Jessup v. Ark. Dep't of Human Servs.
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Cite as 2011 Ark. App. 463
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA11-87
Opinion Delivered
SHAWNA JESSUP AND JOEL JESSUP
APPELLANTS
June 29, 2011
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[NO. JV-2009-201]
V.
HONORABLE CINDY THYER,
JUDGE
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLEE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
JOHN MAUZY PITTMAN, Judge
This is an appeal from an order of the Craighead County Circuit Court terminating
the parental rights of appellants Shawna Jessup and Joel Jessup to their son P.J., born April 12,
2004, and to their daughter, S.J., born April 3, 2003. Shawna’s attorney has filed a motion to
withdraw as counsel on appeal asserting that there are no non-frivolous issues that could
arguably support her appeal. Joel’s attorney has filed a brief arguing that the trial court erred
in terminating his parental rights. We affirm the order terminating appellants’ parental rights
and grant Shawna’s attorney’s motion to withdraw.
On May 21, 2009, an Arkansas Department of Human Services (DHS) family service
worker signed the following affidavit:
Cite as 2011 Ark. App. 463
b. Agency received a report of Environmental Neglect and Inadequate Supervision
on 2-25-09. It was alleged that the home was filthy and nasty/trash was everywhere
and they had mice and roaches. Reporter was not sure if there were drugs in the home
but there were also cat feces in the home. Shawna was also supposed to hitchhike from
Memphis to Blytheville with a trucker. A friend who had seen Shawna said she was
scared but they thought that it could have been because of her husband who had been
in a mental facility after he alleged to have had a blackout. It was believed that Shawna
is addicted to prescription drugs. The mom was supposed to have cut almost all of her
hair off last week and the kids may spend a lot of time in their rooms. We later
received information that the mom was at home and P.J. got out of the house and was
seen riding his bike blocks away. Luckily a DCFS Worker (Brenda Morton) spotted
him and he was able to show her where he lived. The mom was seen by Morton and
the mom later claimed the doctor had prescribed her some new medication and it
made her drowsy. This report was founded for Inadequate Supervision. We also
received allegation that the mom/dad were not home one occasion when the Learning
Center’s School Bus arrived at the home to drop him off. Mom claimed she was at a
drop off site at Bill and Jerry’s Grocery Market in order to get S.J. (they attend
different schools) and the dad was responsible for being at home in order to get the
boy (P.J.) But the dad was not there. The bus driver then dropped the child off at the
emergency contact address after phone calls were unsuccessful.
c. CHRIS Search past true finding on Joel Jessup in 1994 for abuse on at that time
a girlfriend’s son. No prior reports in CHRIS on the mom under her name and birth
date. However, during the course of the investigation many concerns arouse: (1) The
mom and dad had broken up and they lost their home (HUD) and the mom and kids
had to venture/staying with friends and relatives due to them not having a place to
live. (2) Domestic Abuse was previliant [sic] and the dad had ever [sic] stolen the
mom/kids medicine along with clothes and burned it up. (3) The father was also
battling mental injury and he may have not been taking his medicine or getting
adequate follow-up care. (4) He and the mom were alleged to have been addicted to
prescribed and illegal drugs (5) The mom came to the office and took a drug test and
she only passed 2 of the six drugs tested. She had admitted to using THC recently but
she claimed she had some prescription drugs that caused positive test (scripts for
Hydrocodine/Clonopline/Daxirdephansen/Syntec. She tested positive for Meth. and
claimed an allergy medicine may have caused the positive reading but at this time, we
have no evidence of this.) (6) The mom also seemed to be overly nervous/cried a lot
during the office visit. (7) Mom may have not been as forthcoming with assuring the
agency of various places she had lived with the kids after the breakup of her and her
husband. (8) The mom claimed that the father had came around and picked up P.J.
and dropped him on his bottom. (9) Kids did not seem to have any recent
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stability/place to live of their own and it seemed that the mom was dragging them
from place to place. Due to a constellation of issues, it was determined that children
needed to be placed in care of this was best decision because their health and safety
were at risk. (10) Mom diligence of obtaining medical treatment for S.R. was in
question whereas she was believed to have “pink eye.” 72 Hour hold was placed on
P.J. and S.J. at 4:40 p.m.
