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Harbin v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

December 17, 2014

ANITA HARBIN, APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD, APPELLEES

APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT. NO. JV 2012-123. HONORABLE LEE WISDOM HARROD, JUDGE.

Leah Lanford, Arkansas Public Defender Commission, for appellant.

Tabitha Baertels McNulty, Office of Policy & Legal Services, for appellees.

RITA W. GRUBER, Judge. HARRISON and GLOVER, JJ., agree.

OPINION

Page 232

RITA W. GRUBER, Judge

Anita Harbin appeals the circuit court's May 8, 2014 order that terminated her parental rights to B.T., who was born on November 2, 2011.[1] Harbin challenges the circuit court's finding that statutory grounds of unfitness existed for termination. She also contends that there was not sufficient evidence to support the court's finding that B.T. would be subject to potential harm if returned to appellant's care. We affirm.

Our review of termination-of-parental-rights cases is de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Grounds for termination must be proven by clear and convincing evidence, which is such a degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Hughes v. Ark. Dep't of Human Servs., 2010 Ark.App. 526 . Our inquiry is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Id. Credibility determinations are left to the fact-finder. Schaible v. Ark. Dep't of Human Servs., 2014 Ark.App. 541, 444 S.W.3d 366.

The intent of our termination statute is to provide permanency in a minor child's life in circumstances where returning the child to the family home is contrary to the child's health, safety, or welfare, and where the evidence demonstrates that the return cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3) (Supp. 2013). The child's need for permanency and stability may override the parent's request for additional time to improve the parent's circumstances. Schaible, 2014 Ark.App. 541, at 8, 444 S.W.3d at 371. The issue is whether the parent has become a stable, safe parent able to care for the child. Id. The court may consider the parent's past behavior as an indicator of future behavior, and even full compliance with the case plan is not determinative. Id.

Page 233

Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Jessup v. Ark. Dep't of Human Servs., 2011 Ark.App. 463, 385 S.W.3d 304. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the " potential harm . . . caused by returning custody of the child to the parent[.]" Ark. Code Ann. § 9-27-341(b)(3)(B), (b)(3)(A) (Supp. 2013); Schaible, 2014 Ark.App. 541, 444 S.W.3d 366. In determining potential harm, which is forward-looking, the court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Dowdy v. Ark. Dep't of Human Servs., 2009 Ark.App. 180, 314 S.W.3d 722. There is no requirement to establish every factor by clear and convincing evidence; after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child. Jessup, 2011 Ark.App. 463, 385 S.W.3d 304.

In the present case, the Arkansas Department of Human Services (ADHS) filed its petition for emergency custody and dependency-neglect of B.T. on September 6, 2012. Attached to the petition was an affidavit by family-services worker Susan Morrow about visiting appellant's home on September 4, 2012, to investigate a report to the child-abuse hotline. According to the caller, an ambulance had been called because appellant " was out of her mind" and B.T. had been sent away with a family member. That day, when someone tried to wake appellant over concern about the length of time B.T. was sleeping, appellant began spinning in circles and calling out " Momma, Momma." A call to 911 was made, and the ambulance took appellant to the hospital for a possible overdose or reaction to something she had ingested. Morrow subsequently met with appellant, who said that her aunt took B.T. from the home and that B.T. was with appellant's cousin Carissa, whose last name appellant did not know. When Carissa returned B.T. to the home, Morrow saw appellant pick up B.T., walk a few steps, make a telephone call, and--with no apparent regard for the child in her arms--begin yelling into the phone and bending over. Appellant said that she did not use drugs, but she tested positive for methamphetamine and benzodiazepine. ADHS then took a seventy-two-hour hold on B.T., and she was placed in ADHS's legal custody by an ex parte order for emergency custody.

On September 26, 2012, the circuit court adjudicated B.T. dependent-neglected due to appellant's drug use and irrational behavior while supervising B.T. The court found that it was contrary to B.T.'s welfare to be returned to appellant's custody. The goal of the case was established as reunification. Appellant was ordered to cooperate with ADHS, follow the case plan, refrain from using or possessing controlled substances, submit to random drug screens, and obtain a drug-alcohol assessment and follow its recommendations.

At the February 20, 2013 review hearing, the circuit court again found that returning B.T. to appellant was contrary to B.T.'s welfare. The court found that appellant had partially complied with the case plan and court orders; specifically, she had failed to provide proof of drug therapy. The court stated that appellant needed " to work on stable housing, counseling, and providing documentation of completion of services." She was again ordered to cooperate with ADHS, follow the case ...


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