Hay v. Ark. Dep't of Human Servs.
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Cite as 2009 Ark. App. 134 (unpublished)
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-990
Opinion Delivered February
VERA HAY
25, 2009
APPELLANT
APPEAL FROM THE CLEBURNE
COUNTY CIRCUIT COURT,
[NO. JV2005-48]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
HONORABLE STEPHEN CHOATE,
JUDGE
AFFIRMED
COURTNEY HUDSON HENRY, Judge
On June 3, 2008, the Cleburne County Circuit Court terminated appellant Vera Hay’s
parental rights in S.S. (born March 20, 2000), M.H. (born April 14, 2003), and B.M. (born
August 18, 2005). Appellant argues that the court clearly erred in finding that termination
was in the children’s best interest and that grounds for termination existed. We affirm.1
Appellee, the Arkansas Department of Human Services (DHS), opened a protectiveservices case in August 2004 when appellant and her two oldest children, S.S. and M.H.,
were living in Cleburne County and appellant’s husband, Chris Hay, was on active military
duty in Virginia. DHS opened the case based on environmental neglect and appellant’s
failure to schedule medical and dental appointments for herself and her children. In an effort
1
The court also terminated the parental rights of S.S.’s and B.M’s biological fathers
based on their written consent and terminated the parental rights of M.H.’s legal father based
on his lack of contact with the family and unknown whereabouts. Those terminations are not
challenged in this appeal.
Cite as 2009 Ark. App. 134 (unpublished)
to help appellant remedy her conditions, DHS provided her with transportation, referrals,
cleaning supplies, cleaning schedules for her home, and other services.
On April 15, 2005, DHS filed a dependency-neglect petition, avowing that efforts to
assist appellant were futile due to her non-compliance with the case plan; her inability to
follow a cleaning schedule at her home; and her failure to keep medical, dental, and mentalhealth appointments. The circuit court adjudicated the children dependent-neglected on
June 15, 2005, but allowed the children to remain in appellant’s custody. Among other
things, the court ordered appellant to establish and maintain a safe and stable home
environment; to keep medications secured; to maintain a stable source of income; and to
obtain and maintain stable employment.
Approximately six and one-half months later, on January 23, 2006, DHS petitioned
for emergency custody of S.S. and M.H., as well as B.M., who had been born in August
2005. The accompanying affidavit stated that DHS personnel and a Court Appointed Special
Advocate (CASA) visited appellant’s home on January 19, 2006, after learning that the
children were missing school because they had head lice. The affidavit noted the children’s
general lack of hygiene and stated that the two-year-old, M.H., was barefoot and wearing
shorts while playing outside in the winter. The DHS family-service worker took M.H. and
B.M. to the emergency room the next day, and they received treatment for ear infections and
tonsillitis. The affidavit also stated that S.S.’s school held a meeting on January 20, 2006,
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Cite as 2009 Ark. App. 134 (unpublished)
regarding her lack of academic and physical progress, but appellant did not attend the
meeting. The circuit court granted emergency custody to DHS on January 23, 2006.
Thereafter, appellant moved from Cleburne County to Van Buren County. The
Cleburne County office maintained primary responsibility, while the Van Buren County DHS
office assumed a secondary role in the case. The Cleburne County Circuit Court also
continued its jurisdiction of the case. The court held a review hearing in March 2006 and
found that appellant was not in compliance with the case plan or court orders; that she was
unemployed without a stable home; and that she had a live-in boyfriend who tested positive
for marijuana. After an August 2006 review hearing, the trial court found appellant to be in
partial, though undocumented, compliance with the case plan and court orders.
On January 17, 2007, the court entered a “Permanency Planning Review Order.” The
order maintained a goal of reunification only because appellant’s husband, Chris Hay, was
complying with the case plan, as well as court orders, and was making significant progress.
However, the court found that, one year into the case, appellant had not attended therapy
regularly, maintained proper medication management, or maintained stable housing or
transportation.