Based on the petition filed by DHS on May 26, 2009, the circuit court entered an order for
emergency custody.
The court held a probable-cause hearing on May 29, 2009, at which Shawna’s attorney
was present. The court found probable cause and directed DHS to develop an appropriate case
plan. It ordered the parents to cooperate with the department; to comply with the case plan
and court orders; to view “The Clock is Ticking” video; to remain drug- free and submit to
random drug screens; to keep the department informed of a current address; to submit to a
drug and alcohol assessment, and follow the recommendations thereof, in the event of a
positive drug screen; to submit to a psychological evaluation and follow the recommendations;
to complete parenting classes; to obtain and maintain clean, safe, and stable housing, with
utilities; to obtain and maintain stable employment or provide sufficient income to support
the family; and to attend Narcotics Anonymous and Alcoholics Anonymous meetings and
anger-management classes.
Appellants attended the adjudication hearing held on September 1, 2009. The court
found the children to be dependent-neglected; that the family did not have stable housing;
and that Shawna tested positive for THC and methamphetamine. The court set the goal of
reunification and approved the case plan developed by DHS. It gave appellants visitation at
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the discretion of the department and the attorney ad litem. It again placed the same
requirements as before on appellants; directed Joel to be “medication compliant”; and ordered
appellants to give DHS their addresses and telephone numbers and any prescriptions that they
were prescribed.
Dr. George DeRoeck administered a psychological evaluation to Shawna on
December 22, 2009. In his report, Dr. DeRoeck stated that Shawna was separated from her
husband, with whom she had split up before, and whom she described as erratic, angry,
physically abusive, and an abuser of medications/drugs/alcohol. He noted that she was
currently residing in a trailer with her boyfriend, making $75.00 per week babysitting, and
experiencing financial difficulties. Dr. DeRoeck noted that Shawna had taken medication off
and on since she had received mental health counseling at seventeen and was currently on
Paxil, Klonopin, and Soma. He said that Shawna’s drugs of choice were alcohol and cannabis,
which she began using at fourteen; she started using methamphetamine at twenty-five. She
admitted that she and her husband had been “methed out” and that she had drunk a lot of
beer since the children had been placed in foster care. Dr. DeRoeck stated:
Based on the current evaluation, Ms. Jessup is functioning within a low average
range of intellectual development and her overall achievement is commensurate with
this level of functioning. No clear indication of organicity appeared evident based on
the testing.
From a personality point of view, indications of dependent personality
characteristics are noted. She has a tendency to feel easily overwhelmed and may give
in to her children’s demands. Though viewing herself a competent parent, the PSI
suggested a tendency to be stressed in parenting. A tendency to defer parenting to
others (extended family/boyfriend, etc.) may be indicated.
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In this examiner’s opinion, a lack of appreciation of the environmental
limitations of the home is noted. She described, in glowing terms, a positive
relationship with her new boyfriend despite him being a recovering alcoholic/addict
and being unemployed.
Deficits in judgment appeared evident. She identified regretting her three
months of daily alcohol abuse. She described being in recent recovery and is ostensibly
attending AA. She has had inconsistent response to medications and discontinues
medications when drinking. She does present with evidence of anxiety disorder —
describing social anxiety and panic.
In my opinion, her overall prognosis for effectively maintaining in the care of
her children is guarded, at best. Consideration for alternate placement may be indicated
based on the extent of her substance abuse, paucity of judgment and emotional
difficulty. However, consideration for reunification may be indicated if she is able to
maintain viable recovery for an extended amount of time and if she receives effective
treatment regarding anxiety-based symptomology.
Dr. DeRoeck diagnosed Shawna with anxiety disorder, NOS, generalized
anxiety/social phobic; rule out polysubstance induced persisting anxiety disorder; dysthymic
disorder—early onset; polysubstance dependence—in early controlled environmental
remission (cannabis, alcohol and methamphetamine) (AXIS I); and personality disorder, NOS,
dependent trait—rule out disorder (AXIS II). He made the following recommendations:
Consideration for alternate placement of children given significant history of polysubstance dependence, unresolved anxiety disorder and deficits in judgment of
longstanding duration.
