Allen v. Ark. Dep't of Human Servs.
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Cite as 2011 Ark. App. 288
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA10-1259
Opinion Delivered A PRIL 20, 2011
MICKEY ALLEN
APPELLANT
APPEAL FROM THE DESHA
COUNTY CIRCUIT COURT,
[NO. JV-2008–225-5]
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES and MINOR
CHILDREN
APPELLEES
HONORABLE TERESA A. FRENCH,
JUDGE
AFFIRMED
ROBERT J. GLADWIN, Judge
Appellant Mickey Allen’s parental rights were terminated by order filed September 13,
2010, in Desha County Circuit Court. On appeal he contends that there was insufficient
evidence to support the trial court’s order. We affirm the order terminating Allen’s parental
rights.
Statement of Facts
N.A. and A.A., ages two and one, respectively, were removed from their parents’
home by the Department of Human Services (DHS) on December 17, 2008, after A.A. tested
positive for amphetamines, cocaine, and methamphetamines at birth.1 On January 13, 2009,
1
The mother of the children, Kabal Burnett, was named as an original party to this
action and her parental rights were terminated by order filed May 12, 2010, from a hearing
held on March 9, 2010. However, Ms. Burnett is not a party to this appeal.
Cite as 2011 Ark. App. 288
in an agreed order, the trial court found probable cause existed for the children’s removal, that
the children were dependent-neglected, and that custody should be continued with DHS.
Both parents were ordered to follow the case plan, obey all orders of the trial court, cooperate
with DHS, attend and participate in individual and family counseling, attend and complete
parenting classes, submit to random drug screens, obtain and maintain stable employment,
housing, and transportation, and submit to a drug assessment and follow the recommendation.
By review order of April 8, 2009, the trial court found that neither parent had
complied with the case plan. Specifically, appellant had tested positive on January 23, 2009,
for cocaine and opiates, and the drug screen taken on April 1, 2009, would not “read” due
to the low temperature of the urine submitted. Appellant sought a DNA test to confirm
paternity of N.A., and the trial court ordered that DHS was relieved of providing services to
him until the DNA test was completed.
At the review hearing on May 12, 2009, appellant tested positive for cocaine, and the
trial court found that he had not complied with the case plan in that he had not paid for the
paternity testing that he had requested. The trial court ordered supervised visitation for both
parents and ordered appellant to continue to follow the orders set for him on January 13,
2009, to call DHS once a week, and to call DHS twenty-four hours in advance for
transportation.
A review hearing was held on July 14, 2009, wherein the trial court found that the
DNA test proved that appellant was the father of N.A. The trial court found that, since
paternity testing had been completed, appellant had attended all visitation and completed
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parenting classes. The trial court further found that appellant tested positive for crack cocaine
on May 12, 2009, June 17, 2009, and June 30, 2009, but tested negative for all drugs on July
14, 2009. Appellant was ordered to obtain a drug assessment and submit to random drugs
screens and test negative.
The trial court found that appellant had only partially complied with the case plan at
the review hearing held August 5, 2009, in that he had not visited the children on a regular
schedule, had failed to obtain housing and transportation, and had failed to begin his GED
classes. The previous orders for appellant continued with the added order for him to obtain
his GED. At the review hearing of October 20, 2009, appellant was ordered to continue to
follow all previous orders, attend every NA/AA meeting available in Dumas, Arkansas,
provide a sign-in sheet as his proof of attendance, and contact Delta Counseling for a
counseling assessment.
DHS filed a petition to terminate parental rights on December 1, 2009, and a
permanency-planning order was filed on that date changing the permanent goal for the
children to adoption rather than reunification. In the order, the trial court found that appellant
had been cooperative with DHS, completed in-patient drug treatment, and participated in
parenting classes. The trial court further found that appellant tested positive for cocaine on
November 18, 2009, and that he was not employed. The previous orders continued for
appellant.
By order entered May 12, 2010, from a hearing held March 9, 2010, the mother’s
parental rights were terminated. However, the trial court denied the petition to terminate
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appellant’s parental rights, finding that he had completed enough of the case plan and court
orders to warrant more time.
On May 12, 2010, a review order was filed wherein the trial court found that returning
custody to appellant was not in the best interests of the children, but continued the goal of
the case to be reunification with appellant. The trial court further found that appellant was in
partial compliance in that he had visited with the children twice since the last court date and
had let DHS know that he would miss visitation on March 17. However, the trial court noted
that appellant missed seven visitations. Appellant admitted to the trial court that he had not
attended the NA/AA meetings and that his driver’s license was suspended. The trial court
found that appellant had not made any payments on his fine, was living with his parents, and
had recently obtained a house. Previous orders for appellant continued.
