Bryant v. Ark. Dep't of Human Servs.
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Cite as 2011 Ark. App. 390
ARKANSAS COURT OF APPEALS
DIVISION II
CA 11-62
No.
Opinion Delivered
May 25, 2011
LORI BRYANT
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT
[NO. JV-09-128]
HONORABLE LARRY W.
CHANDLER, JUDGE
AFFIRMED
DOUG MARTIN, Judge
Appellant Lori Bryant appeals from an order of the Columbia County Circuit Court
terminating her parental rights to her daughter, A.F.1 In her sole argument before this court,
Bryant contends that the trial court’s decision to terminate her parental rights was improper
where A.F. had achieved permanency through a custodial placement with a relative. We
affirm.
The Arkansas Department of Human Services (DHS) filed a petition for emergency
custody on October 8, 2009, alleging that Bryant and A.F.’s father had been arrested on
October 6, 2009, on charges of possession of drug paraphernalia, delivery of a controlled
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A.F.’s father, Greg Fuller, consented to termination of his parental rights. Bryant’s
two other children from another relationship were also taken into custody at the same time
as A.F., but they were placed in the permanent custody of their father, and custody of those
children is not at issue in this appeal.
Cite as 2011 Ark. App. 390
substance, and endangering the welfare of a minor. During the arrest, police officers found
a glass bulb used for smoking methamphetamine on the floor next to the bed in which A.F.
was sleeping. Bryant’s purse, also on the floor next to the baby’s bed, contained another pipe
and a small plastic bag with drug residue. The arresting officers called the Columbia County
DHS office, which arrived to take custody of Bryant’s three children, including A.F. A.F.
was placed in the custody of her paternal aunt.
The circuit court initially set the goal of the case as reunification, ordering Bryant to
submit to random drug screens, follow the recommendations of the drug and alcohol
assessment, maintain a stable home, and attend counseling. At a review hearing in May 2010,
the court determined that reunification should still be the goal of the case, noting that Bryant
had “somewhat complied with the case plan and . . . court orders in that she has completed
in-patient drug treatment but has not complied with her aftercare plan.”
A review order entered on July 2, 2010, noted that Bryant had provided an address
and proof of employment, although she had not provided proof of out-patient drug
rehabilitation. The court ordered Bryant to follow the case plan; attend and complete outpatient treatment; submit to weekly random drug screens and test negative on all of them;
obtain and maintain stable employment; and obtain and maintain stable, clean, and adequate
housing and keep all utilities on.
In a permanency planning order dated October 1, 2010, however, the circuit court
found that return of A.F. to her mother’s custody was contrary to the welfare of the juvenile.
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The court thus determined that it was in the child’s best interest that the goal of the case
should be adoption, and it directed DHS to file a petition for termination of parental rights.
DHS filed the petition on October 8, 2010.
A termination hearing was held on November 5, 2010. Dawn Fears, the DHS
caseworker assigned to the case, testified that despite the case plan’s requirement that Bryant
visit her child, Bryant did not make all of her visits. Fears also noted that Bryant was required
to obtain stable employment, and although Bryant had gotten several jobs, she had been
unable to hold any of them for more than a few weeks. Discussing the requirement that
Bryant complete a substance-abuse treatment program and pass random drug tests, Fears
stated that Bryant had not “worked very diligently” toward completing her out-patient
treatment and had appeared to tamper with her drug tests. Fears also said that Bryant had lied
in order to avoid submitting to a hair-follicle test.
Fears concluded that Bryant’s efforts to comply with the case plan and the court’s
orders had not been consistent over the period of time that the case had been open. Fears
noted that Bryant had been “evasive” throughout the history of the case, and Fears opined
that she was uncertain whether any further efforts by DHS would result in reunification.
Fears said that she felt that Bryant had not made efforts to overcome her drug problem and
had not “ever been forthcoming to actually admit that she actually has a drug problem.”
Despite Bryant’s having been given a year to make progress consistent with the needs of A.F.,
Fears said that Bryant had not made significant changes to the situation that brought her to
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Cite as 2011 Ark. App. 390
DHS’s attention. Fears stated that it was DHS’s position that it was in A.F.’s best interest to
change the goal of the case to adoption, and she testified that the child’s aunt and uncle had
come forward and were willing to adopt the child.
Jeffery Williams, the Columbia County supervisor for the Division of Children and
Family Services, testified that, if the adoption by the aunt and uncle did not work out,
circumstances were favorable for A.F. to be adopted by someone else. Angela Carter, A.F.’s
aunt, testified that she and her husband were willing to adopt A.F. Carter noted that she and
her husband had continuously had physical custody of A.F. since the child was four months
old, and during that time, Carter testified, the longest amount of time Bryant visited with her
child was “an hour and a half, maybe two hours.” Carter stated that she believed it was in
A.F.’s best interest to remain with her and not return to her mother’s home.