If interested in working toward reunification, the following are indicated:
1. Long-term residential treatment regarding polysubstance dependence. Consideration
for chemical-free living is also indicated. In addition, she will require a sponsor and
continue urine screens as well as an evaluation for potential for alcohol abuse (potential
to switch addictions is highly indicated). This level of intervention is indicated given
her checkered pattern of compliance. Of significance was her missing item on the PAI
regarding plan for suicide.
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2. Evaluation of psychoactive medication given the potential for use with
alcohol/other drugs. An evaluation of other medications for social phobia (Zoloft, etc.)
as well as the possibility of other non-addictive medications for treatment of panic may
be indicated.
3. Stress management counseling. Efforts to learn other non-medication methods of
coping with stress are indicated, i.e., learning to set priorities, time management skills,
assertiveness skills, etc.
4. Personalized counseling to resolve issues in potential for continued substance abuse,
i.e., unresolved grief over loss of first husband and father, working through dependent
personality characteristics and description of ambivalence in current marriage.
Dr. DeRoeck also administered a psychological evaluation to Joel on December 22,
2009. In his report, he related Joel’s background information as follows:
He attended school to tenth grade in the regular classroom. He was diagnosed
with attention deficit hyperactivity disorder. He obtained a GED while incarcerated.
He was retained in first grade.
Mr. Jessup has been married to Shawna for two years and they have two
children - ages 6 and 5. They are separated. He reported believing his daughter, age
6, has bipolar symptomology.
Occupationally, he is unemployed. He is residing with friends and his mother
drove him to today’s session.
Medically, he reported being hit by a car in 07/2000 and was in a coma for a
significant amount of time. He was intoxicated at the time and reported having bipolar
symptomology and was self-medicating via alcohol use. (Mr. Jessup is known to this
examiner, as I evaluated him for Social Security disability benefits in the past.)
Mr. Jessup was inpatient at St. Bernard’s Behavioral Health on two occasions.
He identified, “I had a lot of trouble because of her cheating and I had to fight him.”
He was at the Mid-South Crisis Center on one occasion. He has had minimal
followup. He is prescribed Lithium and Neurontin (medications for bipolar disorder)
and Vistaril (antianxiety) by his family physician. He is prescribed Hydrocodone
though cannot afford it at this time.
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Legally, he reported “at least 20” public intoxication charges. He was also
arrested for burglary/theft and was in prison for 16 months.
SUBSTANCE ABUSE:
Mr. Jessup identified a notable history of methamphetamine use and this is his
drug of choice. He reported a number of relapses—the last one month ago. He had
a history of IV use. His last use of alcohol to the point of intoxication was two weeks
ago. He also reported using hallucinogens and heroin. He uses cannabis when he runs
out of Vistaril and last used it one week ago.
Dr. DeRoeck noted that Joel was “odorous,” with poor hygiene, unkempt hair, and
torn pants. He stated that Joel presented as “clearly emotionally unstable” and that he had
readily admitted to continuing substance abuse in an attempt to manage anxiety. As to Joel’s
mental status, Dr. DeRoeck stated:
Suicidal ideation is denied and he identified three previous suicide attempts (via
overdose). He identified a tendency to be easily angered and stressed. He justified his
variability of mood associated with the fact that he is nervous frequently. He did not
appear intoxicated today.
Auditory and visual hallucinations are identified during periods of intoxication
though not currently. He was not responding to internalized cues. Difficulty with
sustained attention to detail was evident.
His reasoning was difficult to follow and a loosening of associations was evident
as a result. He identified significant changes in mood and difficulty with impulse
control following his coma in 2000. Prior, he reported bipolar symptomology though,
“A lot of times I was just depressed.” He alluded to periods of lost time though denied
specific phobias or irrational fears.
