Davis v. ADHS
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Cite as 2010 Ark. App. 469
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-702
Opinion Delivered
KAREN DAVIS
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR
CHILDREN
APPELLEES
JUNE 2, 2010
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. JN-07-2055]
HONORABLE JOYCE WILLIAMS
WARREN, JUDGE
AFFIRMED
M. MICHAEL KINARD, Judge
Karen Davis appeals from the order of the Pulaski County Circuit Court terminating
her parental rights to five of her children. This is the second time this case has been before
us. Counsel for appellant initially filed a no-merit brief and motion to withdraw pursuant to
Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004). This court
ordered that the case be rebriefed because counsel for appellant failed to discuss several rulings
that were adverse to appellant. See Davis v. Ark. Dep’t of Human Servs., 2010 Ark. App. 88.
The case is now back before this court in merit form. On appeal, appellant argues that the
trial court erred by refusing to allow more time for the maternal grandmother to remedy
deficiencies identified in her home study or to explore less restrictive placement of the
children through mediation. Appellant also argues that the decision of the circuit court to
Cite as 2010 Ark. App. 469
terminate her parental rights was not in her children’s best interests. We affirm the order of
the trial court terminating appellant’s parental rights.
On November 27, 2007, the Arkansas Department of Human Services (DHS) filed a
petition for ex parte emergency custody and dependency/neglect. In the affidavits that
accompanied the petition, the DHS family services workers stated that a protective services
case was open on the family in Pulaski County. Appellant had a history of drug use. In
November 2007, appellant was a patient in the detox program at Arkansas Cares. On or
about November 24, 2007, appellant left the Arkansas Cares facility with three of her
children. The other two were visiting their paternal grandmother in Texas. The three
children were transported back to the facility by Arkansas Cares staff and appellant later
returned. Later that afternoon, appellant again left the facility, this time without the children.
DHS exercised a seventy-two-hour hold on the three children who were present on
November 24, 2007, and a second hold on the two remaining children when they returned
to Arkansas on November 27, 2007. On December 4, 2007, the circuit court entered an
order finding that DHS had probable cause to take the children into custody. The parties
stipulated that the facts contained in the affidavits were true, and the circuit court entered an
order finding that the children were dependent-neglected on January 17, 2008. That
determination was based upon abandonment and parental unfitness by appellant.
On January 23, 2008, the trial court entered an order stating that the goal of the case
was reunification, with a concurrent goal of permanent custody with a relative. Appellant was
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ordered to do the following: 1) participate in individual counseling; 2) refrain from the use
of illegal drugs or alcohol; 3) enter and complete in-patient treatment for substance abuse; 4)
submit to random drug screens; 5) attend AA/NA meetings; 6) maintain stable housing and
employment. In a review order entered April 17, 2008, the circuit court continued custody
of the children with DHS and stated that appellant had failed to comply with the case plan.
The court noted that appellant admitted to continued drug use. The court determined that
the children’s father had partially complied with the case plan. Appellant was again ordered
to enter and complete residential drug treatment. Following permanency planning hearings
held on October 1, 2008, and November 4, 2008, the circuit court entered an order on
November 24, 2008, that continued custody of the children with DHS and changed the goal
of the case to termination of parental rights and adoption. The court found that both parents
had partially complied with the case plan. At the hearing, appellant testified to continued
drug use and the father tested positive for drugs. Both parents stated that they wanted the
children’s grandmothers to have custody, but the court found that the permanency goal of
obtaining a permanent custodian with either of the grandmothers was not appropriate.
On December 10, 2008, DHS filed a petition for termination of parental rights. In the
petition, DHS alleged that the children had been adjudicated dependent-neglected and
continued out of the custody of appellant for twelve months and, despite a meaningful effort
by DHS to rehabilitate the parent and correct the conditions that caused the removal, those
conditions had not been remedied by appellant. On February 20, 2009, counsel for appellant
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filed a motion for continuance, for mediation, and to shorten response time. The court
denied the motion but continued the hearing because the father’s attorney could not attend.
At the beginning of the termination hearing, the court dismissed the father from the
petition because the children were not removed from his custody and DHS failed to plead a
ground upon which his rights could be terminated. During the hearing, an adoption specialist
for DHS testified that the children were adoptable, although she stated that the two oldest
children did not want to be adopted. Tabitha Watson, the family-services worker assigned
to the case, testified that appellant tested positive for cocaine on December 19, 2008, and
failed to give DHS any indication of where she was living or her employment status.
According to Watson, appellant was offered weekly visitation, but she only visited the
children seven times between December 12, 2007, and February 20, 2009. Watson further
stated that the home study for the maternal grandmother, Becki McConnell, was denied
because her husband had a prior allegation of child abuse and stated in the study that he did
not want the children to live in his home. Watson testified that DHS was also concerned
about McConnell’s financial stability if she divorced her husband and he moved out of the
home. According to Watson, McConnell was asked in May 2008 to begin the home study
process, but she did not give approval to begin the process until August 2008. Watson did
give an opinion, however, that McConnell’s home would be the best place for the children
if she were able to work out the problems with the home. DHS’s recommendation was that
appellant’s parental rights be terminated and that the children be placed for adoption. Watson
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testified that she did not believe that splitting the children up would be in their best interest.
