FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-15-757]
HONORABLE STACEY ZIMMERMAN, JUDGE.
Tabitha McNulty, Arkansas Public Defender Commission, for
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
LARRYD. VAUGHT, JUDGE.
Elliott appeals the Washington County Circuit Court's
permanency-planning order changing the goal of her
dependency-neglect case from reunification to termination and
adoption and the court's subsequent order terminating her
parental rights to her three children, A.G., C.G., and K.G.
We affirm both orders.
September 2015, the Arkansas Department of Human Services
(DHS) exercised an emergency seventy-two-hour hold on
Elliott's three youngest children after receiving a call
alleging that they had been physically abused by Lori's
boyfriend, Jerry Glass. The children had bruises and reported
physical abuse, and the affidavit of facts attached to the
petition indicated that Lori denied the abuse, blamed the
children, and was unlikely to protect them from future abuse.
Lori's daughter K.G. also revealed that, when Lori was
working nights, K.G. and Jerry Glass slept in the same
In its order awarding DHS emergency custody, the court noted
that DHS had been involved with the family and had provided
services since 2007. On DHS's recommendation, the
children were immediately placed in the custody of their
maternal grandparents, Robert and Margaret Elliott.
was discovered that the children's father, Rocky Graham,
was a member of the Cherokee Nation, and that the children
were therefore eligible to become members of the tribe, a
Cherokee representative intervened in the case, and it
proceeded under the federal Indian Child Welfare Act (ICWA).
case progressed, A.G. was placed with her sister, Katherine
Lammers, who is one of Lori's three adult children. K.G.
and C.G. remained with their maternal grandparents through
the permanency-planning hearing, but Robert Elliott testified
that he and his wife were "too old" to adopt any of
the children. Instead, at the time of the permanency-planning
hearing, DHS was looking into placing the two youngest
children with other relatives.
evidence at the permanency-planning hearing revealed that,
although Lori had been working the case plan and her
counselor had testified that she no longer had any concerns
that Lori would not protect her children, a DHS caseworker,
the Cherokee Nation representative, and Lori's father all
expressed serious concerns about Lori's current
truthfulness regarding her relationships with men and her
ability to protect her children. They testified that they
were concerned that Lori was continuing a long pattern of
relationships with inappropriate men, some of whom had
previously harmed her children, and that she would continue
to prioritize these relationships over her children's
well-being. Specifically, they noted that a week before the
hearing Lori was dishonest and evasive about her current
romantic relationships with two men, stating that they were
only "friends" but then later describing the sexual
dysfunction of one of these men and the fact that she
regularly spent the night at their houses when she was too
tired to drive home from work. The tribe representative,
Nicole Alison, also testified that Lori had become extremely
angry and had yelled at her over the phone for almost an hour
upon learning that the tribe's recommendation was to
change the case goal to termination of parental rights and
adoption. Lori testified that she was not romantically
involved with any men, had learned a lot through counseling,
and believed that she could now protect her children.
Following the hearing, the court changed the case goal from
reunification to termination and adoption.
then filed a motion for termination of parental rights on
January 10, 2017. A few months later (but before the
termination hearing), the court entered an amended
adjudication order that contained the findings required under
the ICWA (which the court had not known was applicable when
the first adjudication order was entered approximately
seventeen months earlier). Two days later, the termination
hearing was held, and the evidence presented was
substantially the same as at the permanency-planning hearing.
Following the hearing, the court entered an order terminating
Lori's parental rights, finding beyond a reasonable doubt
(pursuant to the ICWA) that returning the children to Lori
would put them at a serious risk of emotional or physical
harm, that termination was in their best interest, and that
termination was appropriate under two statutory grounds:
failure to remedy the conditions causing removal and other
subsequent factors. Lori filed a timely notice of appeal,
designating both the termination order and the
review findings in dependency-neglect proceedings de novo,
but the trial court's findings will not be reversed
unless the findings are clearly erroneous. Adkins v.
Ark. Dep't of Human Servs., 2017 Ark.App. 229, at 5,
518 S.W.3d 746, 750 (citing Ellis v. Ark. Dep't of
Human Servs., 2016 Ark. 441, 505 S.W.3d 678). 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
case is governed by the Indian Child Welfare Act of 1978,
codified at 25 U.S.C. sections 1901 through 1963. The ICWA
was enacted to "protect the best interests of Indian
children and to promote the stability and security of Indian
tribes and families" and provides "minimum Federal
standards for the removal of Indian children from their
families and the placement of such children in foster or
adoptive homes which will reflect the unique values of Indian
culture, and by providing for assistance to Indian tribes in
the operation of child and family service programs."
Allen v. Ark. Dep't of Human Servs., 2010
Ark.App. 608, at 8, 377 S.W.3d 491, 496 (citing 25 U.S.C.
§ 1902). The ICWA provides that no termination of
parental rights may be ordered in the absence of a
determination, supported by evidence beyond a reasonable
doubt, including the testimony of qualified expert witnesses,
that the continued custody of the child by the parent is
likely to result in serious emotional or physical damage to
the child. Id. at 8, 377 S.W.3d at 496. The
"beyond a reasonable doubt" burden required by the
ICWA is more stringent than the one imposed by the Arkansas
first point on appeal is that the court erred in changing the
case goal from reunification to termination and adoption at
the permanency-planning stage. Specifically, she argues that the
court should have considered relative placement as a
preference over termination and adoption when the evidence
showed that the children were currently living with
relatives. Lori relies on Cranford v. Arkansas Department
of Human Services, 2011 Ark.App. 211, 378 S.W.3d 851, in
which we reversed the termination of both parents' rights
because the child had already achieved permanency in the
custody of maternal grandparents and there was specific
evidence that continued contact and visitation with the
parents was in the child's best interest. In
Cranford, we acknowledged the important need for
stability, certainty, and permanency in a child's life
and recognized that the continued uncertainty of languishing
in the foster-care system is potentially harmful to children,
but we noted that the child in Cranford was, had
been, and would continue to be in the permanent custody of
his grandparents, who were willing to adopt him. We
specifically noted that termination did not provide
additional stability and permanency for the child in
Cranford because he would remain with his
grandparents regardless of whether the court terminated his
father's parental rights. Moreover, in Cranf ...