Dr. DeRoeck said that Joel did not appear to be stable enough to care for his children
at that time and that he should be considered for inpatient hospitalization. He diagnosed Joel
with personality changes due to general medical condition—combined type (head
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injury/polysubstance dependency); polysubstance dependence—alcohol, amphetamine,
cannabis; dementia-mild secondary to head injury; and “mood disorder, NOS versus bipolar
disorder, NOS.” He made the following recommendations:
1. Given admission of polysubstance use and potential for suicide, consideration for
inpatient hospitalization (dual diagnosis) may be indicated, He is very prone to relapses
despite indications of taking some psychoactive medications. His tendency to be erratic
and to make decisions based on emotion rather than reason suggests a poor prognosis
without more intensive treatment. His lack of support (living with different friends)
as well as description of uncontrolled tension/anxiety suggests a potential for self-harm.
2. Consideration for chemical-free living following more intensive treatment of his
current psychiatric condition is highly indicated. His inability to maintain viable
recovery is suggestive of this type of living situation.
3. Alternate placement of his children. Following a period of recovery and stabilization
on medication, consideration for supervised visitation only appears indicated.
4. Monitoring of his medication is necessary due to his tendency to overuse
medication (particularly Vistaril).
Dr. DeRoeck’s reports were entered into evidence at a review hearing held on January
26, 2010. Shawna attended this hearing but Joel did not, because he was in a rehabilitation
facility run by a religious organization. The court entered an order continuing the goal of
reunification and finding that DHS had made reasonable efforts to provide reunification
services. It noted that Shawna had watched “The Clock is Ticking” video; taken parenting
classes and a psychological evaluation; and visited her children. It stated that she had not
complied with the case plan in that she had tested positive on the drug screens; had refused
to let the worker see her prescriptions; had not provided proof of attendance at NA/AA
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meetings; had not completed domestic-violence education; and had not visited regularly with
her children.
The court found that Joel had complied with the case plan by taking the psychological
evaluation but had not complied in that he had tested positive for drugs and had not visited
his children regularly. The court continued supervised visitation. In addition to the
previously-ordered actions, it ordered Shawna to enter a long-term residential treatment
program for a minimum of ninety days; to give the department the children’s social security
cards; to submit the children’s social security payments to the department; to remain
medication compliant; and to provide the bottles of the prescriptions she was taking to the
department. It directed DHS to determine if Joel’s Messiah Ministry Rehabilitation Facility
was appropriately licensed; if not, the court directed him to enter a long-term residential
treatment program for a minimum of ninety days.
The court held a permanency-planning hearing on April 27, 2010, which Shawna
attended. Joel was still in rehabilitation at the non-accredited Messiah Ministry. The court
continued the goal of reunification and directed that a fifteen-month review hearing be held
because DHS had not provided anger-management and domestic-violence classes. The court
noted that Shawna had visited regularly with her children; submitted their social security
payments to the department; and provided a prescription for clozapine to the department. It
stated that she had not complied by testing positive for drugs on January 21, 2010; January
28, 2010; March 4, 2010; April 2, 2010; April 22, 2010; and April 23, 2010; not providing
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proof of attendance at NA/AA meetings; not completing domestic-violence or angermanagement classes; not providing the children’s social security cards to the department; not
completing a ninety-day residential facility stay; not complying with psychological
recommendations; and not finding suitable employment. The court noted that Joel had
complied with the case plan by taking a psychological evaluation but that he had not complied
with the plan by testing positive for drugs; completing a ninety-day residential treatment
program; and not complying with psychological recommendations. The court also entered
an order that Shawna’s live-in boyfriend would have no contact with the children.
The court held a fifteen-month permanency-planning hearing on July 29, 2010. DHS
filed a copy of the Arkansas criminal history report of Shawna’s live-in boyfriend, which
revealed fourteen convictions for breaking or entering; burglary; theft; drug delivery,
possession, manufacturing, and paraphernalia; and battery between 1991 and 2000. In the
resulting order, the court changed the goal of the case to termination and adoption. It noted
that Shawna had made no further progress with the case plan; that she had tested positive for
drugs on July 29, 2010; and that she had not maintained contact with the department since
April 28, 2010, when she left the OMART treatment facility. The court also noted that Joel
had not made any further progress.