Bryant also testified at the termination hearing. She asserted that she had lived in her
apartment since July 3, 2010, and was currently working approximately twelve hours a week
at a job she had started on October 18, 2010. Bryant acknowledged that she had encountered
difficulties with getting to her out-patient drug-treatment program, but she maintained that
she had not attempted to alter her drug tests. Bryant asked the court for more time before
terminating her parental rights “to see if I can get myself together.” She conceded, however,
that making nine dollars an hour at a twelve-hour-per-week job was “not enough for me and
a child to live on.”
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At the conclusion of the hearing, the court found that A.F. had been out of the home
for twelve months and stated that there was “no doubt that the circumstances and the
conditions that brought this child into foster care are not corrected.” The court found that
Bryant had been deceitful in dealing with DHS with regard to her drug testing and
rehabilitation and said that there was “nothing in this record that gives me any confidence
whatsoever that two months from today or six months from today we will be any closer to
returning A.F. to you than we are right now.” Noting that there was an adoptive family
“ready as we sit here,” the court found that there was a risk of harm in returning A.F. to her
mother and “nothing to indicate that those conditions are going to be corrected any time
soon.” Accordingly, the court granted the petition to terminate A.F.’s parental rights.
A heavy burden is placed upon a party seeking to terminate the parental relationship,
and the facts warranting termination must be proven by clear and convincing evidence.
Friend v. Ark. Dep’t of Human Servs., 2009 Ark. App. 606, ___ S.W.3d ___; Strickland v. Ark.
Dep’t of Human Servs., 103 Ark. App. 193, 287 S.W.3d 633 (2008). The question this court
must answer is whether the trial court clearly erred in finding that there was clear and
convincing evidence of facts warranting the termination of parental rights. Hall v. Ark. Dep’t
of Human Servs., 101 Ark. App. 417, 278 S.W.3d 609 (2008). 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 well-being of the
child. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722. Pursuant
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to Arkansas Code Annotated section 9-27-341(b)(3)(A) (Repl. 2008), an order terminating
parental rights must be based on a finding that termination is in the child’s best interest,
which includes consideration of the likelihood that the juvenile will be adopted and the
potential harm caused by returning custody of the child to the parents. In addition, the proof
must establish at least one of several statutory grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).
This court gives a high degree of deference to the trial court, as it is in a far superior position
to observe the parties before it and judge the credibility of the witnesses. Dowdy, supra.
In her single point on appeal, Bryant argues that the trial court’s decision to terminate
her parental rights was improper under the juvenile code where A.F. had achieved
permanency through a custodial placement with a relative. Under Arkansas Code Annotated
section 9-27-338(c) (Repl. 2008), at the permanency planning hearing, the circuit court must
make a permanency goal in accordance with the best interest of the juvenile. Section 9-27338(c)(3)(A) provides that the court may “[a]uthoriz[e] a plan for adoption with the
department filing a petition for termination of parental rights unless . . . [t]he juvenile is being
cared for by a relative . . . and termination of parental rights is not in the best interest of the
juvenile.” (Emphasis added.) Citing this statute, Bryant contends that termination of parental
rights is not preferred if the minor child is being cared for by a relative. Thus, because A.F.
had been placed in the custody of a relative, Angela Carter, Bryant argues that the trial court
improperly determined that termination of parental rights was an appropriate permanency
plan.
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This argument, however, relies upon a statute that pertains to the permanencyplanning hearing and the fifteen-month review hearing, and not the termination hearing
itself. In Velasquez v. Arkansas Department of Human Services, 2011 Ark. App. 168, this court
found that a similar argument was not preserved:
The bar in this case is that appellant failed to bring up the record of the permanencyplanning hearing where the goal was changed to termination of parental rights. While
a termination order might bring up all intermediate orders, appellant did not designate
the permanency-planning hearing in his notice of appeal, effectively waiving an
argument that would relate to the trial court’s decision which seems to run contrary
to the clear language of Arkansas Code Annotated section 9-27-338(c)(3)(A). It is
appellant’s burden to bring up a record that demonstrates error. Cassidy v. Ark. Dep’t
of Human Servs., 76 Ark. App. 190, 61 S.W.3d 880 (2001).
Velasquez, 2011 Ark. App. 168, at 5.
Similarly, in the present case, Bryant failed to designate the permanency-planning
hearing in her notice of appeal. Although she designated the permanency-planning order in
her notice of appeal, the transcript of that hearing is not in the record. There is no indication
in the transcript of the termination hearing that Bryant ever raised this argument before the
trial court. The failure to raise a challenge or obtain a ruling below is fatal to the appellate
court’s consideration of an issue on appeal. Lamontagne v. Ark. Dep’t of Human Servs., 2010
Ark. 190, ___ S.W.3d ___; Burkhalter v. Ark. Dep’t of Human Servs., 2010 Ark. App. 520.
Bryant had the burden of bringing a record before this court sufficient to make a
determination of the issue presented. See Burkhalter, supra. Because she failed to do so, we
conclude that her argument is not preserved for appeal, and we affirm without reaching the
merits of her argument.
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Cite as 2011 Ark. App. 390
Affirmed.
ROBBINS and BROWN , JJ., agree.
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