Timmons v. ADHS
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Cite as 2010 Ark. App. 419
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA10-71
Opinion Delivered MAY 12, 2010
GYPSY TIMMONS
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES, and MINOR
CHILD
APPELLEES
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT
[JV-2008-257]
HONORABLE MARK HEWETT,
JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Gypsy Timmons appeals the November 2, 2009 order of the Sebastian County Circuit
Court that terminated her parental rights to her twenty-two-month-old child. The order of
the circuit court stated that Timmons’s parental rights were terminated pursuant to the
provisions of Ark. Code Ann. § 9-27-341 and found that it was contrary to the juvenile’s best
interests, health and safety, and welfare to return her to Timmons’s parental care and custody.
Additionally, the order noted the Choctaw Nation’s concurrence that the requirements had
been met under the Indian Child Welfare Act (ICWA) and noted that the expert of the
Choctaw Nation of Oklahoma recommended termination of parental rights.1
Timmons brings one point on appeal, challenging the sufficiency of the evidence to
1
The ICWA is codified at 25 U.S.C. § 1901 et seq.
Cite as 2010 Ark. App. 419
support the circuit court’s finding that terminating her parental rights was in her child’s best
interest under Arkansas law. Her arguments focus on the trial court’s findings that she had
ongoing drug problems and that the child would be at risk of psychological and physical harm
if returned to her. We affirm.
Arkansas law requires that a termination of parental rights be based upon a finding by
clear and convincing evidence that it is in the best interest of the juvenile, including
consideration of i) the likelihood that the juvenile will be adopted if the termination petition
is granted; and ii) the potential harm that returning the child to the custody of the parent
would cause, specifically addressing the effect on the health and safety of the child. Ark. Code
Ann. § 9-27-341(b)(3)(A) (Repl. 2009). There must also be a finding by clear and convincing
evidence of one or more grounds under subsection (b)(3)(B), including:
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and
has continued to be 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.
....
(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12)
months, and the parent has willfully failed to provide significant material support in
accordance with the parent’s means or to maintain meaningful contact with the
juvenile.
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition
for dependency-neglect that demonstrate that return of the juvenile to the custody of
the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the
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offer of appropriate family services, the parent has manifested the incapacity or
indifference to remedy the subsequent issues or factors or rehabilitate the parent’s
circumstances that prevent return of the juvenile to the custody of the parent.
Ark. Code Ann. § 9-27-341(b)(3)(B) (Repl. 2009).
The circuit court announced its findings in this case “beyond a reasonable doubt.”
First, it found that returning Timmons’s child to her parental care and custody was contrary
to the child’s best interests, health and safety, and welfare. We summarize further findings by
the court that are pertinent to the arguments Timmons now makes:
a) the juvenile had been out of the mother’s home and custody for seventeen and onehalf months, approximately eighty percent of the child’s life;
b) no evidence indicated that, if given additional time, the child could be safely
returned to a parent within a reasonable period of time as viewed from the perspective
of the juvenile;
c) throughout the case, DHS had made reasonable and active efforts to provide
Timmons with services designed to rehabilitate herself, the circumstances that caused
the child to be placed in foster case, and circumstances that had subsequently arisen
that prevented the child from being safely returned to the mother;
d) although Timmons partially complied with the court’s orders and the case plan at
one point, she did not have stable housing–living in at least ten places the past year and
a half, acquiring her current residence a month ago, and spending only one night
there; was recommended for residential, not out-patient, drug treatment; entered
residential treatment twice but left both times before completion; had positive drug
screens after completing an out-patient program; she was incarcerated twice for new
behaviors since the case began; did not have stable employment or income; did not
have a driver’s license or reliable means of transportation; was currently pregnant by
a man who was not contributing to her stability; had not paid child support as ordered
and testified that her total income for the first nine months of the year was
approximately $2000; and had not attended counseling as recommended by her
psychological evaluation and ordered by the court;
....
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h) the juvenile would be at risk of harm both psychologically and physically if returned
to a parent; and
j) the juvenile was adoptable, and foster parents in her kinship foster placement were
interested in her adoption.
The court also found that DHS had made reasonable and active efforts throughout the case
to reunite the family. On these findings, Timmons’s parental rights were terminated.
