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Hughes v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

October 25, 2017

ANNETTE HUGHES APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, EIGHTH DIVISION [NO. 60JV-15-755] HONORABLE WILEY A. BRANTON, JR., JUDGE.

          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          N. MARK KLAPPENBACH, JUDGE.

         Appellant Annette Hughes appeals the March 30, 2017 order of the Pulaski County Circuit Court that terminated her parental rights to her three children: son ZB born in November 2009, son CB born in March 2011, and daughter KB born in October 2012.[1]Appellant argues on appeal that the trial court's finding that it was in her children's best interest to terminate her parental rights is not supported by clear and convincing evidence. Thus, appellant argues, the trial court's termination order must be reversed. Her challenge specifically is that (1) the trial court failed to address the factor of ZB's adoptability, [2] and (2) there lacked evidence to support a finding of potential harm to the children if returned to her custody. We affirm.

         We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs., 2013 Ark.App. 715, 430 S.W.3d 851. 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); Dunn v. Ark. Dep't of Human Servs., 2016 Ark.App. 34, 480 S.W.3d 186. 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). 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. Yarborough v. Ark. Dep't of Human Servs., 96 Ark.App. 247, 240 S.W.3d 626 (2006). Credibility determinations are left to the fact-finder. Henson v. Ark. Dep't of Human Servs., 2014 Ark.App. 225, 434 S.W.3d 371. In resolving the clearly-erroneous question, a high degree of deference is given to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. Wallace v. Ark. Dep't of Human Servs., 2017 Ark.App. 376, 524 S.W.3d 439.

         Appellant does not challenge the trial court's finding of statutory grounds. Her argument is focused solely on the best-interest finding. The best-interest finding must be based on a consideration of two factors: (1) the likelihood that, if parental rights are terminated, the juvenile will be adopted, and (2) the potential harm caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Adoptability is not an essential element but is rather a factor that the trial court must consider. Singleton v. Ark. Dep't of Human Servs., 2015 Ark.App. 455, 468 S.W.3d 809. Testimony from a caseworker or an adoption specialist that the children are adoptable is sufficient. See Martin v. Ark. Dep't of Human Servs., 2017 Ark. 115, 515 S.W.3d 599. A trial court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. 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. Vail v. Ark. Dep't of Human Servs., 2016 Ark.App. 150, 486 S.W.3d 229; Caldwell v. Ark. Dep't of Human Servs., 2016 Ark.App. 144, 484 S.W.3d 719. 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. It is the "best interest" finding that must be supported by clear and convincing evidence after consideration of the foregoing factors. Vail, supra.

         With these legal principles in mind, we examine the evidence presented to the trial court. The Arkansas Department of Human Services (DHS) sought emergency custody of the children in May 2015 after appellant had been arrested for maintaining a drug premises. Law enforcement executed a warrant at her home and found methamphetamine, cocaine, marijuana, and prescription pain pills, as well as firearms within reach of the children. The children were then ages five, four, and two. Appellant admitted being on probation for a theft charge at that time, and she tested positive for marijuana. KB tested positive for methamphetamine and cocaine. Appellant subsequently stipulated to there being probable cause to remove the children.

         The children were adjudicated dependent-neglected following a July 2015 adjudication hearing. The trial court took judicial notice of an earlier juvenile case in which her parental rights had been involuntarily terminated to another child. The trial court found that appellant was selling drugs out of her home and that her drug activity put the children at serious risk of harm. The goal was family reunification. Appellant was ordered to submit to random drug-and-alcohol screens, submit to a psychological evaluation, complete parenting classes, follow any counseling and therapy recommendations, obtain and maintain stable housing and income, and clear up her legal issues.

         The matter was reviewed in a permanency-planning hearing in October 2015. Appellant was ordered to continue her efforts to comply with the case plan and to "resolve her criminal charges, " given that she had a jury trial scheduled for November 2015.

         The matter was reviewed again at a permanency-plan hearing in April 2016. The trial court found it troubling that the children had been in DHS custody for almost a year, that if only appellant's parental rights were at issue it would be "a clear case for termination" of parental rights, that her drug and firearms convictions had resulted in her being in prison, and that she was yet again pregnant. The trial court was concerned that these very young children deserved permanency and a chance to succeed in life, but they had had nothing but instability. The trial court changed the goals to concurrent goals of appropriate relative placement or adoption, authorizing but not requiring the filing of a petition to terminate parental rights. Ryan Bryant was deemed to be the father of ZB, CB's biological father was unknown, and Kevin Bailey (also in prison) was deemed to be the father of KB. KB's paternal grandmother, Joyce Bailey (Kevin Bailey's mother), was identified as a possible placement for KB. Ryan Bryant, although not the biological father of CB, was a possible placement for both ZB and CB. DHS recommended working toward relative placements if those were subsequently determined to be suitable.

         In June 2016, the attorney ad litem filed a petition to terminate all parental rights, asserting multiple statutory grounds. This petition was served on all parties at the June 2016 permanency-planning hearing. Appellant remained incarcerated, and no child's relative had yet been deemed an appropriate placement. Services were ordered to be provided to appellant, to the extent that they could be, given her incarceration. In this permanency-planning order, the trial court noted that there had been no real change for months; that it was "unimpressed" with ZB's father, who had only sparingly participated in counseling; and that he would have to participate meaningfully now if he was even to be considered as a placement. In January 2017, the attorney ad litem filed another petition to terminate all parental rights, and it was heard in February 2017. Appellant acknowledged that her children had been home when the SWAT team executed the search warrant on her house and found drugs and firearms. She had a prior felony conviction, so she was not supposed to have firearms, and she acknowledged that she had been dealing drugs out of her house. She had been released from prison in November 2016, but she would be on parole for four years. Also, she had a new baby but no job and no home of her own. She was struggling with finding a job due to her status as a recently released felon, but she was working with a homeless shelter (Our House) to acquire transportation, housing, and a new job. She said she had quit a job at McDonald's and was about to start work at the Waffle Bakery. Nonetheless, appellant thought that after more than a year and a half out of her custody, the children should just be given back to her. She thought she had gained "common sense" and would be very protective of her children.

         On cross-examination, the attorney ad litem confronted appellant with various photographs posted on her Facebook page of her and her sons "giving the finger." Although the photos were apparently taken and posted prior to the children coming into DHS custody, they nonetheless remained on her Facebook page. Despite smiling about it on the stand, ...


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