Tucker v. Ark. Dep't of Human Servs.
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Cite as 2011 Ark. App. 430
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA11-4
Opinion Delivered
LARRY TUCKER AND JESSICA
TUCKER
APPELLANTS
June 15, 2011
APPEAL FROM THE PERRY
COUNTY CIRCUIT COURT
[NO. JV-2009-14]
V.
HONORABLE RANDALL MORLEY,
SPECIAL JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
This is an appeal from an order terminating the parental rights of appellants Larry and
Jessica Tucker to their three minor children, J.T.1, D.T., and J.T.2. Appellants have filed
separate appeals arguing that the evidence is insufficient to support the trial court’s findings
that they failed to remedy the conditions that caused the removal of the children and that
termination of parental rights was in the children’s best interest. We affirm.
In late June 2009, D.T., age nine, and his brother, J.T.1, age six, knocked on the door
of a stranger to ask for food and water. The children were looking for their father, appellant
Larry Tucker. Mr. Tucker and the children had been living in the home of Mr. Tucker’s
niece, Angela Tucker, when Mr. Tucker was admitted to the Conway County Hospital and
placed on life support because of congestive heart failure and COPD. The wandering
Cite as 2011 Ark. App. 430
children, bruised and dirty, were picked up along the side of a highway by a deputy sheriff.
When Angela Tucker picked up the children from the sheriff’s office, she was accompanied
by her father, Billie Tucker, who is a Level II registered sex offender. Because of this, and
because Angela Tucker’s own children were in foster care due to an open environmentalneglect case, the Arkansas Department of Human Services (DHS) executed a seventy-twohour hold on D.T. and J.T.1 on June 26, 2009.
After a probable-cause hearing on July 1, 2009, it was found that appellants Larry and
Jessica Tucker were involved in an ongoing divorce proceeding. It was learned that the parties
also had a twelve-year-old daughter, J.T.2, and that all three children had previously been
placed into foster care because of a previous episode in which Larry Tucker had been
hospitalized for three or four months. Larry Tucker testified that he was arrested for assault,
battery, and terroristic threatening about one month earlier, and that J.T.2 then went to live
with Jessica Tucker. He said that Jessica “stole” the girl and her SSI benefits. The trial court
found that Larry Tucker was not credible or truthful unless pressed and that he presented to
the court unkempt and with an offensive, foul odor indicative of a severe hygiene problem
that reflected upon his ability to parent children. By a separate order of July 9, 2009, the court
ordered that J.T.2 be taken into emergency custody because Larry Tucker was her custodian
and because her mother, appellant Jessica Tucker, presented in an erratic fashion on the
telephone. J.T.2 was released to her mother following a probable-cause hearing on July 15,
2009.
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Cite as 2011 Ark. App. 430
On July 24, 2009, the divorce court granted legal custody of J.T.2 to her half-sister,
Crystal Jones. Within two weeks, on August 4, 2009, J.T.2 reentered foster care because
Crystal Jones, who could not be found, had left the girl in the custody of Larry Tucker, who
in turn had taken her with him when he drove himself to the Conway County Hospital,
where he was again admitted in serious condition and placed on life support because of
complications related to COPD. Because she had no caregiver, and because Crystal Jones had
failed to bring J.T.2’s eyeglasses, inhalers, and Lupus medications when she left J.T.2 with her
father, DHS obtained an order of emergency custody. Jessica, although personally served and
ordered to appear, did not appear at the adjudication hearing held August 14, 2009. The trial
court consolidated J.T.2’s case with that involving her two brothers, found all three children
to be dependent-neglected by virtue of neglect and inadequate supervision, approved the case
plan developed by DHS, and notified appellants that failure to remedy the conditions causing
removal on or before June 26, 2010, could result in termination of their parental rights.
A review hearing was held on November 13, 2009. The trial court reviewed medical,
psychological, and developmental reports and found that neither parent could adequately
provide for the health and safety of the children if they were returned to either home, noting
Larry Tucker’s continuing medical and parenting problems and Jessica Tucker’s instability.
The court allowed both parents limited, supervised visitation with the children. With respect
to the visitation, Larry Tucker was ordered not to ask J.T.2 for money or advise her not to
cooperate with DHS; Jessica Tucker was ordered to not bring a camera or cell phone with
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her on visits after being observed by a caseworker at visits using a camera containing nude
photos of men. Larry Tucker was found to have partially complied with the case plan; Jessica
Tucker’s compliance was found to be almost nonexistent. Both were ordered, inter alia, to
undergo psychological evaluations and counseling.
