Grant v. Ark. Dep't of Human Servs
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Cite as 2010 Ark. App. 636
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA10-303
Opinion Delivered
September 29, 2010
O’NYSSA GRANT
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT,
JUVENILE DIVISION
[NO. JV-2007-204]
HONORABLE PHILLIP T.
WHITEAKER, JUDGE
REVERSED AND REMANDED
JOHN MAUZY PITTMAN, Judge
O’nyssa Grant appeals from a December 22, 2009, order of the Lonoke County Circuit
Court terminating her parental rights to her son C.N., born July 22, 2005. On appeal, she
argues that there is insufficient evidence to support the circuit court’s findings that grounds
for termination existed and that termination of her rights was in C.N.’s best interests. We
hold that the trial court erred in finding that termination of appellant’s parental rights was in
the child’s best interest, and we therefore reverse and remand.
We review termination of parental rights cases de novo. Yarborough v. Arkansas
Department of Human Services, 96 Ark. App. 247, 240 S.W.3d 626 (2006). The grounds for
termination of parental rights must be proven by clear and convincing evidence. Id. When
the burden of proving a disputed fact is by clear and convincing evidence, the question on
Cite as 2010 Ark. App. 636
appeal is whether the circuit court’s finding that the disputed fact was proven by clear and
convincing evidence is clearly erroneous, giving due regard to the opportunity of the circuit
court to judge the credibility of the witnesses. 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. A heavy burden is
placed on the party seeking termination. Jones v. Arkansas Department of Human Services, 361
Ark. 164, 205 S.W.3d 778 (2005). This is because termination of parental rights is an extreme
remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights
will not be enforced to the detriment or destruction of the health and well-being of the child.
Id. Thus, parental rights must give way to the best interest of the child when the natural
parents seriously fail to provide reasonable care for their minor children. Id.
The initial removal in this case was prompted by an incident that occurred on June 9,
2007, when the Arkansas Department of Human Services received a report that Grant was
at the Cabot Police Station with C.N. and that she was threatening to harm herself. The
police and DHS workers tried unsuccessfully for over three hours to obtain information from
Grant. A DHS worker noted in her affidavit that Grant appeared unstable and, as a result,
exercised a seventy-two-hour hold on C.N.
The circuit court entered an order for
emergency custody on June 12, 2007. The court later found probable cause for entry of the
emergency order. In the probable-cause order, the court ordered a home study of relatives
in Texas for possible placement of C.N.
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After an adjudication hearing held on August 6, 2007, the circuit court found that
C.N. was dependent-neglected because Grant was mentally unstable and unable to properly
care for her son. The court allowed DHS to place C.N. with April Daugherty, a maternal
aunt in Texas, in part because Grant had also moved to Texas. Among other things, Grant
was ordered to comply with the orders of the court; cooperate with DHS, both in Arkansas
and in Texas; obtain and maintain stable housing; obtain and maintain stable employment;
take her medications as prescribed; complete parenting classes; complete counseling;
participate in mental-health services as recommended; maintain contact with the case workers;
and complete a psychological evaluation and follow all recommendations. Grant was also
ordered to pay child support of $25 per week beginning August 10, 2007.
By the time of the February 4, 2008, review hearing, Grant had been hospitalized in
the Texas State Hospital and had relocated to El Dorado. The court continued custody of
C.N. with the relative in Texas. The court found that Grant had not submitted to a
psychological evaluation, and that there was a period when Grant did not attend parenting
classes or counseling. She was allowed supervised visitation with C.N., and the goal of the
case remained reunification, with a concurrent goal of relative custody, guardianship, or
adoption.
Another review hearing was held on April 6, 2008. The court continued custody of
C.N. in DHS. However, the court noted that the relative in Texas could no longer maintain
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Cite as 2010 Ark. App. 636
C.N. in her home, despite the fact that he was doing well. The goal of the case remained
reunification, with a concurrent goal of relative custody, guardianship, or adoption.
A permanency-planning hearing was held in conjunction with a review hearing on
June 2, 2008. In the resulting order, the court noted that C.N. had been returned to DHS’s
custody on May 30, 2008, by April Daugherty, the relative in Texas. The court noted that
C.N. could not be returned to Grant, but continued the goal as reunification because Grant
had relocated to Arkansas in January 2008 and had been complying with the case plan. There
was testimony noted in the court’s order that Grant had improved but that there was no
indication as to when she would be capable of caring for C.N. Grant was ordered to comply
with the orders of the court; cooperate with DHS; obtain and maintain stable housing; obtain
and maintain stable employment; take her medications as prescribed; complete parenting
classes; complete counseling; participate in mental-health services as recommended; maintain
contact with the case workers; and complete a psychological evaluation and follow all
recommendations. The court also warned Grant that she needed to demonstrate greater
improvement and ability to care for C.N. or the court would have no choice but to change
the goal to adoption.