DHS filed a petition for termination of appellants’ parental rights on several grounds.
The court held the termination hearing on September 28 and October 28, 2010. Both
appellants attended with their attorneys and tested negative for drugs. Testimony was given
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by Amanda Thompson, a family-service worker, and Terry Blanchard, a supervisor with the
Craighead County Division of Children and Family Services. Dr. DeRoeck testified by
telephone. Joel testified but Shawna did not.
On November 19, 2010, the circuit court entered an order terminating appellants’
parental rights on the grounds that they had failed to rehabilitate themselves and correct the
conditions that caused removal while the children had continued out of their custody for
twelve months, despite a meaningful effort by DHS to rehabilitate them. It found that the
parents had failed to comply with the case plan and the court orders by not having stable
housing. The court also found that Shawna had not resolved her controlled-substances issues;
had not provided proof of attending NA/AA meetings; had not completed a court-ordered
inpatient rehabilitation program; and had not completed an anger-management course.
The court also found that, subsequent to the filing of the original petition, other factors
or issues had arisen demonstrating that return of the children to appellants’ custody was
contrary to the children’s health, safety, or welfare, and that, despite the offer of appropriate
family services, appellants had manifested the incapacity or indifference to remedy the
subsequent issues or factors.1 The court made the following findings:
1
Arkansas Code Annotated section 9-27-341(b) (Repl. 2009) provides in relevant part:
(3) 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:
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The Court finds that the parents have failed to comply with the case plan and
the orders of the Court in that the father’s recent compliance with the case plan and
court are troubling in that the father does not have adequate resources to care for the
children based upon his testimony of earnings versus expenses. Due to the father
recently acquiring a home, the Court has concerns whether the father can demonstrate
the ability to maintain a household on his present earnings. The Court finds that there
is a lack of time to see if the father can maintain his sobriety. The Court makes a
finding that Dr. DeRoeck’s testimony is credible, in that the psychological evaluation
indicates that Mr. Jessup is prone to relapse and recommended alternate placement of
his children. The Court is concerned by the testimony of Dr. DeRoeck as to the
father’s mental health and that the father’s history requires additional time to ensure
his stability which makes the father’s recent compliance more problematic. The Court
finds the father, has been through several rehabilitation programs without continued
(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:
(i)(a) That a juvenile has been adjudicated by the court to be dependentneglected and has continued 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.
....
(vii)(a) That other factors or issues arose subsequent to the filing of the
original petition for dependency-neglect that demonstrate that return of
the juvenile to the custody of the parent is contrary to the juvenile’s
health, safety, or welfare and that, despite the offer of appropriate family
services, the parent has manifested the incapacity or indifference to
remedy the subsequent issues or factors or rehabilitate the parent’s
circumstances that prevent return of the juvenile to the custody of the
parent.
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success. The Court finds the mother has been non-compliant with the Court orders
and the case plan. The mother has not completed anger management classes, the
mother has not completed domestic violence classes. The Court finds that the mother
has exhibited poor judgment in who the mother has chosen as a boyfriend who has an
extensive criminal history. The mother, is non-compliant in that she has not provided
proof of attending NA/AA meetings, the mother has not completed a court ordered
in-patient rehabilitation program.
The court found, by clear and convincing evidence, that it was in the best interest of
the children to terminate appellants’ parental rights, and stated that it had specifically
considered the likelihood that the children would be adopted and the potential harm to their
health and safety of returning them to appellants’ custody. The court found that the foster
parents wanted to adopt both children and added:
The Court finds that the mother does not have appropriate or suitable housing for the
children to return home to her. The Court finds the mother has unresolved drug
issues. The Court finds the mother lacks financial resources to provide for housing and
the other basic needs of the children. The Court finds the mother’s boyfriend has a
criminal background that would pose a safety concern for the children. . . . The Court
finds the father has made progress but progress has been very recent. The Court finds
that stable housing was an issue for the family at the time of removal, and currently the
father has provided insufficient income to meet the needs of the children to provide
stable housing. The father gave testimony that he receives only six hundred dollars a
month in social security and that his rent costs five hundred and seventy five dollars.
