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Moore v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

February 11, 2015

LINDA MOORE APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILDREN APPELLEES

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. JV-13-173] HONORABLE BARBARA HALSEY, JUDGE

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

KENNETH S. HIXSON, JUDGE

Appellant Linda Moore appeals the August 2014 order of the Craighead County Circuit Court that terminated her parental rights to her two children: son RA born in October 2002 and daughter AD born in March 2006.[1] Appellant contends that neither of the two asserted grounds for terminating her parental rights was proved by clear and convincing evidence. Appellant does not challenge the finding that it was in the children's best interest to terminate parental rights. The Department of Human Services ("DHS") and the children's attorney ad litem filed separate briefs, asserting that termination of her parental rights was correct, not clearly erroneous, and should be affirmed. After conducting a de novo review, we affirm.

We review termination of parental rights cases de novo. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2013); M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997).

DHS alleged two grounds against appellant. The first ground was the "failure to remedy" ground, which is premised on Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a):

That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be 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.

The other ground was the "subsequent other factors or issues" ground found at Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). In making the "best interest" determination, the trial court was required to consider two factors, (1) the likelihood that the child will be adopted, and (2) the potential of harm to the child if custody is returned to a parent. Tucker v. Ark. Dep't of Human Servs., 2011 Ark.App. 430, 389 S.W.3d 1; Pine v. Ark. Dep't of Human Servs., 2010 Ark.App. 781, 379 S.W.3d 703.

Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved 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). Credibility determinations are left to the fact finder, here the trial court. Moiser v. Ark. Dep't of Human Servs., 95 Ark.App. 32, 233 S.W.3d 172 (2006).

The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home 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). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for the child. Camarillo-Cox v. Ark. Dep't of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005); Cole v. Ark. Dep't of Human Servs., 2012 Ark.App. 203, 394 S.W.3d 318; Tucker v. Ark. Dep't of Human Servs., 2011 Ark.App. 430, 389 S.W.3d 1. A parent's past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep't of Human Servs., 2013 Ark.App. 249, 427 S.W.3d 160. 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. Pine v. Ark. Dep't of Human Servs., supra.

In this case, appellant's children RA and AD were removed from her custody in early May 2013 based on inadequate supervision and her drug use. There is no dispute that the children remained out of her custody for at least a year, given that the termination hearing was not conducted until August 2014. There is no dispute that DHS provided meaningful effort to rehabilitate appellant; she was given drug screens and presented an opportunity to complete inpatient rehabilitation. On the "failure to remedy" ground, appellant argues that there lacked clear and convincing evidence that she failed to remedy the causes for her children's removal. Appellant contends that at the end of this case plan, she no longer had a drug problem and that the trial court clearly erred in finding otherwise. We disagree with her and affirm on this ground without reaching the merits of the other ground.

The event that precipitated an emergency taking of these children was appellant's failure to pick up her son RA from school. As evening approached, RA was taken to the police station, and when appellant finally showed up accompanied by her daughter AD, appellant admitted to having ingested illegal drugs. She tested positive for THC and methamphetamine. Appellant had a history of protective-service cases with these and her other four ...


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