A fifteen-month permanency-planning order was entered on September 5, 2008. The
court found that Grant had been complying with the case plan and had been making
measurable progress but that she had not yet progressed to the point where she could be
reunified with C.N. The court was not convinced that enough progress could be made in
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a reasonable time to achieve reunification, and therefore found that there was little likelihood
that continued reunification services to the family would result in successful reunification.
The goal of the case was changed to adoption.
An order terminating the parental rights of Macio Nickleberry, C.N.’s putative father,
was entered on January 13, 2009, following a November 24, 2008, hearing. However, the
circuit court declined to terminate Grant’s parental rights at that time because she had shown
significant, measurable progress, finding that, despite some relapses, her medication was stable
and her mental condition appeared to be under control and improving. The court ordered
DHS to provide further reunification services to Grant and set a seven-month “drop dead”
date, after which termination would be ordered if reunifucation could not be achieved.
Another review hearing was held on May 4, 2009. C.N. remained in the custody of
DHS, and Grant was allowed supervised visitation. The goal of the case was changed to
termination of Grant’s parental rights despite the court’s finding that, except for her mental
stability, Grant was in substantial compliance with the case plan. The court further found that
Grant had long-term, serious mental illness and that, despite taking medications and following
recommendations, she was still subject to episodic conditions. The court found that no
significant measurable progress had been made since the previous order and that it was
unlikely that the two months remaining until the previously set “drop dead” date would be
sufficient to achieve reunification.
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Cite as 2010 Ark. App. 636
On June 10, 2009, DHS and the attorney ad litem filed a joint petition seeking the
termination of Grant’s parental rights alleging two grounds: that twelve months had passed
and appellant failed to remedy the cause for removal, see Ark. Code Ann. §
9-27-341(b)(3)(B)(i)(a); and that subsequent issues had arisen since removal warranting
termination. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). The petition also asserted that
there were no family members ready to serve as possible placements for C.N.
The termination hearing was held on December 10, 2009. O’nyssa Grant testified
that, with regard to the the incident causing removal, she took C.N. to the police station
because she did not want to hurt him or herself. She testified that she had been diagnosed as
paranoid schizophrenic, but that she was no longer having any symptoms while she was on
her medication. She acknowledged that C.N. had been out of her care for more than half of
his life but said that she had supervised visitation with her son in her home every two weeks,
that the visitations went well, that her son knew who she was, and that they played and talked
with each other. Grant stated that she had some unsupervised visitation in the early part of
2009, and, on one occasion, her son did not want to leave and threw a tantrum. She said that
she had a withdrawal episode at that time because she was concerned about her child, and
that she had another such episode around the time of the May 2009 hearing. She said that
these episodes keep her from communicating with other people but that she had not had any
recurrence since May because her medication was changed immediately after that episode.
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Grant also stated that she had completed parenting classes and been in counseling most
of the duration of this case. She had not had an individual therapist since Dr. Garrett retired
but was participating in group therapy. Grant understood that C.N. had been in foster care
for over half of his life and she wanted what was best for him. She also asserted that she could
care for him. She knew that there were programs to help both her and C.N., who recently
had been diagnosed as autistic. Grant agreed that C.N. deserved a stable home and said that
she wanted to be the one to provide that home. She said that, if C.N. were returned to her,
she would call Patti Redmond or Donna Minor if she needed help or had a problem. She
stated that Minor is her mental-health professional and that she sees Minor twice a week.
On cross-examination, Grant attributed the March 2009 episode to being on the
wrong medication at the time. That was shortly after she had her first unsupervised visitation
with C.N. and C.N. threw a tantrum. Grant stated that, when she is having an episode, she
completely shuts down and does not communicate, and she admitted that when so affected
she is not able to care for her son. Grant acknowledged that there was no way to predict
when she would have an episode but stated that if C.N. were in her care and she felt the least
bit paranoid, she would call someone to come and help her.