DHS filed a second petition seeking to terminate appellant’s parental rights on May 14,
2010. After an extensive hearing, the trial court granted DHS’s petition and entered findings
on August 11, 2010, and an order terminating parental rights on September 13, 2010. In its
findings, the trial court stated,
I find that the father has failed to follow the Court’s Orders and failed to follow the
case plan. Mr. Allen has been unable to maintain stable housing throughout the period
of time the children have been in the [DHS]’s custody. He contacted the case worker
shortly before court to come and view the home and the testimony and the pictures
evidence that he is still not prepared to take custody of his two children. The home
was not adequately repaired, not adequately furnished and there was no food in the
home. It appeared that Mr. Allen was not even living in the home at the time. I
stressed to Mr. Allen at the last review hearing that if he was serious in regaining
custody of his children he needed to visit his children on every visiting day. The
testimony at the termination hearing was that Mr. Allen had visited very few of his
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visitation days with the children. Mr. Allen is self-employed, he sets his own schedule
and if he was genuinely concerned about regaining custody of his children he should
have made every visit. Mr. Allen has not even had the children in his home for one
overnight visit since the children were removed a year and seven months ago. Mr.
Allen does not have a valid driver’s license and admitted that he still owed fines that
have not been paid. . . . It appears that Mr. Allen only gets busy right before court to
try to accomplish things that should have been accomplished months ago. [DHS] has
made reasonable efforts to place the children with Mr. Allen, there have been home
visits, family visits, transportation, parenting classes, random drug screens, visitation
with the children, drug treatment, but the father remains no closer to being able to
parent the children.
After the formal termination order was entered, appellant filed a timely notice of
appeal, and this appeal followed. Appellant does not contest the trial court’s finding that
termination was in the children’s best interest, but argues that there was insufficient evidence
that he had failed to remedy the conditions causing removal of the children, thus eliminating
the sole ground relied upon by the trial court to terminate his parental rights. DHS and the
attorney ad litem disagree and argue that this court, on de novo review, can go to the record
to find grounds pleaded by DHS in its termination petition and affirm the circuit court’s
order.
Standard of Review
Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep’t of
Human Servs., 2010 Ark. App. 543. Grounds for termination of parental rights must be proven
by clear and convincing evidence, which is that degree of proof that will produce in the finder
of fact a firm conviction of the allegation sought to be established. Hughes v. Ark. Dep’t of
Human Servs., 2010 Ark. App. 526. The appellate inquiry is whether the trial court’s finding
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that the disputed fact was proven by clear and convincing evidence is clearly erroneous. J.T.
v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. In
resolving the clearly erroneous question, we give due regard to the opportunity of the trial
court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360
Ark. 340, 201 S.W.3d 391 (2005). Termination of parental rights is an extreme remedy and
in derogation of a parent’s natural rights; however, parental rights will not be enforced to the
detriment or destruction of the health and well-being of the child. Meriweather v. Ark. Dep’t
of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007).
In order to terminate parental rights, a trial court must find by clear and convincing
evidence that termination is in the best interest of the juvenile, taking into consideration the
(1) likelihood that the juvenile will be adopted if the termination petition is granted; and (2)
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. Ark. Code Ann. §
9-27-341(b)(3)(A)(i) & (ii) (Repl. 2009). Additionally, the trial court must also find by clear
and convincing evidence that one or more statutory grounds for termination exists. See Ark.
Code Ann. § 9-27-341(b)(3)(B). However, proof of only one statutory ground is sufficient
to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, ___
S.W.3d ___.
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Discussion
Appellant contends that there was insufficient evidence to support the trial court’s
determination that he had failed to remedy the conditions causing removal of the children.
He stresses his cooperation with DHS, citing his revelation to the caseworker where it was
that his son was being hidden by the child’s mother; his appearance at every hearing; his
cordiality to those involved in the case; his payment for paternity testing; and his work on the
case plan once he was found to be the father of the children. He points to his partial
compliance by August 2009, and claims that when the trial judge found him out of
compliance by failing to begin his GED classes, the previous order did not contain that
requirement. Appellant complains of the trial court’s order faulting him for failing certain tasks
despite those tasks not being included in the previous order, such as failing to enter counseling
or take GED classes.