The court finds the father has only recently completed what has been asked of
him. The father completed parenting classes on September 13, 2010; the father
completed his twelve step program on September 11, 2010; the father completed his
non Arkansas accredited residential program on September 26, 2010 two days before
the termination of parental rights hearing began. The Court finds the testimony of the
Dr. George DeRoeck to be credible.
Appellants filed timely notices of appeal.
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We review cases involving the termination of parental rights de novo. Welch v.
Arkansas Department of Human Services, 2010 Ark. App. 798, ___ S.W.3d ___. The grounds
for termination 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 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. The termination of parental rights is a two-step process that
requires the circuit court to find that the parent is unfit and that termination is in the best
interest of the child. Id. The first step requires proof of one or more of the statutory grounds
for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration
of whether the termination of parental rights is in the children’s best interest. Ark. Code Ann.
§ 9-27-341(b)(3)(A). This includes consideration of the likelihood that the juvenile will be
adopted and the potential harm caused by returning custody of the child to the parent. The
court, however, does not have to determine that every factor considered be established by
clear and convincing evidence. Welch, supra. Instead, after considering all of the factors, the
evidence must be clear and convincing that termination is in the best interest of the child. Id.
Additionally, the circuit court is not required to affirmatively identify a potential harm or to
find that actual harm would result if the child were returned to the parent. Davis v. Arkansas
Department of Health & Human Services, 98 Ark. App. 275, 254 S.W.3d 762 (2007).
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We first address the motion to withdraw. Pursuant to Linker-Flores v. Arkansas
Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6-9(i) of the
Rules of the Arkansas Supreme Court and Court of Appeals, Shawna’s attorney has filed a nomerit brief asserting that there are no issues of arguable merit for appeal and a motion
requesting to be relieved as counsel. The clerk’s packet to Shawna was returned as unclaimed.
Shawna moved for a directed verdict, asserting that there was insufficient evidence that
the children were likely to be adopted; that there was potential harm to them if they were
returned to her; that she had not remedied her drug use; that “other factors” had arisen; that
she had abandoned her children; and that she had failed to support them. The court granted
this motion as to the support and abandonment issues but ruled against her on all other bases.
We agree with Shawna’s attorney that it would be frivolous to argue that DHS failed to prove
its case. At the time of the termination hearing, the children had been out of Shawna’s care
for over twelve months, and she had failed to remedy the conditions that had caused them to
be removed from her custody. As “another factor,” she moved in with a man with a lengthy
criminal history after the case began. With regard to the best-interest analysis, the case worker
testified that the foster family was interested in adopting the children together. Shawna did
not follow Dr. DeRoeck’s recommendations and utterly failed to remedy her drug problems,
having tested positive for every drug screen until the permanency-planning hearing held in
April 2010. She failed to complete a drug treatment program. At the time of the termination
hearing, she was still living with her boyfriend with a criminal history, who was the subject
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of a no-contact order, even though she was fully aware that her living with him would likely
prevent reunification with her children. She was unemployed, other than cleaning motel
rooms for $3 a room. We find that Shawna’s attorney has complied with the requirements for
no-merit briefs and that Shawna’s appeal is wholly without merit. Consequently, we grant the
motion to withdraw and affirm the termination of Shawna’s parental rights.
We now address Joel’s argument that the trial court erred in finding that termination
of his parental rights was in the children’s best interest. At the end of the termination hearing,
the circuit court issued a lengthy ruling from the bench, noting Joel’s recent efforts:
[T]he Court finds that his mental health concerns as raised by Dr. DeRoeck are
certainly a factor, and in fact, Dr. DeRoeck was concerned. I’ve seen many
psychological evaluations by Dr. DeRoeck, and Dr. DeRoeck actually recommended
alternative placement of Mr. Jessup’s children. And even following a period of
recovery and stabilization on medication, there was consideration for supervised
visitation only based upon that evaluation. The Court does want to note that Mr.
