Leonard v. Ark. Dep't of Human Servs
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Cite as 2010 Ark. App. 605
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA10-396
ANNA LEONARD
Opinion Delivered
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
SEPTEMBER 15, 2010
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. JJN2008-943]
HONORABLE WILEY A. BRANTON,
JR., JUDGE
AFFIRMED; MOTION TO BE
RELIEVED GRANTED
KAREN R. BAKER, Judge
Appellant Anna Leonard appeals from the January 19, 2010 order terminating her
parental rights to her children A.H., born July 18, 2005, and K.H., born February 1, 2007.1
Appellant timely filed a notice of appeal on February 2, 2010. Appellant’s counsel has filed
a no-merit brief pursuant to Linker-Flores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194
S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), asserting that there are no
issues that would support a meritorious appeal and requesting to be relieved as counsel. The
clerk of this court mailed a certified copy of counsel’s motion and brief to appellant,
The court’s order also terminated the parental rights of the fathers of the children in
this case. Neither father has filed an appeal.
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informing her of her right to file pro se points for reversal, and the green card was returned.
Appellant has filed no pro se points for appeal. We grant counsel’s motion to withdraw and
affirm the order terminating appellant’s parental rights.
On May 7, 2009, the Arkansas Department of Human Services (“DHS”) took A.H.
and K.H. into its custody on an emergency basis. DHS workers responded to a call from the
Pulaski County Sheriff’s Office that appellant’s two young children were playing in the road
and had almost been hit by a truck. The DHS workers reported that the home was “filthy,”
there were large quantities of drugs and drug paraphernalia in the home, and K.H. appeared
to have burns on his face and side. Appellant was arrested for child endangerment, possession
of drug paraphernalia, and possession of marijuana. The circuit court entered an emergency
order on May 9, 2008, placing custody of the two children with DHS. At a hearing held on
May 15, 2008, the court found probable cause to believe the children were dependentneglected. The court adjudicated the children dependent-neglected on June 17, 2008, based
on appellant’s failure to properly supervise and her recent arrest. The court made further
findings that appellant was unfit because of her recent suicide attempt, she had no explanation
for K.H.’s injuries and had not sought medical treatment for them, she had failed drug screens,
the children’s environment and the condition of the home were concerning, and she had a
history of behavior problems in her prior juvenile-court case. The court stated that the goal
in the case was reunification. The court then ordered appellant to obtain a psychological
examination and follow its recommendations, complete parenting classes, submit to drug and
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alcohol screens and a drug and alcohol assessment and to follow its recommendations, obtain
and maintain stable housing and income, and attend NA meetings and maintain attendance
records. The court also ordered paternity testing for Kyle Hughes with respect to the two
children and ordered Hughes to comply with conditions that are not relevant to this appeal.
At the review hearing held on September 23, 2008, appellant was attending in-patient
drug treatment. The court authorized visitation for appellant, but noted that the mother was
in danger of being discharged from the treatment program due to violations of the program
rules. On February 17, 2009, and June 23, 2009, the court held permanency-planning
hearings and found that appellant’s efforts to comply with the court’s orders were compelling
reasons to continue toward the goal of reunification. Appellant was employed and had
successfully completed the drug-treatment program, and the two children were going home
for weekend visits.
By the September 15, 2009 permanency-planning hearing, the court changed the goal
to termination of parental rights. It stated that appellant lacked any semblance of credibility
at that time. The court found that appellant had unstable housing, tested positive for drugs
and possibly gave false samples, and had outstanding warrants.
On December 9, 2009, the court held a termination-of-parental-rights hearing. DHS
presented evidence that appellant was receiving intensive family services through HLH
Consultants from June to August 2009. The services were aimed at teaching appellant how
to deal with the children’s behaviors during the period that the children were having weekend
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visits in her home. The services were terminated in August when DHS discovered appellant
was not living in the housing for which the home visits had been approved, but was living
with her father due to a problem with the septic system in her trailer.