Watson stated that the oldest child wanted to live with a family member and stated that he
did not “feel welcome” living with strangers. Darryl Capps, the Court Appointed Special
Advocates (CASA) supervisor, testified that it was CASA’s recommendation to terminate
parental rights.
Appellant testified that she was living in a motel room. She stated that she believed
the best place for her children to be was with her mother. She further testified that she had
not visited the children because she knew she would be high on drugs. Appellant stated that
her mother told her that she had filed for divorce from her husband, but appellant did not
know the exact date of the filing.
At the conclusion of the hearing, the circuit court found that the grounds alleged for
termination had been proven by clear and convincing evidence and granted the petition. On
April 7, 2009, the circuit court entered a written order granting the petition to terminate
appellant’s parental rights. Appellant filed a timely notice of appeal on April 16, 2009.
An order forever terminating parental rights must be based on clear and convincing
evidence that termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A)
(Supp. 2009). Additionally, DHS must prove at least one statutory ground for termination
by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2009). Our
statute provides, as a ground for termination, that the child has been adjudicated
dependent-neglected and has continued out of the custody of the parent for twelve months
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and, despite a meaningful effort by DHS 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) (Supp. 2009). We do not reverse a termination order unless
the circuit court’s findings were clearly erroneous. Meriweather v. Ark. Dep’t of Health &
Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007).
Appellant’s first point on appeal is that the circuit court’s “refusal to either allow
additional time for the children’s maternal grandmother to remedy the deficiencies in the
denied home study, or to allow exploration of the less restrictive placement through
mediation, was error where the termination petition for the children’s father was dismissed,
thus alleviating the need to immediately terminate the mother’s parental rights which resulted
in severing the grandmother’s standing to further pursue placement of the children.” At no
point in her brief does appellant argue that the statutory grounds for termination of her rights
were not proven by clear and convincing evidence. Instead, she is arguing that the trial court
erred in finding that termination was in the children’s best interests because it would keep her
mother from being considered a placement for the children. Appellant’s testimony that she
was living in a hotel and continuing to use drugs well over a year after her children were
taken into custody makes it clear that the children would be subjected to a substantial risk of
harm were they to be returned to her custody.
In making her argument that her parental rights should have been kept intact, appellant
relies upon Arkansas Code Annotated section 9-27-355(c)(1) (Repl. 2009) which states that
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“a relative of a juvenile placed in the custody of the department shall be given preferential
consideration for placement if the relative caregiver meets all relevant child protection
standards and it is in the juvenile’s best interest to be placed with the relative caregiver.”
Appellant’s argument is misplaced. There is no comparable language in section 9-27-341,
which is the termination statute. Section 9-27-355 concerns an initial placement of a juvenile
after that juvenile is taken into DHS custody, not a placement when termination of rights has
been requested.
In addition, appellant’s argument ignores the evidence produced at the hearing that her
mother’s home does not meet all relevant child-protection standards and that placement in
the maternal grandmother’s home would not be in the children’s best interests. At the time
of the termination hearing, Becki McConnell was married to a man who, in addition to
indicating that he did not want the children, had previously been accused of child
maltreatment. The only evidence at the hearing that McConnell had taken any steps at all
to remove her husband from her home was appellant’s testimony that her mother told her
that she had filed for divorce. There was no other proof that a divorce filing had been made,
nor was there any indication when it was filed or how long the process would take.
Even if McConnell sought and were granted a divorce, there was evidence presented
indicating that she might not be able to care for the children financially. McConnell’s home
study showed that she had a personal monthly income of $1900, and that she and her husband
had total monthly expenses of $3262. Even accounting for Mr. McConnell’s share of the
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monthly expenses, it still appears that McConnell might be unable to care for a sibling group
of five. Finally, there is the fact that, although the children had been in custody since
November 2007, McConnell only consented to beginning the home study process in August
2008, almost nine months later. All of this evidence demonstrates that the circuit court’s
decision to terminate appellant’s rights instead of subjecting the children to further potential
instability by waiting to see if McConnell would eventually be an appropriate placement was
not clearly erroneous. In addition, appellant has failed to demonstrate how the termination
of her parental rights would completely remove the possibility that her mother could be a
placement for the child as there is no indication that McConnell would be ineligible to adopt
the children if she met all of the necessary requirements.
Appellant’s second point on appeal is that the trial court erred in terminating her
parental rights because it was in the children’s best interests that they remain together as a
“cohesive unit for placement.” The testimony at the hearing was that it would be in the best
interests of the children to be kept together. Appellant argues that the evidence showed that
the children would not be able to be adopted together, and that this made termination of her
rights not in her children’s best interests.
The adoptability of the children is but one factor for the trial court to consider in
determining whether to terminate parental rights. See McFarland v. Ark. Dep’t of Human
Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005). The testimony indicated that the children
would likely be adopted, and, although DHS could not point to a specific placement for the
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children, it indicated that there were a number of families willing to consider adopting the
children. As shown above, keeping the children with appellant would likely expose them to
harm. In addition, it was not clear from the evidence that appellant’s mother would be a
suitable placement within a time frame suitable for the children, if at all. Therefore, there was
no evidence presented indicating that keeping appellant’s parental rights intact is any more
likely to allow the children to stay together than termination. The trial court’s decision to
terminate was not clearly erroneous.
Affirmed.
BAKER and BROWN, JJ., agree.
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