Jessup has made progress in this case, and, at this point, I’ll go ahead and say that if we
were at the point of the Permanency Planning Hearing where I had to consider
whether the father had made significant measurable progress toward reunification and
whether he had made diligent efforts toward reunification my opinion in that
particular hearing would likely be that Mr. Jessup compliance would earn him an
additional three months to work toward reunification. But, at this point, where we are
in the case we’ve already been through and I think the Court did allow some
additional time, and quite frankly that additional time was granted based upon
concerns the Court had about the Department failure to offer certain services. But, at
this point as we stand here today, even though that progress has been made and the
compliance has been made the Termination Statute specifically addresses what happens
with compliance on the eve of termination . . . . Let me restate that 9-27-341
subparagraph (a)(4)(A) the statute says a parent resumption of contact or overtures
toward participating in the Case Plan or following the Orders of the Court following
the Permanency Planning Hearing and preceding the Termination of Parental Rights
Hearing is an insufficient reason to not terminate parental rights. The Court notes that
stable housing was an issue for the family at the time of removal . . . and stable housing
is still an issue. I know that since the first day of the Termination Hearing the father
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had obtained housing, but I can’t imagine anything much more on the eve of
termination than finding housing and the first day of the hearing and the conclusion
of the hearing today. And even though that is commendable, that’s not enough time
to demonstrate stability given the history especially. There is also concern . . . about
health and safety, the father has testified he receives $600 and something in his words
in Social Security Benefits per months, and he has testified he has $575 dollars in
monthly expenses for housing alone. The Court . . . believes that is insufficient income
to meet the needs of these children especially given the fact that one of these is a
special needs child. The Court finds that proof was submitted that Mr. Jessup had
completed parenting only on . . . September 13 of 2010. Mr. Jessup submitted proof
that he completed the 12-step program on September 11, 2010, and he completed a
lengthy, and again that is commendable, but a lengthy problem [sic] but only two days
before the Termination Hearing began. And those things contribute to the Court’s
concern about the health and safety of the children if returned to either parent.
Citing Prows v. Arkansas Department of Health & Human Services, 102 Ark. App. 205, 283
S.W.3d 637 (2008), Joel argues that the circuit court committed error in misstating the
termination statute regarding last-minute efforts; in not giving adequate weight to the progress
that he had recently made; and in failing to give him another three months to “prove his
worthiness.” We do not agree. In Prows, the circuit court expressly refused to even consider
the mother’s recent improvement because it construed the termination statute as preventing
it from doing so. This court reversed, stating that, although last-minute improvements will
not outweigh a petition for termination, the circuit court must consider and weigh that
evidence. In the case at bar, the circuit court’s understanding of the statute’s requirements was
demonstrably correct because it clearly did consider and weigh the evidence of Joel’s recent
improvements in arriving at its decision.
The circuit court considered the evidence of Joel’s release from an unaccredited drug
program and his completion of parenting classes shortly before the first day of the termination
17
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hearing, as well as his attainment of housing between the first and second days of the trial, in
the context of all of the evidence presented at trial. That evidence demonstrated that the
unaccredited treatment program Joel attended, while helpful with his drug problems, did not
offer any services to address his profound and longstanding mental problems, about which Dr.
DeRoeck wrote at length. At the time of the termination hearing, Joel had not demonstrated
his ability to remain sober in an unstructured environment for a significant time period. This
was especially important in light of his admission that he had battled drug addiction and had
attended at least ten periods of rehabilitation since he was a teenager. Without any other
resources, his disability benefits were inadequate to provide a home and all other necessities
for his children. Although Joel did make commendable progress in attaining sobriety, he did
not, unfortunately, demonstrate similar progress in achieving sufficient mental health and
stability to be a parent to his children. On this record, we cannot say that the trial court
clearly erred in finding that termination of Joel’s parental rights was in the children’s best
interest.
Affirmed; Shawna Jessup’s counsel’s motion to withdraw granted.
G LADWIN and B ROWN, JJ., agree.
18
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