.
In Wright, we relied upon the following quote from Jones v. Jones, 13 Ark. App. 102,
108, 680 S.W.2d 118, 121 (1984) (citations omitted):
The rights of parents are not proprietary and are subject to their related duty to care
for and protect the child and the law secures their preferential rights only so long as
they discharge their obligations. . . . The unfitness for which this preferential right to
custody may be forfeited can result from a parental failure to discharge any of the
correlated duties of parenthood. In [State v. Grisby, 38 Ark. 406 (1882)], it was stated
that this preference for natural parents is based on a presumption that they will take
care of their children, bring them up properly and treat them with kindness and
affection, and when that presumption has been dissipated chancery will interfere and
place the child where those parental duties will be discharged by another.
In Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 368, 43 S.W.3d 196, 199
(2001), we rejected a similar argument:
We do not reach appellant’s argument that ADHS failed to establish any abuse
to Logan. Section 9-27-303(15)(a) explicitly states that a dependent-neglected child
is one at risk of serious harm from an unfit parent. Parental unfitness is not necessarily
predicated upon the parent’s causing some direct injury to the child in question. Such
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a construction of the law would fly in the face of the General Assembly’s expressed
purpose of protecting dependent-neglected children and making those children’s health
and safety the juvenile code’s paramount concern. To require Logan to suffer the same
fate as his older sister before obtaining the protection of the state would be tragic and
cruel.
Ms. Shields testified that she believed that it was in C.F.’s best interest that
Fortenberry’s parental rights be terminated, based upon the following: it was unknown
whether she or Shawn, or both, had caused the injuries to O.M.; she had not accepted any
responsibility for, or acknowledged the “horrendous” nature of, what had happened to O.M.;
she had shown no emotion or remorse about O.M.’s death; and Ms. Shields had seen
Fortenberry react to C.F.’s behavior with “a spark of anger” during visitation. Ms. Gagle also
recommended that Fortenberry’s parental rights be terminated because of her failure to protect
O.M.
Fortenberry testified that, although Shawn was mean to her, she had no idea that he
would ever be mean to the children, and that she had no idea what was happening to O.M.
She said: “I saw the bruises on her but kids get bruises all the time.” When the trial court
asked her directly what had happened to O.M., she responded: “I’m not sure.” Although
Fortenberry testified that she was remorseful, she could not explain to the trial court why she
was remorseful. She said that she was sad because her daughter had been taken away, and she
missed her. However, when the trial court asked “Do you understand what the word remorse
means?” she replied, “I guess not.” She also said that she had instructed her attorney to file
for divorce from Shawn, but admitted that it had not yet been filed.
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Whether Fortenberry killed O.M., or helped Shawn kill her, or simply allowed him
to kill the child, we hold that Fortenberry is an unfit parent and that the trial court reached
the right decision in severing her parental bonds with C.F.
Affirmed.
G LOVER and H ENRY, JJ., agree.
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