Further, appellant had failed to continue attending NA meetings, and beginning with
her October drug tests, the tests started to arouse concern. When a urine test registered no
temperature, suggesting that the sample had been altered, the court ordered a hair-follicle test.
That test returned positive for methamphetamine, and a December 7, 2009 drug test returned
positive for methamphetamine, THC, and Benzodiazepine. At the hearing, appellant
vehemently denied using meth, saying instead that her drug of choice was pills or marijuana,
which she admitted to smoking approximately four weeks prior to the hearing.
Appellant had not obtained stable housing, moved frequently both with and without
K.H.’s father, and had not maintained stable employment, as she was laid off from her job in
October. Appellant’s DHS caseworker testified that she had attempted to no avail to assist
appellant in setting up individual counseling, that the visits with the children did not go well,
and that the parents’ behavior around the children had an adverse effect on the children. She
testified that the children would strike appellant, the parents would get physically violent with
one another, and the parents would curse at one another.
Appellant was also arrested in May 2009 for theft of property, for which she received
probation. She was also on probation for the child-endangerment and drug charges. In
September 2009, appellant was arrested on an outstanding warrant for a probation revocation
for failure to pay probation fees.
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Psychological examiner Dr. Paul Deyoub testified extensively at the hearing regarding
appellant’s psychological evaluation. He opined that appellant was a very troubled young
woman, with a long history of drug abuse, behavior problems, and personality disorder. He
stated his belief that appellant was an unfit parent.
Based on the evidence presented at the hearing, the trial court granted the petition to
terminate appellant’s parental rights. In its January 29, 2010 order, the court stated as follows:
The Court finds it to be contrary to the children’s best interests, health and safety, and
welfare to return them to the parental care and custody of their parents and further
finds that [DHS] has proven by clear and convincing evidence that a [sic] juveniles
have been adjudicated by the court to be dependent-neglected and has continued out
of the custody of the parents for twelve months 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 parents.
From this order, appellant filed this appeal.
We turn first to the question whether there is clear and convincing evidence to support
the circuit court’s decision to terminate appellant’s parental rights. See Linker-Flores v. Ark.
Dep’t of Human Servs. (II), 364 Ark. 224, 217 S.W.3d 107 (2005). Termination of parental
rights is an extreme remedy and in derogation of the natural rights of parents, but parental
rights will not be enforced to the detriment or destruction of the health and welfare of the
child. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505
(2007). An order terminating parental rights must be based on a finding that termination is
in the best interest of the juvenile, including consideration of the likelihood of adoption and
the potential harm, specifically addressing the effect on the health and safety of the child,
caused by returning custody of the child to the parents.
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Ark. Code Ann. § 9-27-
Cite as 2010 Ark. App. 605
341(b)(3)(A)(i) & (ii) (Repl. 2009); see Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App.
180, 314 S.W.3d 722. The order terminating parental rights also must be based on a showing
of clear and convincing evidence as to one or more of the grounds for termination listed in
section 9-27-341(b)(3)(B). Clear and convincing evidence is that degree of proof that will
produce in the fact-finder a firm conviction as to the allegation sought to be established.
Meriweather, 98 Ark. App. at 331, 255 S.W.3d at 507. When the burden of proving a
disputed fact is by clear and convincing evidence, the appellate inquiry is whether the trial
court’s finding that the disputed fact was proven by clear and convincing evidence is clearly
erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with a definite and firm conviction that a
mistake has been made. Id. We review termination orders de novo. Id.
The trial court determined that termination of parental rights was in the best interest
of the children and that DHS had met its burden of proving at least one of the statutory
grounds for termination by clear and convincing evidence. In this case, the trial court relied
upon the following grounds:
An order forever terminating parental rights shall be based upon a finding by clear and
convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the
following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition
is granted; and
(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; and
(B) Of one (1) or more of the following grounds:
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(i)(a) That a juvenile has been adjudicated by the court to be dependentneglected 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.