Burden of Proof and Standard of Review
The circuit court employed a “beyond a reasonable doubt” burden to findings a)–j)
and others that supported termination of parental rights under Ark. Code Ann. § 9-27-341
rather than the “clear and convincing” burden required by the Code. A separate provision
of the ICWA prohibits termination of parental rights to an Indian child “in the absence of a
determination, supported by evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, to determine that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or physical damage to the child.”
25 U.S.C.A. § 1912(f) (West 2006).
In Sartin v. State, 2010 Ark. 16, ___ S.W.3d ___, our supreme court differentiated the
standards of review in actions terminating parental rights under Arkansas law, where disputed
facts must be proven by clear and convincing evidence, and in criminal actions, which require
proof beyond a reasonable doubt.
Sartin noted that parental-rights-termination cases
determined under Arkansas law are reviewed de novo and are overturned only if the court’s
decision that a disputed fact was established by clear and convincing evidence was clearly
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erroneous, but questions in criminal actions are reviewed under the more deferential
substantial-evidence standard, considering only evidence that supports a conviction and
overturning it only if supporting substantial evidence is lacking. 2010 Ark. 16, at 6, ___
S.W.3d at ____. Sartin did not involve the termination of parental rights to an Indian child.
Arkansas has not applied the substantial-evidence standard of review in an ICWA case,
as has been done in other jurisdictions. Compare In re Interest of A.P., 961 P.2d 706 (Kan. Ct.
App. 1998) (employing same standard of review to 25 U.S.C. § 1912(f)’s requirement of
“beyond a reasonable doubt” as that used to review sufficiency of the evidence in a criminal
case) with Burks v. Ark. Dep’t of Human Servs., 76 Ark. App. 71, 61 S.W.3d 184 (2001)
(acknowledging different burdens of proof under state termination-of-parental-rights statutes
and 25 U.S.C. § 1912(f), and holding that the chancellor did not err in finding DHS had
proven “all the necessary elements of the case beyond a reasonable doubt”). Nor have we
specified that a dual burden of proof is required in a proceeding for termination of parental
rights that involves the ICWA. Cf. Valerie M. v. Arizona Dep’t of Econ. Sec., 198 P.3d 1203,
1207 (Ariz. 2009) (opining that Congress did not intend to apply the reasonable-doubt
standard to state-law findings and noting that almost every state court considering the issue
has concluded “ICWA allows states to specify the standard of proof for state-law findings
distinct from the findings required by ICWA”); In re Interest of D.S.P., 480 N.W.2d 234 (Wis.
1992) (citing Matter of J.R.B., 715 P.2d 1170, 1172 (Alaska 1986) for conclusion that dual
burden of proof was appropriate if mandated by the ICWA and state law, and holding that
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the federal “beyond reasonable doubt” standard was not required to prove abandonment
under Wisconsin law); Matter of Bluebird, 411 S.E.2d 820 (N.C. Ct. App. 1992) (dual burden
of proof for state and federal provisions must be satisfied separately: state’s grounds for
termination must be supported by clear and convincing evidence, while federal law requires
evidence justifying termination beyond a reasonable doubt).
Timmons challenges only findings under state law. Although the circuit court made
these findings under the beyond-a-reasonable-doubt burden of proof, Timmons properly
recites that the required burden of proof is clear and convincing evidence. We are able to
proceed to the merits of her arguments because the appropriate standard of proof was
necessarily encompassed by the circuit court’s employment of the higher burden. We think,
however, that the better practice for the circuit court would have been to employ a dual
burden of proof to separate sets of findings under Ark. Code Ann. § 9-27-341 and 25
U.S.C.A. § 1912(f).
Point on Appeal
Timmons contends that the circuit court erred in finding that it was in her child’s best
interest to terminate her parental rights.
She disputes its finding that DHS proved its
allegations under Ark. Code Ann. § 9-27-341 by clear and convincing evidence, challenging
the trial court’s determination that potential harm to the child’s health and safety could be
caused by returning her to Timmons’s custody.
On April 6, 2008, DHS assumed an emergency, seventy-two-hour hold of Timmons’s
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four-month-old child because the child had no other legal caregiver when the mother was
arrested and there was concern about the child’s physical condition. The supporting affidavit
stated that Timmons was arrested for fraudulent use of a credit card; she tested positive for
methamphetamine and THC, claimed to be taking Doracets and Loratabs, but did not
produce prescriptions; and the child was very dirty, had soiled and stained clothing, and was
diagnosed with an upper respiratory infection after being taken to the emergency room for
a fever and cough. The court issued an order for emergency custody and set a probable-cause
hearing for April 15, 2008. In the probable-cause order of April 18, 2008, the court found
that the emergency conditions that necessitated removal of the child from the mother’s
custody continued and that it was contrary to the child’s welfare to be returned to the home.
