FROM THE PULASKI COUNTY CIRCUIT COURT, ELEVENTH DIVISION [NO.
60JV-14-1608] HONORABLE PATRICIA JAMES, JUDGE.
Lanford, Ark. Pub. Defender Comm'n, for appellant.
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
Tiffany Duckery appeals from an order of the Pulaski County
Circuit Court terminating her parental rights. On appeal, her
sole contention is that the trial court erred in finding that
the termination of her parental rights was in the
children's best interest in light of the complete lack of
credible evidence demonstrating the likelihood of
adoptability. We affirm.
December 8, 2014, the Arkansas Department of Human Services
(DHS) filed a petition for ex parte emergency custody and
dependency-neglect of Y.D., S.M., and P.M. In the affidavit
attached to the petition, DHS stated that a seventy-two-hour
hold was placed over the children on December 3, 2014, due to
neglect and parental unfitness. DHS had initially received a
referral after P.M. and appellant had tested positive for
cocaine at the time of P.M.'s birth. Appellant admitted
that she had used marijuana a couple of days before giving
birth but denied that she had used cocaine. Although
appellant was allowed to take her newborn home, the children
were removed after DHS received a call from a nurse with Dr.
Patricia Moss's office who stated that appellant was at
the office with the two younger children and that appellant
was delusional and homicidal. The trial court granted the
petition on December 8, 2014, finding that probable cause
existed for the removal. Subsequently, the trial court filed
a probable-cause order on December 15, 2014, and the trial
court ordered that appellant may have supervised visitation
at DHS contingent upon negative drug screens.
adjudication hearing was set for February 2, 2015. Appellant
stipulated that the children were dependent-neglected, and
the trial court, accepting the stipulation, found by a
preponderance of the evidence that the children were
dependent-neglected. At that time, the goal was set to be
reunification. Additionally, appellant was ordered to follow
all recommendations of the drug-and-alcohol assessment. On
May 20, 2015, the trial court after a review hearing changed
the goal to adoption, and a permanency-planning
hearing/termination hearing was set for October 12, 2015.
formally filed its petition for termination of parental
rights on September 10, 2015. DHS alleged three separate
grounds for termination under Arkansas Code Annotated §
9-27-341(b)(3)(B) (Repl. 2015): (1) that a parent has
abandoned the juveniles; (2) that other factors or issues
arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that placement of the
juveniles in the custody of the parent is contrary to the
juveniles' 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 the placement of the juveniles in
the custody of the parent; and (3) that a parent has
subjected the juveniles to aggravated circumstances.
termination hearing, the family service worker assigned to
the case, Jessica Warren, testified that the children were
all doing well in their foster homes and that there were not
any new medical or behavioral issues since the last court
hearing. She explained that the children were removed after
appellant and P.M. had tested positive for cocaine at
P.M.'s birth. She recommended a goal of adoption because
appellant failed to complete the services offered to her.
After the children were removed, appellant admitted to Warren
that she would test positive for cocaine on one occasion and,
in fact, tested positive for PCP on several other occasions.
Although a drug-and-alcohol assessment recommended that
appellant complete inpatient drug treatment, Warren testified
that appellant refused to do so because appellant did not
think that it would help her. Finally, while she admitted
that she was not an adoption specialist, she opined that the
children were adoptable because they did not have any severe
medical or behavioral disabilities and because families were
more willing to adopt younger children.
testified on her own behalf. She admitted that she had used
drugs during the pendency of this case. She additionally
admitted that she did not complete all the services that were
recommended, including inpatient drug treatment, because she
only "did the [services] that [she] believe[d] in."
She further testified that she did not attend visits with the
children because she could not handle seeing her children and
then not be able to take them home with her.
trial court filed an order terminating parental rights on
December 17, 2015, finding that DHS had proved by clear and
convincing evidence all three grounds for termination as
alleged in the petition. The trial court additionally found
by clear and convincing evidence that termination was in the
children's best interest after taking into consideration
the likelihood that they would be adopted and the potential
harm if they were returned to appellant's custody.
Regarding the children's adoptability, the trial court
specifically stated that
[t]he Department has an appropriate plan for permanent
placement for the juveniles. The appropriate plan is
adoption. While Ms. Warren said she was not sure if a
matching list had been run, the Court finds her testimony
about the adoptability of the children to be credible. She
has been the family service worker on this case since the
case first opened. The court believes Ms. Warren has the
general casework experience, and experience regarding these
three children specifically, to provide informed testimony
about the adoptability of these children. The Court has taken
adoptability into consideration in making its findings today.
timely appeal followed.
court's order terminating parental rights must be based
on findings proved by clear and convincing evidence. Ark.
Code Ann. § 9-27-341(b)(3). Clear and convincing
evidence is defined as that degree of proof that will produce
in the fact-finder a firm conviction as to the allegation
sought to be established. Posey v. Ark. Dep't of
Health & HumanServs., 370 Ark. 500, 262
S.W.3d 159 (2007). On appeal, the appellate court reviews
termination-of-parental-rights cases de novo but will not
reverse the trial court's ruling unless its findings are
clearly erroneous. Id. 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 ...