Ark. Code Ann. § 9-27-341(b)(3)(A) and (B) (emphasis supplied).
In its consideration of the children’s best interest, the court noted that there was
testimony from the adoption specialist that the children, who were two and four at the trial,
were adoptable. She also testified that she had found thirteen potential matches for families
for the children. We have held that testimony from a caseworker that children are adoptable
is sufficient. See Reed v. Ark. Dep’t of Human Servs., 2010 Ark. App. 415, ___ S.W.3d ___.
With respect to the “potential harm” inquiry, the court did not make specific findings in its
order at the hearing; however, the statute does not require a specific finding. Rather, the
court must consider this factor. The court does not have to determine that every factor
considered be established by clear and convincing evidence. Instead, after considering all of
the factors, the evidence must be clear and convincing that the termination is in the best
interest of the child. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d
143 (2005). In considering the “potential harm” factor, the court is not required to find that
any actual harm would result or identify any specific harm. The harm analysis should be
considered in broad terms. Id.
Considering the testimony at the termination hearing, we conclude that the court did
not clearly err in terminating appellant’s parental rights. That termination was in the children’s
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best interest is amply demonstrated by the proof supporting the termination of appellant’s
parental rights. The evidence at trial showed that appellant had failed to obtain stable housing
or regular employment. Appellant had begun abusing drugs again and disobeyed court orders
to attend NA meetings regularly. Dr. Deyoub testified that appellant had a personality
disorder, that the children would suffer because of appellant’s live-in boyfriends, and that
appellant was an unfit parent. Finally, appellant’s arrest and her continued problems with her
probation were salient factors. These factors provide a sufficient basis for the circuit court’s
finding that termination was in the children’s best interest.
We also conclude that sufficient evidence supports the trial court’s findings of statutory
grounds. The children had been adjudicated dependent-neglected, had continued to live out
of appellant’s custody for a period of twelve months, and despite a meaningful effort by DHS
to rehabilitate appellant and correct the conditions that caused the removal, those conditions
had not been remedied. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i). When the children
were taken into DHS’s custody, appellant was not regularly employed, was using illegal drugs,
and did not have stable housing. At the time of the termination hearing, appellant had failed
to attain adequate stability in her employment or housing and had again tested positive for
drugs. Appellant’s counsel conceded at trial that DHS had met its statutory burden, but
appellant was requesting additional time to rectify the conditions. Our Supreme Court has
stated that a child’s need for permanency and stability may override a parent’s request for
additional time to improve her circumstances. See Camarillo-Cox v. Ark. Dep’t of Human
Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). Here, appellant had a period in excess of
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nineteen months during which to address these issues. The trial court found that there was
clear and convincing evidence to support terminating parental rights on this basis, and based
on the testimony and evidence adduced at the termination hearing, we agree. We need not
address the other three potential grounds.
In addition to the ruling terminating appellant’s parental rights, counsel addresses two
other adverse rulings. When appellant was testifying about the progress she had made and
why that justified additional time for her to reunify with her children, she stated, “My kids
don’t deserve to be without their mom and daddy at all. Even the counselor said whenever
I walked in ....” The attorney ad litem objected on the basis of hearsay, and the court
sustained the objection. Appellant did not proffer what she would have testified concerning
the counselor’s statement, and we cannot say the trial judge abused his discretion in sustaining
the ad litem’s objection.
Finally, counsel briefed the trial court’s ruling that the report from the drug test would
be admitted over the hearsay objection of Mr. Hughes. Appellant did not object to the
report’s admission. Where multiple parties are involved, unless appellant’s counsel objects on
appellant’s behalf, the matter is not preserved for her benefit on appeal. Smith v. State, 308
Ark. 603, 826 S.W.2d 256 (1992).
Affirmed; motion to be relieved granted.
GRUBER and HENRY, JJ., agree.
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