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Stanley v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

November 30, 2016

TIMOTHY STANLEY AND JENNIFER LONG, APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN, APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-15-983] HONORABLE WILEY A. BRANTON, JR., JUDGE

         AFFIRMED

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

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant Timothy Stanley.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          WAYMOND M. BROWN, JUDGE

         Appellants appeal from the circuit court's termination of their parental rights to T.S., born 3/4/2005, and C.S., born 9/5/2006.[1] On appeal, both appellants argue that there was insufficient evidence to support the circuit court's adoptability finding. Stanley makes the additional argument that there was insufficient evidence to support the circuit court's finding that there was potential harm in returning the children to his custody. We affirm.

         I. Facts

         An amended petition for ex parte emergency custody and dependency-neglect due to environmental neglect and parental unfitness was filed on March 8, 2013.[2] After receiving a report on February 27, 2013, a caseworker investigated the report on the same date and found that the home had no utilities and was unclean, as had been reported. A 72-hour hold was taken on the children on the same date. The circuit court entered an order giving appellants joint custody of the children and closing the case on October 4, 2013.[3] On July 9, 2015, a report was made alleging that appellants had unsuccessfully attempted to give away their children, threatened harm to the children, and had inadequate food. A caseworker investigated the report on the same date and found that the home was "deplorable"; had no electricity, gas or running water;[4] and had no food. Additionally, Stanley tested positive for THC, benzos, oxycodone, methamphetamine, and amphetamine. A 72-hour hold was taken on the children on the same date. On July 13, 2015, the Arkansas Department of Human Services (DHS) filed a petition for ex parte emergency custody and dependency-neglect due to parental unfitness, drug use by the parents, neglect, and environmental neglect. The circuit court entered an ex parte order for emergency custody on the same date.

         The circuit court entered a probable-cause order on July 30, 2015, finding that probable cause existed for the children's removal and still existed. On September 30, 2015, it entered an order adjudicating the children dependent-neglected, by stipulation and by a preponderance of the evidence. It found therein that the children had been subjected to aggravated circumstances in that it was unlikely that services to the family would result in successful reunification within a reasonable time from the children's perspective. Noting that it could immediately authorize a petition for termination of appellants' parental rights, it instead ordered reunification services to be provided "partially because there was a willingness to stipulate to a finding of dependency/neglect" by appellants. It deemed appellants unfit "for a variety of reasons including ongoing drug use, environmental neglect, and inadequate housing with lack of utilities (water and electric)." Noted in the order was that appellants had tested positive for amphetamines and methamphetamine on August 13, 2015.

         The circuit court entered a permanency-planning order on April 19, 2016.[5] The goal of the case was changed to termination of Stanley's parental rights as Stanley had "made an effort to comply with court orders, but no material progress [had] been made." In its findings, it specifically stated that "[w]ith the current case, history is repeating itself"; that even if Stanley had demonstrated fitness and custody was returned and the case was closed, "there is a concern that [he] would revert back to a practice of unfitness, as this is what happened after the previous case was closed"; and that "there are now two cases which share much of the same issues and concerns."

         It noted that the electricity has not been on in the home since the beginning of the summer and DHS had not been able to view the inside of the home. Stanley had tested positive for methamphetamines twice, [6] both screens had been at Stanley's request, and Stanley had testified that he screened positive "due to a former friend putting methamphetamine in his food when [Stanley] went over to the friend's home for dinner." Before authorizing DHS to file a petition to terminate appellant's parental rights, the circuit court stated that it was "disturbed at the parent's in-court demeanor"[7] and was really concerned about the father who was "silently agitated during the hearing" and whose testimony was "oftentimes bizarre, the result of psychosis, misrepresentation or both." Despite the authorization and a second finding of aggravated circumstances due to it being unlikely that services to the family would result in successful reunification within a reasonable time from the children's perspective, the court ordered services to continue.

         DHS filed its petition to terminate appellants' parental rights on March 11, 2016, asserting that termination of appellants' parental rights was in the children's best interests.[8]Following a hearing on April 19, 2016, the circuit court entered an order terminating appellants' parental rights on May 16, 2016. With regard to potential harm, it stated that it "specifically considered the potential harm to the health and safety of the juveniles caused by returning the juveniles to the parents and found that they would be exposed to the risk of harm of environmental neglect and drug use if returned." This timely appeal followed.

         II. Standard of Review

         We review termination-of-parental-rights cases de novo.[9] 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.[10] Clear and convincing evidence is defined as the degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established.[11] In making a "best-interest" determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted, and (2) the potential harm to the child if custody is returned to a parent.[12] The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous.[13] 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.[14] In resolving the clearly erroneous question, we must give due regard to the opportunity of the circuit court to judge the credibility of witnesses.[15]

         III. Adoptability

         Neither Stanley nor Long challenge the statutory grounds for termination; rather both argue that the circuit court's best-interest finding must be reversed. Both Stanley and Long argue that there was insufficient evidence to support the circuit court's finding that there was a likelihood that the children would be adopted. While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence.[16] A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding.[17] The trial court "must simply consider the likelihood that the children will be adopted-that factor need not, however, be established by clear and convincing evidence."[18] Our appellate courts have noted that, in considering the best interest of the child, there is no requirement that every factor considered be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child.[19]

         Long argues that the former caseworker's statement, when asked if the children were adoptable was a "bare statement" that did not "chin" the likelihood-of-adoption bar. The caseworker responded by testifying, "Absolutely because yeah, they love people. They're very personable to others." Long essentially argues that saying the children are adoptable is not the same as stating the likelihood that the children would be adopted, which is what is required by the statute.[20] Stanley argues that the former caseworker's statement regarding the children's adoptability was "merely an overly broad conclusion."[21] In support of his argument, Stanley relies on Haynes v. Arkansas Department of Human Services, [22] Grant v. Arkansas Department of Human Services, [23] and Kerr v. Arkansas Department of Human Services & Minor Children.[24] As discussed below, all are distinguishable.

         In its order terminating the appellants' parental rights, the circuit court stated the following:

This Court finds by clear and convincing evidence that it is in the best interest of the juveniles to terminate parental rights. In making this finding, the court specifically considered the likelihood that the juveniles will be adopted if the termination petition is granted, specifically the testimony of Tasha Washington who stated that she thought the children were adoptable and the testimony of the foster mother who testified that the children had made great progress in foster care and the children were intelligent.

         Immediately prior to being asked whether the children were adoptable, ...


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