In March 2007, DHS held a special staffing with appellant, her family, CASA staff,
and the attorney ad litem. Appellant represented that she obtained a home and vehicle;
worked for McDonald’s for a few weeks and then worked for her sister; attended counseling;
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Cite as 2009 Ark. App. 134 (unpublished)
completed parenting classes; kept her home clean and safe; visited her children; and had “no
men in [her] life or in [the] children’s lives for over six months.” Appellant also submitted
a cleaning schedule for her home and plans for the children’s care and schooling. Following
the meeting, DHS and the attorney ad litem were satisfied that they could gradually
reintroduce the children to appellant’s home beginning in April 2007. DHS witnesses said
that they told appellant in no uncertain terms that this was her last chance to prove that she
could take care of the children. Around this time, appellant gave birth to a fourth child.2
At the fifteen-month review hearing in early April 2007, the court found that appellant
was in compliance with the case plan and court orders; that she had made significant and
measurable progress toward achieving the case-plan goals; and that she was diligently
working toward reunification. However, at a subsequent review hearing on July 9, 2007,
CASA volunteer Zandra Sale 3 testified that appellant had made little progress, and Sale
recommended termination of appellant’s parental rights. Sale expressed concern that
appellant continued to become pregnant by different men, none of whom offered support or
contact with the children, and that appellant remained unable to supervise the children or
keep a clean, safe home. Sale said that, when she visited appellant’s home after the first
child began her weekend visits with appellant, Sale saw unsecured medicine bottles and cat
2
Appellant had also been pregnant with twins in mid-2006 but suffered a miscarriage.
3
This witness is also referred to in the record as Zandra Sell.
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Cite as 2009 Ark. App. 134 (unpublished)
feces on the rug in appellant’s bedroom. In addition, Sale detected a strong odor of cat urine
in the bedroom. Sale said that conditions worsened as appellant’s other children were added
to the weekend visitation and that appellant and B.M. lacked personal hygiene. Sale also saw
trash, clutter, and food crumbs scattered throughout the house; urine and feces in the
children’s toilet; and dead spiders and insects in the bathtubs, which appeared as though they
had not been used. Sale took photographs that depicted the unsanitary conditions in the
home, which, according to her, deteriorated even further after April 2007. She also took
pictures in June 2007 of a much more acceptable house after appellant’s family partially
cleaned it. Sale additionally testified that appellant had trouble maintaining utility service
to her home and had her water disconnected as recently as June 5, 2007. She further stated
that, while visiting appellant’s home, she saw S.S., age seven, feeding the one-month-old
baby while unsupervised and observed appellant leaving four-year-old M.H. and two-yearold B.M. alone in the bathtub for three minutes or more.
Based on CASA’s observations and photographs, DHS recommended termination of
appellant’s parental rights. However, Cindy Hunt and Terri Mosley, two DHS workers from
Van Buren County, testified that they had no concerns about the condition of appellant’s
home. They said they had not seen appellant’s house look as bad as depicted in the CASA
photographs, though they had made few, if any, visits when all four children were present.
Appellant’s therapy case manager and the children’s foster parents also said they had no
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Cite as 2009 Ark. App. 134 (unpublished)
concerns about the children being returned to appellant. DHS worker Susan Morrow from
Cleburne County said she personally disagreed with the termination recommendation, even
though she understood that the children would need permanency at some point. Morrow also
stated that appellant could not operate without financial support from her family and that
appellant had a history of things going “down hill” when the children returned home.
At the conclusion of the above testimony, the court continued the hearing until August
8, 2007, then entered an order changing the goal of the case to the termination of parental
rights. The court stated that appellant had been under “the watchful eye” of DHS for over
three years yet did not exhibit sufficient skills to provide a safe and protective atmosphere
for her family. On October 19, 2007, DHS filed a petition to terminate appellant’s parental
rights. The termination hearing was held on December 12, 2007.
