FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. 23JV-14-99.
HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE.
Appellant: Tabitha Baertels McNulty.
Appellee: Jerald A. Sharum, Keith L. Chrestman.
S. HIXSON, Judge. VIRDEN and BROWN, JJ., agree.
KENNETH S. HIXSON, Judge
Brandon Shaffer appeals the termination of his parental
rights to his daughter, HS, born in October 2012. The
child's mother, Amanda Flynn, consented to the
termination of her parental rights to HS, so she is not a
party to this appeal. Appellant contends that neither of the
statutory grounds alleged by the Department of Human Services
(" DHS" ) against him are supported by clear and
convincing evidence, such that reversal is mandated. We
disagree and affirm.
Termination of parental rights appeals are reviewed de novo,
but our court does not reverse in the absence of clear error.
Dinkins v. Ark. Dep't of Human Servs., 344 Ark.
207, 40 S.W.3d 286 (2001); Drake v. Ark. Dep't of
Human Servs., 2014 Ark.App. 475, 442 S.W.3d 5. At least
one statutory ground must exist, in addition to a finding
that it is in the child's best interest to terminate
parental rights; these must be proved by clear and convincing
evidence. Ark. Code Ann. § 9-27-341 (Repl. 2015);
M.T. v. Ark. Dep't of Human Servs., 58 Ark.App.
302, 952 S.W.2d 177 (1997). 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); 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. Credibility determinations are left to the trial
court. Moiser v. Ark. Dep't of Human Servs., 95
Ark.App. 32, 233 S.W.3d 172 (2006).
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). 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 his or her 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, supra. 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, supra.
standard of review in appeals of termination of parental
rights is de novo, but we reverse a trial court's
decision to terminate parental rights only when it is clearly
erroneous. Ullom v. Ark. Dep't of Human Servs.,
340 Ark. 615, 12 S.W.3d 204 (2000); Mitchell v. Ark.
Dep't of Human Servs., 2013 Ark.App. 715, 430 S.W.3d
851; Brewer v. Ark. Dep't of Human Servs., 71
Ark.App. 364, 43 S.W.3d 196 (2001). A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with a
distinct and firm conviction that a mistake was made.
Wade v. Ark. Dep't of Human Servs., 337 Ark.
353, 990 S.W.2d 509 (1999); Knuckles v. Ark. Dep't of
Human Servs., 2015 Ark.App. 463, 469 S.W.3d 377;
Hopkins v. Ark. Dep't of Human Servs., 79
Ark.App. 1, 83 S.W.3d 418 (2002).
case, the trial court found that two statutory grounds
defined in Arkansas Code Annotated section 9-27-327(b)(3)(B)
had been proved to support terminating appellant's
parental rights. Those grounds were (1) the " aggravated
circumstances" ground, and (2) the " other
factors" ground. It is these findings that are
challenged on appeal. Appellant does not contest the "
best interest" finding made by the trial judge. If
either ground found by the trial court to be supported by
clear and convincing evidence is not clearly erroneous, we
are compelled to affirm.
Juvenile Code describes the " other factors" ground
as when other factors or issues arise subsequent to the
filing of the original petition for dependency-neglect that
demonstrate that placement of the child in the custody of the
parent is contrary to the child'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, preventing the
return of custody to the parent. See Ark. Code Ann.
§ 9-27-341(b)(3)(B)(vii)( a ). Here, the trial
court found that appellant had demonstrated a pattern of
instability, refused to address his substance-abuse issues,
was uncooperative with DHS, and failed to comply with the
case plan and case orders, such that despite the offer of
services, he was incapable of, or indifferent to, remedying
the subsequent issues. The Juvenile Code describes the "
aggravated circumstances" ground as when a parent has
subjected the child to abandonment, chronic abuse, extreme or
repeated cruelty, sexual abuse, or when a trial judge
determines that there is little likelihood that services to
the family will result in a successful reunification.
See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(
a ). Here, the trial court found that there was
little likelihood that additional services would result in
appellant reunifying with HS.
evidence showed that there had been a prior finding of
inadequate supervision as to HS's parents in August 2013.
Both parents admitted to regular use of methamphetamine, but
a case was not opened because DHS could not locate the
family. The present case was opened when HS was taken into
DHS custody in February 2014, after being summoned by law
enforcement to appellant's residence in Conway. The case
was open for the next year and a half. The hearing on
DHS's petition to terminate parental rights was conducted
in August 2015, and the order on appeal was filed in
primary concern with appellant was a substance-abuse problem,
mainly methamphetamine use. Appellant maintained that he did
not have a drug problem and that he did not need drug
treatment. Other concerns were appellant's sporadic
attendance to supervised visitation, his failure to maintain
contact with DHS, his failure to attend drug treatment, his
pending felony charges, his lack of a valid driver's
license, and his lack of stable housing and employment.
Appellant had five positive drug tests for methamphetamine
over the course of this DHS case. Appellant did have one
negative hair-follicle test in the days leading up to the
termination hearing. The judge found that appellant's
failure to attend inpatient rehabilitation or NA/AA meetings
was a major factor in this case, and given his denial of any
drug problem, there were no additional services to provide
appellant in order to successfully reunify appellant with his
argument as to " aggravated circumstances" focuses
on his single negative hair-follicle test prior to the
termination hearing, which he says shows three months of
sobriety. He adds that the trial court found him in partial
compliance over the course of this case, having recently
acquired an appropriate home and a job as well as having
completed parenting classes and counseling. His compliance
with the case plan in these respects, he argues, shows that
it was wrong to ...