Aday v. Ark. Dep't of Human Servs
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Cite as 2010 Ark. App. 677
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA10-333
Opinion Delivered
OCTOBER 6, 2010
CRYSTAL ADAY
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT,
[NO. JV-01-224]
HONORABLE GARY M. ARNOLD,
JUDGE,
AFFIRMED; MOTION GRANTED
KAREN R. BAKER, Judge
Crystal Aday brings a consolidated appeal from orders of the Saline County Circuit
Court first terminating reunification services and then terminating her parental rights to her
children S.V.(1), born July 21, 1997, S.V.(2), born March 17, 2000, and A.V., born
September 25, 2001. The trial court granted a joint petition filed by the Arkansas Department
of Human Services (DHS) and the attorney ad litem (AAL) to terminate reunification services
to appellant on January 8, 2010. The court amended the order on January 19, 2010, to reflect
the court’s decision to make the order final and appealable under Ark. R. Civ. P. 54(b), as
required by Ark. Sup. Ct. R. 6-9(a)(1)(B). Appellant timely filed a notice of appeal from this
order. While the appeal was pending but before the brief was submitted, the trial court
granted DHS’s petition for termination of parental rights. Appellant timely appealed that
Cite as 2010 Ark. App. 677
order. Appellant filed a motion to consolidate on May 3, 2010, which was granted.
Appellant’s counsel has filed a no-merit brief and motion to withdraw pursuant to LinkerFlores v. Ark. Dep’t of Human Servs., 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6-9(i)
(2009) of the Rules of the Arkansas Supreme Court and Court of Appeals. The brief contains
all adverse rulings from the termination hearings and states that, after a conscientious review
of the record, counsel has determined that there are no issues of arguable merit for appeal.
Counsel’s motion and brief were mailed to appellant, informing her of her right to file pro
se points on appeal, 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 orders terminating appellant’s
reunification services and parental rights.
We turn first to the question whether clear and convincing evidence supports 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, 331, 255 S.W.3d 505,
507 (2007). An order terminating parental rights must be based on a finding by clear and
convincing evidence that (1) termination is in the best interest of the juvenile, including
consideration of the likelihood of adoption and the potential harm caused by returning
custody of the child to the parents, and (2) at least one statutory ground for termination exists.
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Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722; Ark. Code Ann.
§ 9-27-341(b)(3)(A) & (B) (Repl. 2009). 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.
Arkansas Code Annotated section 9-27-341(b)(3) states that an order terminating
parental rights shall be based upon a finding by clear and convincing evidence that it 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 continuing contact with the parent. 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).
The trial court’s orders terminating reunification services and terminating parental
rights were supported by almost identical testimonial and documentary evidence, and we
address them simultaneously. The trial court’s order after the no-reunification hearing
indicates that it considered the children’s best interests by evaluating evidence that DHS
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presented concerning the likelihood of adoption and the potential harm in returning the
children to the custody of their parents. An adoption specialist testified that the children were
likely to be adopted, and that the relatives with whom they were placed wanted to adopt all
three of them. The evidence proved that allowing the children to remain in a prolonged
period of uncertainty and impermanence with a mother who was making no progress in
following a case plan was harmful to them. Based on our de novo review of the record, we
find that the trial court’s finding that termination is in the children’s best interests is supported
by clear and convincing evidence and find no clear error.
In addition to finding that termination of parental rights was in the best interests of the
children, the trial court determined that DHS had met its burden of proving the parents had
subjected the children to aggravated circumstances, one of the statutory grounds for
termination. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3). We therefore limit our
discussion to the ground set forth in Arkansas Code Annotated section 9-27341(b)(3)(B)(ix)(a)(3)(A) and (B)(i), which states that the parent subjected the child to
aggravated circumstances in that there was little likelihood that services to the family would
result in successful reunification. This type of aggravated circumstance occurs where a parent
is not following through with offers of assistance, is not completing basic goals of the case
plan, and there is a lack of significant progress on the parent’s part. Smith v. Ark. Dep’t of
Human Servs., 100 Ark. App. 74, 264 S.W.3d 559 (2007). In order to establish aggravated
circumstances, there must be more than a mere prediction or expectation on the part of the
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trial court that reunification services will not result in successful reunification. Yarborough v.
Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
Clear and convincing evidence supports the trial court’s order terminating reunification
services and terminating parental rights based on its finding that aggravated circumstances
existed. At the no-reunification hearing, several witnesses testified to support a finding that
termination of reunification services was in the best interests of the children and that there was
little likelihood that further reunification services would result in reunification of appellant
with her children.
Dr. George DeRoeck, the psychological examiner who examined
appellant, testified that appellant presented with frank paranoia and mistrust. He opined that
given her longstanding history of involvement with DHS, minimal compliance with
reunification efforts, and inability to work with DHS to provide care and safety for her
children, placement with appellant should not be considered. Dr. DeRoeck believed that any
possibility for reunification would only come after appellant received psychiatric treatment
and a substance-abuse analysis, and appellant refused such treatment.
The DHS caseworker, Allyson Hass, also testified at the no-reunification hearing. She
testified that appellant had refused most of the services offered to her as outlined in the case
plan and was generally uncooperative with DHS. Ms. Hass noted that appellant did complete
her psychological evaluation and attend a parenting class; however, appellant refused to take
a subsequent parenting class after she failed to demonstrate skills she learned in the first class.
She stated that appellant revoked DHS’s permission to verify whether appellant had followed
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the recommendation contained in the evaluation to complete counseling and refused to
submit to a drug and alcohol assessment because it required her to sign a referral form
provided by DHS, and she refused to sign any documents provided by DHS. Ms. Hass
testified that when the case opened, appellant moved and would not provide DHS with an
address, stating instead that she was living out of her van. Appellant provided an address in
open court, but Ms. Hass could not find the location. Ms. Hass received a letter with yet
another address, but when she visited that address, no one was living there. On the day of
the no-reunification hearing, Ms. Hass discovered that appellant was living with her mother.
When Ms. Hass testified at the termination hearing, her testimony was almost identical.
She stated that appellant had made no improvement since the time of the no-reunification
hearing and that the case plan was unchanged since the beginning of the case because no
progress was ever made. Ms. Hass stated that appellant had paranoia and trust issues identified
through the psychological evaluation that had never been addressed and continued to exist
at the time of the hearing.
Appellant also testified at both hearings. She testified that it was DHS’s fault that she
had not completed the requirements of the case plan. She blamed DHS for her failure to
follow the recommendations of the psychological evaluation and for her failure to take further
parenting classes, although she admitted that she received a copy of the case plan that set forth
the reunification requirements. Appellant testified that she did not need further services
because she was a fit and proper parent. She admitted at the termination hearing that she had
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revoked her consent for DHS to verify all medically related progress she was making.
Appellant stated at both hearings that she would only submit to a drug and alcohol assessment
if she could choose the facility and did not have to disclose anything to DHS.
Based on the foregoing, we find that DHS presented clear and convincing evidence
that appellant failed to comply with the case plan and court orders, and we see no clear error
in the trial court’s determination that appellant subjected the children to aggravated
circumstances. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A), (B)(i); see also Dinkins v. Ark.
Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
In addition to the ruling terminating appellant’s parental rights, counsel addresses one
other adverse ruling made during the no-reunification hearing. Appellant’s counsel objected
to a question that the children’s attorney ad litem posed to Dr. DeRoeck. Appellant’s counsel
objected to the question on the basis that it called for speculation. The court instructed
counsel to restate the question, which she did, and then overruled the objection. This ruling
pertains to the admission of evidence. We will not reverse a trial court’s ruling on admission
of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice.
Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450. Dr. DeRoeck was allowed to testify
concerning his observations of appellant’s paranoid behavior, which is well within his area of
expertise. Counsel for appellant states that there was no prejudice to appellant by this ruling,
and we agree.
Affirmed; motion to be relieved granted.
GRUBER and HENRY, JJ., agree.
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