A second review hearing was held on February 12, 2010. The court reviewed
counseling and progress reports concerning the children and found that both parents had
partially complied with the case plan, with Larry making some progress and Jessica making
minimal progress toward rectifying the conditions causing removal. The court noted that
Jessica had continued to miss visits with the children, that she had not appeared at the hearing,
and that neither her attorney nor DHS had a working telephone number at which she could
be reached. The court further noted that Larry’s visitation had been stopped because he had
been initiating discussions about and disparaging Jessica with the children during visitation
contrary to prior orders. Larry’s visitations were reinstated but DHS was directed to terminate
them automatically should he again discuss Jessica with the children.
A permanency-planning hearing was held on June 2, 2010. The court reviewed
psychological reports relating to the parents and progress reports concerning the children and
found that DHS had provided reasonable family services to permit reunification with the
father or mother, that Jessica had complied with the case plan and court orders but had made
only minimal progress toward alleviating the conditions causing removal, that Larry had
substantially complied with the case plan but had failed to learn anything from the services
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provided or to demonstrate an ability to appropriately parent the children, and that the
permanency plan for the children would be adoption.
After a hearing on September 23, 2010, the court found by clear and convincing
evidence that termination of parental rights was in the children’s best interest, that the
children had been adjudicated dependent-neglected and continued to be out of the custody
of the parents for twelve months, and that, despite reasonable efforts by DHS to rehabilitate
the parents and correct the problem, both parents had failed to remedy the conditions causing
removal. Both appellants’ parental rights were terminated, and this appeal followed.
In cases where the issue is one of termination of parental rights, there is a heavy burden
placed upon the party seeking to terminate the relationship. Trout v. Arkansas Department of
Human Services, 359 Ark. 283, 197 S.W.3d 486 (2004). 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 and must give way to the best interest of the child when the natural parents seriously fail
to provide reasonable care for their minor children. Camarillo-Cox v. Arkansas Department of
Human Services, 360 Ark. 340, 201 S.W.3d 391 (2005). Pursuant to Ark. Code Ann. § 9-27341(b)(3) (Repl. 2009), an order terminating parental rights must be based upon clear and
convincing evidence, i.e., proof that will produce in the fact-finder a firm conviction as to the
verity of the allegation sought to be established. Camarillo-Cox v. Arkansas Department of
Human Services, supra. A finding is clearly erroneous when the appellate court is, on the entire
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evidence, left with a definite and firm conviction that a mistake has been made. Id. In
deciding whether a finding of the trial court is clearly erroneous, we give great deference to
the superior opportunity of the trial court to observe the parties and judge the credibility of
witnesses. Id.
Appellant Larry Tucker argues that the trial court erred in terminating his parental
rights because he complied with the case plan. Appellant Jessica Tucker argues that the trial
court erred in terminating her parental rights because she was making progress toward
completing the case plan. Both appellants argue that the trial court erred in finding that
termination of parental rights was in the children’s best interest because there was insufficient
evidence of adoptability.
First, we note that progress toward or even completion of the case plan is no bar to
termination of parental rights. It is well settled that evidence that a parent begins to make
improvement as termination becomes more imminent will not outweigh other evidence
demonstrating a failure to comply and remedy the situation that caused the children to be
removed in the first place. Camarillo-Cox v. Arkansas Department of Human Services, supra. Nor
is completion of the case plan determinative. What matters is whether completion of the case
plan achieved the intended result of making a parent capable of caring for the child. Wright
v. Arkansas Department of Human Services, 83 Ark. App. 1, 115 S.W.3d 332 (2003). The
evidence presented at the hearing, including testimony that Larry Tucker was threatened with
a knife while intoxicated at Jessica Tucker’s residence shortly before the termination hearing,
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abundantly supports the finding that neither parent has achieved a degree of stability that
would permit the safe return of their children.
Second, adoptability is not an essential element in a termination case. It is merely a
factor that must be considered by the trial court in determining the best interest of the child.
Renfro v. Arkansas Department of Human Services, 2011 Ark. App. 419. In any event, an
adoption specialist testified at the termination hearing, opining that all three children were
adoptable, either as a sibling group or individually. The evidence of the parents’ chronic
instability and discord, and the impact of these dynamics upon the children, was such that
returning the children to their parents was not a viable option—neither parent, in fact, had
progressed beyond supervised visitation by the time of the termination hearing. Considering
this in light of the difficulty of remedying Jessica Tucker’s psychological instability within a
reasonable length of time, and the absence of any evidence of a suitable relative placement or
caretaker in the event that Larry Tucker’s severe and chronic illness should lead to further
hospitalization, we hold that the trial court did not err in finding that termination of
appellants’ parental rights was in the children’s best interest.
Affirmed.
R OBBINS and G LOVER, JJ., agree.
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