Cleburne County DHS worker William Stoecker, who had been involved with the case
from its onset, testified that appellant’s compliance was “very lacking” and that there had
been no substantial time period during which case-plan goals were met and maintained. He
mentioned appellant’s inability to keep her house clean, maintain employment, and keep
appointments with doctors or counselors. Stoecker also said that he received information
from Van Buren County DHS workers that conditions in the home deteriorated when the
children were present.
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Cite as 2009 Ark. App. 134 (unpublished)
Cleburne County DHS worker Sue Morrow testified that DHS recommended
termination of parental rights because appellant could not maintain employment or keep a
clean home environment. She also testified that appellant’s attendance at medical
appointments was sporadic and that there had been “many visitations” with the children when
appellant showed up late or canceled at the last minute. Additionally, Morrow said, appellant
did not maintain the children’s hygiene and failed to brush their teeth during overnight visits.
Morrow said the overnight visits ceased because of concerns about the children’s hygiene
and lack of supervision.
Another Cleburne County DHS worker, Jamie Nesbit, testified that appellant had lost
her job at McDonald’s and remained unemployed. He also said that it was very likely that
the children would be adopted. DHS additionally introduced a transcript of the July 2007
hearing, which included Sale’s testimony that appellant showed poor judgment in having
children with men who were incapable of providing support. A CASA report revealed that
one of the men was incarcerated on drug and firearm charges and that another was on the
central registry for child maltreatment and serving a sentence for sexual indecency with a
child. Sale testified at the termination hearing that both she and DHS had encouraged
appellant to “change her ways” but to no avail. Sale added that appellant lost her second job
at McDonald’s after a few weeks.
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Cite as 2009 Ark. App. 134 (unpublished)
Appellant’s sister, Laura Barden, and her mother, Vera Copeland, testified that
appellant kept a reasonably clean house, though it could become cluttered with children’s
clothes and toys. Copeland said that appellant kept the children for weekend visitation under
less than ideal circumstances because she had given birth to another child in April 2007 and
had some dental work done around that time. Barden testified that she hired appellant from
September 2006 until August 2007 to help her with errands, chores, and child care for $560
per month. According to Barden, appellant’s hours varied, though the pay stayed the same.
Appellant’s job ended when Barden became ill and could no longer pay appellant. Barden
testified that appellant was currently unemployed and could not pay her bills.
Appellant testified that her relationship with the new baby’s father lasted only a week
and that she had not been involved with any men for over sixteen months. However, she
later testified that her husband, Chris Hay, moved home in early 2007 and that they had an
argument because Reggie Bridgeman, the alleged father of the miscarried twins, was visiting
her. Appellant said her house was safe for the children even though it was messy. She also
said that she intended to continue with her individual counseling. Appellant further testified
that she had been employed at McDonald’s but lost that job in August 2006. She then went
to work for her sister until August 2007. After that, she said, she worked at McDonald’s
again but lost that job. Appellant said she was currently looking for a job but could not find
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Cite as 2009 Ark. App. 134 (unpublished)
one. She acknowledged that she was approximately $6,000 behind on child support and said
she still owed about $2,800 on a fine resulting from a criminal matter.
On June 3, 2008, the circuit court entered an order terminating appellant’s parental
rights in three of her children. The court recited the history of the case and made findings
that appellant was unemployed; that she did not maintain a clean home during visitations;
that she did not maintain proper hygiene and dental care for the children; and that her water
was disconnected on several occasions. The court further ruled that the children were likely
to be adopted and that failure to terminate would result in the children languishing in foster
care without achieving permanency. As a ground for termination, the court found that the
children were adjudicated dependent-neglected, continued out of the home for more than
twelve months, and, despite a meaningful effort by DHS to rehabilitate the home and correct
the conditions that caused removal, the conditions were not remedied by appellant.