Dr. Carol Garrett, a doctor of psychology, testified that she was Grant’s therapist until
she retired in September 2009. She said she testified at the earlier termination hearing that
C.N. could be returned to Grant but could not provide an exact time line as to how long it
would take.
She said that Grant was doing better in her therapy but was somewhat
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Cite as 2010 Ark. App. 636
withdrawn in group therapy. She further testified that Grant’s psychotic symptoms had
stopped and that Grant was able to live independently, take care of herself, drive a car, buy
groceries, keep an apartment, and do other things to be able to care for her son. She stated
that Grant was never a threat to C.N., but the stress of court and of not knowing whether she
would have custody of C.N. were causing her some problems. Garrett testified that Grant
had reached the point at which she could be allowed unsupervised visitation even before the
goal of the case plan was changed to termination of parental rights. Garrett believed that
Grant could properly care for her son with the appropriate backup. She also said that such
backup was available in the form of Grant’s family and others.
On cross-examination, Garrett attributed Grant’s March episode to the stress of the
upcoming court hearing, explaining that Grant had hoped that her son was going to be able
to come home with her and was terribly disappointed when she realized that he was not. She
acknowledged that Grant was on her medication at the time of the March psychotic episode,
but explained that the medication could become less effective during stressful periods. She
acknowledged that Grant could not care for her son when having a psychotic episode, but
opined that, as long as Grant had a support system, it would be safe for C.N. to be with
Grant. Finally, Garrett stated that Grant was going to need training to be able to properly
take care of her son in light of his recent diagnosis of autism.
Patricia Redmond, the DHS secondary worker in Union County, testified that she
helped provide Grant with transportation and other services and that she had supervised
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Grant’s visitation when necessary. Redmond said that, during her visits with Grant, they
discussed Grant’s medication, her stability, and the things that she needed to work on. She
said Grant had made progress in the case, as evinced by the facts that Grant was taking her
medication and had obtained her own housing and transportation. Redmond also described
what may have been an episode that led to Grant’s hospitalization in April or May 2009.
According to Redmond, Grant was always talking about how she wanted to have her son
back. Redmond noted that Grant was very nervous and when she became anxious, such as
before court, she starts exhibiting symptoms. Redmond opined that, despite the services
provided to her, Grant had not progressed to the point where she could have either
unsupervised contact with her son or to care for her son in her home.
Glenda Shavers, the adoption specialist, opined that C.N. was adoptable. She said that
she ran a search through the system and that fifty-two families were eligible to adopt C.N.
However, she then testified that C.N.’s recent diagnosis of autism was not included in the
search criteria. Nevertheless, she maintained her opinion that C.N. was adoptable because
she believed that all children are adoptable. With specific regard to C.N.’s adoptability in
light of his autism, she said that she had one email response to her inquiry regarding eligible
families who would consider adopting an autistic child.
Bridgette Austin, the family service worker on the case, testified that DHS has
provided services to Grant since the November 2008 termination hearing. Austin reported
that no other family member had contacted DHS about being a possible placement for C.N.
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Austin gave the department’s recommendation that Grant’s parental rights be terminated in
order for C.N. to have stability in a permanent home. She stated that, from the perspective
of a child C.N.’s age, it would be in his best interest to obtain permanency now instead of
waiting a few months. According to Austin, C.N. would face potential harm if returned to
Grant because she had not been able to care for him for more than two hours without having
a breakdown and she was not able to handle him, due to his autism. The diagnosis of autism
was made in September 2009, at which time C.N. was moved to a therapeutic foster home
because his tantrums were getting worse and his former foster parents could not handle him.
Austin said that C.N. had adjusted well to his therapeutic foster home.
On cross-examination, Austin stated that Grant had not had unsupervised visitation
because of concerns expressed to her by Patricia Redmond. She testified that C.N. was not
able to handle large crowds such as those at sporting events or large stores, and stated that
C.N.’s previous foster parent was not interested in adopting him. According to Austin, C.N.
had a tantrum during one of his visits with Grant, and, after that, Grant was so stressed that
she went into one of her episodes. Austin said it would take a lot of training for a parent to
be able to care for C.N., adding that she did not know how long it would take to give Grant
such training. Austin said that in her opinion Grant, despite not having an episode for over
nine months, was not mentally stable enough to care for C.N. According to Austin, Grant
had complied with all the case plan provisions except for achieving mental stability.
