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Romero v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

April 19, 2017



          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          N. MARK KLAPPENBACH, Judge

         This is an appeal from the order entered on October 4, 2016, by the Yell County Circuit Court terminating the parental rights of appellant Oscar Romero to his son VR, who was born in April 2015. Appellant does not contest the sufficiency of the evidence regarding statutory grounds to support terminating his parental rights. Appellant's argument on appeal is that the trial court clearly erred in concluding that termination of his parental rights was in VR's best interest. We affirm.

         The termination of parental rights involves a two-step process in which the trial court must find that the parent is unfit and that termination is in the child's best interest. Murray v. Ark. Dep't of Human Servs., 2013 Ark.App. 431, at 6, 429 S.W.3d 288, 292. An order terminating parental rights must be based on clear and convincing evidence, i.e., proof that will produce in the fact finder a firm conviction as to the verity of the allegation sought to be established. Hamman v. Ark. Dep't of Human Servs., 2014 Ark.App. 295, 435 S.W.3d 495. On appeal, the issue before us is whether the trial court's finding that the fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when the appellate court is, on the entire evidence, left with a definite and firm conviction that a mistake has been made. Id. In deciding whether a trial court's finding is clearly erroneous, we give great deference to its superior opportunity to observe the parties and to judge the credibility of witnesses. Id.

         In determining the best interest of the juvenile, a trial court must take into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Myers v. Ark. Dep't of Human Servs., 2011 Ark. 182, 380 S.W.3d 906. Adoptability is but one factor that is considered when making a best-interest determination. Hammam, supra. In considering potential harm caused by returning the child to the parent, the trial court is not required to find that actual harm would result or affirmatively identify a potential harm. Welch v. Ark. Dep't of Human Servs., 2010 Ark.App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability of a permanent home. Collins v. Ark. Dep't of Human Servs., 2013 Ark.App. 90. 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. Id.

         In this case, appellant had been incarcerated for the entirety of VR's life at the time of termination. Appellant contends on appeal that he needed a minimal amount of additional time in which to be released from prison and in which to demonstrate his stability as a parent. Appellant adds that his mother was a fit and willing relative available to care for VR until he could take custody of his son. Thus, he argues that the trial court's decision on "best interest" was not supported by clear and convincing evidence and must be reversed.[1] The Department of Human Services (DHS) and the child's attorney ad litem argue that the trial court did not clearly err.

         In order to assess appellant's arguments, we examine the chronology of events and the evidence presented to the trial court. DHS removed VR from his mother's custody shortly after his birth on April 29, 2015, due to the mother's use of methamphetamine and THC while she was pregnant. Appellant, a young man in his early twenties, was incarcerated at that time and had a multiple-felony record. In May 2015, the trial court found there to be probable cause to support removal of VR from his mother's custody; she stipulated to the existence of probable cause.

         In July 2015, VR was adjudicated to be a dependent-neglected child; the mother stipulated to this finding. A case plan was developed for the mother, focused primarily on addressing her drug-addiction issues, but she failed to remedy those issues and was convicted of criminal offenses while this DHS case was pending.[2] In the July 2015 adjudication order, it was noted that appellant testified that he had a tentative prison discharge date of November 2015.

         The matter was reviewed in October 2015, at which time appellant was deemed noncompliant with the case plan due to his incarceration and unavailability for services. Another review hearing was conducted in January 2016, followed by a permanency-planning hearing in April 2016, at which time appellant was appointed an attorney. At that hearing, appellant was noted to have been imprisoned for the entirety of VR's life and to be presently ineligible for parole due to disciplinary violations. Appellant testified at that hearing to his belief that the earliest possibility for his parole would be in August 2016. Appellant said that he was taking as many classes in prison as he could in order to try to obtain parole. In the permanency-planning order, DHS was given permission to perform a home study on appellant's mother, and the goal of the case was changed to termination of parental rights and adoption.

         In July 2016, DHS filed a petition to terminate parental rights in which DHS alleged that appellant had a substantial criminal history including theft, breaking or entering, robbery, and burglary; that VR was approximately fifteen months old and appellant had been incarcerated all of VR's life; that appellant's total current sentence would not be completed until VR was seven years old; and that this constituted a substantial period of VR's life. DHS further alleged that, with appellant's repetitive criminal history, there was little likelihood that additional time or services would result in successful reunification. DHS also alleged that termination of parental rights was in this child's best interest.

         The termination hearing was conducted in August 2016. Appellant, then age twenty-two, testified that he had never seen his son in person due to his incarceration. He testified that he had once been denied parole but that he had taken parenting and anger-management classes while in prison. Appellant stated that it would not be "too long" after he was paroled that he could become ready to care for his son. He thought he could be paroled in September 2016 and said that he had two potential jobs (as a painter and as a construction worker) ...

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