Appellant now appeals from the termination order. She argues that the circuit court clearly
erred in finding that termination was in the children’s best interest and that grounds for
termination existed.
An order forever terminating parental rights shall be based upon a finding by clear and
convincing evidence that termination is in the child’s best interest, including consideration
of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is
granted; and
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Cite as 2009 Ark. App. 134 (unpublished)
(ii) The potential harm, specifically addressing the effect on the health and safety of
the child, caused by returning the child to the custody of the parent, parents, or
putative parent or parents.
Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2008). The factors in subsections (i) and (ii)
need not be established by clear and convincing evidence. See McFarland v. Ark. Dep’t of
Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). Rather, after consideration of all
factors, the evidence must be clear and convincing that the termination is in the best interest
of the child. Id. Further, subsection (ii) requires the circuit court to consider the potential
harm in returning the children to the parent. The court is not required to find that actual harm
would result or to affirmatively identify a potential harm. Lee v. Ark. Dep’t of Human Servs.,
102 Ark. App. 337, 285 S.W.3d 277 (2008). Instead, the harm analysis should be conducted
in broad terms. See id.
Appellant does not dispute that the children are adoptable and need permanency.
Rather, appellant contends that the circuit court erred in ruling that DHS submitted clear and
convincing evidence that returning the children to her would prove harmful. She argues that
she acquired a stable home and reliable transportation, faithfully attended counseling, and
enjoys the support of her extended family. However, DHS demonstrated that appellant could
not hold a job requiring regular attendance and accountability. The evidence showed that,
when she did attempt to hold such a job, she quickly lost it. Furthermore, the unsanitary
nature of appellant’s home and her inability to maintain the children’s hygiene have remained
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Cite as 2009 Ark. App. 134 (unpublished)
issues since 2004. Appellant received numerous, intensive services from DHS on these
matters, and she produced a plan in early 2007 to remedy her conditions. She was then
granted weekend visitations with the understanding that it was time to prove herself because
the children had been out of her custody for over a year. Yet, appellant was unable to take
advantage of this opportunity. The proof showed that, within weeks after the visitations
began, the conditions in the home and the children’s and appellant’s hygiene rapidly
deteriorated to unsafe and unacceptable levels. The visits ended as a result. Testimony also
revealed that appellant had trouble maintaining water service and had lost service as recently
as June 5, 2007. Under these circumstances, we cannot say that the circuit court clearly erred
in ruling that termination was in the children’s best interest.
Appellant further challenges the testimony regarding the condition of her home. She
argues that Van Buren County DHS workers, who actually saw her home, did not advocate
termination of her parental rights. We observe that the Van Buren County workers made
only one visit to appellant’s home when all four children were present. They did not have
the opportunity to observe the deteriorating conditions noted by the CASA volunteer, who
visited appellant’s home almost every weekend the children were present and provided much
of the information and photographic evidence relied upon by the Cleburne County DHS for
its termination recommendation. For these reasons, the trial court placed greater weight on
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Cite as 2009 Ark. App. 134 (unpublished)
the testimony and recommendations of the Cleburne County DHS workers than the opinions
offered by the workers from Van Buren County.
Next, appellant contends that the circuit court erred in ruling that DHS proved grounds
for termination by clear and convincing evidence. An order forever terminating parental
rights must be based on at least one statutory ground. Ark. Code Ann. § 9-27-341(b)(3)(B)
(Repl. 2008). The ground relied on by the circuit court in this case is as follows:
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.
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2008).
The conditions that caused removal were appellant’s inability to keep a clean, safe
home, maintain the children’s hygiene, and properly supervise the children. As shown by the
testimony of the CASA volunteer and other DHS witnesses, appellant was unable, more than
a year after the children’s removal, to correct these problems once the children were
reintroduced into the home. We therefore cannot say that the circuit court clearly erred in
finding grounds for termination.
Affirmed.
H ART and G LADWIN, JJ., agree.
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