A dependency-neglect hearing was conducted on June 2, 2008. By order of October
10, 2008, Timmons’s child was adjudicated dependent-neglected as a result of environmental
neglect and her mother’s abuse of drugs, and the goal of reunification was established.
Timmons was ordered to obtain and maintain stable and appropriate housing, employment,
income, and transportation; complete parenting classes and obtain her driver’s license; undergo
a psychological evaluation and any recommended treatment; submit to a drug and alcohol
assessment and to any recommended follow-up treatment; submit to random drug screens
requested by DHS; comply with terms and conditions of her criminal sentence; visit her child
regularly; and pay $25 weekly child support.
In a permanency planning order of April 7, 2009, the goal of the case was changed
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from reunification to termination of parental rights and adoption. The court found that
Timmons had not complied with the case plan and orders of the court: she had not
successfully rehabilitated herself regarding her drug addiction; lacked stable housing,
employment, income, and transportation; and had not completed counseling or parenting
classes.
The termination hearing was held on September 25, 2009. There was testimony that
Timmons failed to regularly attend counseling or to successfully complete counseling, took
a year to finish nine weeks of parenting classes, and failed to undergo recommended in-patient
drug treatment. Her caseworker suspected that she continued to use drugs. Three days
before the hearing, seven-months-pregnant Timmons tested positive for methamphetamine
at DHS, and the test was sent off for further testing. She requested a separate test from her
probation officer because of the initial result, and that test also was positive for
methamphetamine. She continued to take Prozac and Hydrocodone. She testified that she
was arrested twice after the case began, was incarcerated fifteen days on the credit-card charge,
violated the term of her probation that she report her addresses, had become pregnant twice,
and owed almost $3000 on criminal fines. She admitted that she did not have her own
transportation, her housing and income were not stable, her employment had been almost nil,
she “got $324 a month social security” but it came from her father, and she had made only
one child-support payment. She denied knowing previously that her psychological evaluation
showed that she was at a high risk of abusing a child. She claimed that she was working on
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step three of a twelve-step program, not an AA/NA program, and she was not sure what her
first two steps were.
Arguments on Appeal
Timmons first points to the circuit court’s oral finding, pronounced at the end of the
termination hearing, that she had “on-going drug . . . primarily drug issues” that would result
in risk of both psychological and physical harm to the child if she were returned to Timmons.
She argues that she had remedied her drug problem, as shown by her completion of an outpatient treatment program and by the lack of positive drug screens for the year preceding this
final hearing. She disputes the court’s written finding that she lacked reliable means of
transportation. She argues that her ability to provide a safe and stable home could not be
proven by her failure to complete the case plan regarding drug issues and transportation, or
by her subsequent arrests, failure to pay child support, or failure to complete counseling. She
concludes that she remedied the issues that caused the removal of her child.
Evidence showed that separate drug tests by DHS and Timmons’s probation officer
were positive for methamphetamine in the days before the termination hearing. She testified
that she did not complete in-patient drug treatment, had not attended a recognized treatment
program, and did not know the early steps of the program she claimed to be working on.
The trial court noted that Timmons left recommended residential treatment both times she
entered it and that she had positive drug screens after she completed an out-patient program.
Issues of credibility regarding Timmons’s use of drugs and other findings about which she
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complains were up to the trial court. In resolving the clearly erroneous question, we give due
regard to the opportunity of the trial court to judge the credibility of witnesses. Moore v. Ark.
Dep’t of Human Servs., 95 Ark. App. 138, 95 S.W.3d. 883 (2006).
At the time of the termination hearing, Timmons’s child had been out of her care and
custody for more than seventeen months, and Timmons’s conduct continued to raise concerns
about her ability to protect the child and meet the child’s needs. We find no clear error in
the court’s determinations that Timmons had not remedied the conditions that led to the
removal of her child, and that these factors had a potential risk of harming the child should
she be returned to Timmons.
Affirmed.
V AUGHT, C.J., and G LOVER, J., agree.
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