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Howell v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Divisions I, IV

March 8, 2017

RICKY HOWELL AND SUSAN HOWELL APPELLANTS
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72J-15-192] HONORABLE STACEY ZIMMERMAN, JUDGE

          Dusti Standridge, for appellant Ricky Howell.

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Susan Howell. Mary Goff, Office of Chief Counsel, for appellee.

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

          LARRYD. VAUGHT, Judge.

         Ricky and Susan Howell both appeal the Washington County Circuit Court's order terminating their parental rights to their three children, R.H., G.H., and L.H. We affirm the termination of both parents' parental rights.

         Ricky and Susan had been involved in a protective-services case in which they had both failed drug screens and in which the Arkansas Department of Human Services (DHS) had raised concern about the cleanliness of the house, bedbugs, the children's hygiene, and the parents' failure to provide the children with needed medications. The current case was initiated when the children were removed from their parents' custody after Ricky had called DHS and stated that he could not handle the children or the stress of raising them. On March 12, 2015, the circuit court found that probable cause existed to maintain the children in DHS custody due to the parents' illegal drug use and failure to provide a safe home. The circuit court found that DHS had previously provided a wide array of services to the parents through the protective-services case since October 24, 2014. The court ordered that the parents submit to a psychological evaluation, participate in individual counseling, not use illegal drugs, complete a drug-and-alcohol assessment, follow the recommendations resulting from that assessment, submit to weekly drug screens, obtain and maintain appropriate housing, and comply with the case plan and all court orders. It also granted visitation. Following the entry of the probable-cause order, DHS provided the Cherokee Nation of Oklahoma with notice that the children were eligible for membership.

         At the adjudication hearing on April 14, 2015, the court found the children dependent-neglected due to neglect and parental unfitness. The court found that 25 U.S.C. sections 1902, et seq., the Indian Child Welfare Act (ICWA), was applicable to the case because Susan is an enrolled member of the Cherokee Nation.

         On or about June 15, 2015, Ricky requested that, instead of attending inpatient substance-abuse treatment, he be permitted outpatient treatment in order that he not lose his SSI income, and the court permitted him to attend outpatient treatment. At the next review hearing, Susan was found to be complying with the case plan, but Ricky had tested positive for THC. The circuit court approved DHS's request that the couple be allowed to move to Oklahoma to receive services through the Cherokee Nation. The court specifically ordered the parents to address three issues: drug use, anger management, and their ability to parent special-needs kids. The court also found that DHS had made reasonable and active efforts toward reunification.

         At the permanency-planning hearing on March 16, 2016, the circuit court found by clear and convincing evidence that returning the children to Ricky and Susan's custody would likely result in serious emotional or physical damage to the children. The circuit court changed the goal of the case to adoption and found that the parents were not making substantial, measurable progress. It found that Susan had not shown that she could practice the parenting skills she had been taught, could not comprehend and meet the children's special needs, and could not care for herself without Ricky's help. Despite being compliant with the case plan, she had made minimal progress. The court also found that Ricky had not completed anger-management or outpatient-drug counseling, had not shown that he could put into practice the parenting skills that he had been taught, had not maintained his sobriety, had refused to take a hair follicle test, and had shown up in court with his hair shaved in order to avoid testing.

         DHS filed a petition to terminate Ricky and Susan's parental rights on April 15, 2016, alleging two statutory grounds for termination. First, DHS alleged that the juveniles had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the parents for twelve months and, despite a meaningful effort by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions had not been remedied. Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(a) (Repl. 2015). Second, DHS charged that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect, and that despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or rehabilitate their circumstances. Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii)(a).

         The termination hearing was held on July 15, 2016, after which the circuit court terminated Ricky and Susan's parental rights on both grounds alleged by DHS. The court made the findings beyond a reasonable doubt and further stated that it relied on qualified expert testimony that DHS had provided services and programs to prevent the breakup of the Indian family as required by the ICWA. These timely appeals followed.

         The 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); Hopkins v. Ark. Dep't of Human Servs., 79 Ark.App. 1, 83 S.W.3d 418 (2002).

         On appeal, both parents challenge the sufficiency of the evidence as to both statutory grounds. Regarding the court's finding that the appellants failed to remedy the conditions causing the children's removal, Ricky admits that he tested positive for illegal drugs in March and June 2016, but he contests the validity of those results. He also argues that it was error for DHS not to accept the results of a drug screen he claims was taken at his private doctor's office. Ricky claims that he had not used illegal drugs since approximately a month after the children were removed. Ricky's arguments fail to overcome the deference appellate courts give to the circuit court's superior opportunity and position to judge the credibility of witnesses. See Matlock v. Ark. Dep't of Human Servs., 2015 Ark.App. 184, at 6, 458 S.W.3d 253, 257. Moreover, the court was presented with witness testimony that Ricky was unable to manage the children at visitations and had interacted inappropriately with them. The record further reveals that the court had repeatedly found that Ricky was not in full compliance with the case plan due to his failure to complete court-ordered anger-management and drug-treatment programs. Based on a review of all the evidence, we do not conclude that the circuit court's finding that Ricky failed to remedy the causes of the children's removal was clearly erroneous.

         Susan's challenge to the court's failure-to-remedy finding is different: she claims that it was based on the court's previous finding of parental neglect and unfitness in the adjudication order and argues that the adjudication order failed to apply the higher burden of proof mandated by the ICWA. However, we cannot reach this issue because it has been waived. Pursuant to Rule 6-9(a)(1)(A) of the Arkansas Rules of Appellate Procedure-Civil, the adjudication order was a final, appealable order. Susan failed to file a timely notice of appeal from the adjudication order; therefore, we may not consider allegations that it contained error. Jefferson v. Ark. Dep't of Human Servs., 356 Ark. 647, 657, 158 S.W.3d 129, 135 (2004). Further, Susan did not object during the termination hearing when a certified copy of the adjudication order was entered into evidence. Thus, her argument is not preserved for appeal.

         Both parents also challenge the court's finding that the other-subsequent-factors ground supported termination of their parental rights. However, we need not address this issue, as only one ground is necessary to terminate parental rights. Vail v. Ark. ...


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