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Erica Darden, a case worker for Lonoke County DHS, testified that she supervised
Grant’s visits with her son. She testified that she dropped C.N. off for a visit with Grant in
March or April 2009, and, when she picked him up two hours later, Grant was catatonic. She
said that C.N. was aware of what was happening and was not wanting to leave Grant that day.
According to Darden, Grant and C.N. have bonded and improved their relationship. She
described C.N. speaking of his mother and stating that he wanted to visit his mother and not
leave her. According to Darden, Grant’s home is adequate for a child of C.N.’s age. She
stated that she had never had any concerns about the safety of Grant’s home. In Darden’s
opinion, Grant was ready to start unsupervised visitation or to start transitioning him into her
home. She added that Grant would need a safety plan for what to do should she have a
problem with her medication or if she felt an episode coming on. Darden believed this was
feasible because Grant had support from her family and friends. Darden stated that she was
aware of the department’s recommendation and that the opinions she expressed were not
those of the department.
Donna Minor, a mental-health paraprofessional with South Arkansas Regional Health
Center in El Dorado, testified that she assisted Grant with medication management and other
matters for over a year. Minor stated that Grant was not in individual counseling at that time
because the regular therapist had left, but that Grant was attending group therapy and would
be assigned a new therapist. She testified that, since the March 2009 episode, Grant had made
wonderful progress. Minor said that she had observed the interaction between Grant and her
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son on several occasions and that Grant’s actions were appropriate. Minor described herself
as a person whom Grant could call anytime that she needed help. She said that she was “very
comfortable” that Grant would follow a safety plan and would call someone if she had an
episode while C.N. was in her custody. Minor said that Grant would need to continue
counseling or therapy for the rest of her life. She also stated that she truly believed Grant had
learned coping skills to deal with her situation and that she could handle having C.N. in her
custody. On cross-examination, Minor stated that her talking to Grant did not stop Grant
from having a meltdown.
The circuit court ruled from the bench and granted the petition for termination. The
court found that DHS had proven one ground for termination in that C.N. had been
adjudicated dependent-neglected; that he had remained out of Grant’s custody for more than
twelve months; that DHS had made meaningful efforts to provide rehabilitative services; and
that, despite those efforts, the conditions that caused removal had not been remedied. The
court also found that C.N. was adoptable and that termination of Grant’s parental rights was
in C.N.’s best interests. The court’s written order was entered on December 22, 2009, and
this appeal followed.
Grant argues that there is insufficient evidence to support the finding that termination
of her parental rights was in C.N.’s best interest because there was no credible evidence
regarding the likelihood that C.N. would be adopted. We agree. It is true that the likelihood
of a child’s adoption is but one factor for the court to consider in determining the child’s best
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interest. See McFarland v. Arkansas Department of Human Services, 91 Ark. App. 323, 210
S.W.3d 143 (2005). The polestar consideration is that termination of parental rights must,
after consideration of all relevant circumstances, be shown to be in the child’s best interest.
Id. We think that the trial court erred in finding that it was.
The child in this case suffers from autism and, like his mother, requires ongoing mental
treatment. It is clear that his autism sometimes causes disruptive behavior and, we think,
equally clear that this condition was not considered in determining whether he was adoptable.
If it were true, as Glenda Shavers opined, that “all children are adoptable,” it would not be
necessary to consider the adoptability of the child to decide whether termination was in the
child’s best interest. What is certain from this record is that it has been impossible to even
place this child in foster care in the same county as that in which Grant resides, that his foster
parents have no interest in adopting him, and that all Ms. Shavers could offer regarding the
adoptability of this particular child is that she has had one email contact regarding a person
who might be interested in adopting a child suffering from autism.
Adoptablility is merely a consideration and not a requirement, it is true, but it is a
consideration that bears strongly on a child’s best interest, especially in a case like this where
the child is attached to a loving mother who has never volitionally subjected him to harm.
Both the mother and the child have mental problems that require more treatment and therapy
than has been provided, and we think that their mutual love and affection is something that
should not be lightly dismissed considering the child’s prospects for happiness and general best
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interest. Given the dearth of evidence of adoptablity, we hold that the trial court clearly erred
in finding termination of parental rights to be in the child’s best interest. Because we reverse
on this point, we need not address the remaining arguments advanced by appellant on appeal.
See Benedict v. Arkansas Department of Human Services, 96 Ark. App. 395, 242 S.W.3d 305
(2006).
Reversed and remanded.
V AUGHT, C.J., and H ART, J., agree.
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