He contends that even though he was in partial compliance, DHS sought to terminate
his parental rights. He asserts that the same day the motion to terminate was filed, a
permanency-planning order noting his accomplishments was also filed. He contends that his
accomplishments included cooperation with DHS; inpatient drug treatment; parenting classes;
submission to random drug screens; obtaining his own residence; missing only one visit with
the children; attending out-patient drug treatment; and enrolling in counseling the week prior
to the review hearing. He points out that the trial court found on March 9, 2010, that he had
completed enough of the case plan to warrant more time. Two months later, the trial court
chastised him for missing several visitations and for leaving the state during that time.
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However, appellant argues that he went to Texas to work and spent the money on furniture
for a home he rented for the children. He contends that he worked diligently to have the
income to accomplish all of the tasks ordered of him, yet the trial court was dissatisfied that
he could not manage thirteen tasks simultaneously.
Appellant argues that the caseworker’s testimony at the termination hearing—
regarding appellant’s failure to cooperate, his unsuitable housing, DHS’s inability to locate him
for random drug screens, and lack of changes in his status since the beginning of the case—was
belied by the trial court’s orders noting his partial compliance and the caseworker’s testimony
on cross-examination. He points out that she acknowledged that appellant’s home had
electricity and water, that the repairs that needed to be made were easily repairable, and that
the home was very close to being suitable.
He contends, therefore, that the evidence was insufficient to warrant termination of
his parental rights, which, he argues, was done based upon the sole ground that he had failed
to remedy the condition causing removal, despite being given in excess of one year to do so.
See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). He argues further that the specific ground
relied upon by the trial court does not pertain to him, as he was not the cause of his children’s
removal, and he was thus powerless to meet the condition of the statute—that he remedy the
condition causing removal. He maintains that the conditions that caused removal were the
result of the children’s mother’s conduct.
He cites K.C. v. Arkansas Dep’t of Human Servs., 2010 Ark. App. 353, ___ S.W.3d ___,
for the proposition that to permit termination of his parental rights because of the neglect
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perpetrated by the children’s mother is insupportable. In that case, fifteen-year-old K.C.’s
parental rights to her two-year-old child were terminated after K.C. had been found
dependent-neglected and her child, L.C., was found to be a dependent juvenile. When K.C.
was returned to her mother, the trial court changed the goal to termination of K.C.’s parental
rights, which was ultimately accomplished pursuant to section 9-27-341(b)(3)(B)(i)(a) (failure
to remedy conditions that caused removal with child out of parent’s custody for over twelve
months). We held that the trial court blurred the lines between K.C.’s case and her mother’s,
that it was impossible for K.C. to remedy the problems that caused removal because she was
not the cause of the removal of L.C., and that the record was void of any evidence as it
related to K.C. on that required element.
Further, we elected not to accommodate the request of the attorney ad litem. There,
as in the case before us, the attorney ad litem argued that this court can affirm based upon our
de novo review and ability to hold that other grounds for termination were proved even
when they were not stated in the circuit court’s order. See Ratliff v. Ark. Dep’t of Human
Servs., 104 Ark. App. 355, 292 S.W.3d 870 (2009); Smith v. Ark. Dep’t of Health & Human
Servs., 100 Ark. App. 74, 264 S.W.3d 559 (2007). In K.C., the particular ground upon which
the ad litem urged us to affirm was not alleged in the termination petition, argued at the
termination hearing, or used as a basis for the trial court’s termination decision, but instead
was being argued for the first time on appeal. K.C., supra. We further held that K.C. had no
notice that her parental rights might be terminated based upon her mental deficiencies, thus
violating her due-process rights. Id.
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The instant case is distinguished from K.C. in that, here, the termination petition
alleges that other factors or issues arose subsequent to the filing of the original petition for
dependency neglect that demonstrate that return of the children to appellant’s custody would
be contrary to their health, safety, or welfare and that, despite the offer of appropriate family
services, appellant has manifested the incapacity or indifference to remedy the subsequent
issues or factors or rehabilitate his circumstances that prevent return of the children to his
custody. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Appellant’s continued use of illegal
drugs shows an indifference to remedying the problems plaguing the family and potential
harm to the children. Further, appellant’s failure to follow the case plan, obey all court orders,
attend and participate in individual and family counseling, submit to random drugs screens,
obtain and maintain stable transportation, housing and a driver’s license, and attend every local
NA/AA meeting shows indifference or an inability to comply. Therefore, pursuant to section
9-27-341(b)(3)(B)(vii)(a), the trial court’s decision to terminate parental rights was not clearly
erroneous.
Affirmed.
V AUGHT, C.J., and H OOFMAN , J., agree.
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