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Lazaravage v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

January 24, 2018



          Tabitha McNulty, 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 child.

          N. MARK KLAPPENBACH, Judge

         This is an appeal from the order entered on June 26, 2017, by the Sebastian County Circuit Court terminating the parental rights of appellant Tara Lazaravage to her daughter GL, born in January 2016. Tara presents two points on appeal, asserting that the trial court committed reversible error (1) by not requiring compliance with the notice provisions of the Indian Child Welfare Act (ICWA) and (2) by clearly erring in finding that the Department of Human Services (DHS) proved any of the three alleged statutory grounds to support terminating her parental rights. 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. Brabon v. Ark. Dep't of Human Servs., 2012 Ark.App. 2, 388 S.W.3d 69. 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.

         DHS alleged three statutory grounds against Tara to support terminating her parental rights: (1) the "failure to remedy" ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a)(Supp. 2017); (2) the "aggravated circumstances" ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3); and (3) the "subsequent other factors or issues" ground, Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a). Tara challenges the trial court's finding that clear and convincing evidence supported any of these three grounds, although only one ground is necessary to sustain an order terminating parental rights. Vail v. Ark. Dep't of Human Servs., 2016 Ark.App. 150, 486 S.W.3d 229.

         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. Tara does not contest the trial court's "best interest" finding.

         With these legal principles in mind, we examine the evidence presented in this case. GL was brought into emergency DHS custody shortly after her birth in January 2016, based on allegations that Tara was acting erratically, exhibiting dramatic mood swings, and making statements about hurting GL. Tara had tested positive for amphetamines, and hospital staff thought she was in psychosis. GL tested positive for methamphetamine at birth. Tara admitted that she was essentially homeless, having lived in a tent city and various people's homes prior to giving birth to GL. She identified two men as possibly being GL's father, one of whom she accused of domestic violence.

         A probable-cause order was entered in January 2016. DHS was ordered to provide Tara with twice-weekly supervised visitation with GL and also to develop an appropriate case plan. The probable-cause order recited that Tara indicated that it was "possible" that she or GL might be of Indian heritage. The probable-cause order then provided as follows:

[Tara] is to provide [DHS] with complete names, maiden names and dates of relatives/ancestors who are members of or eligible for membership in an Indian Tribe. [DHS] has provided the mother with a "family tree" form in open court. She may use this form or otherwise convey the requested information to [DHS], but she is to do so forthwith. Upon receipt of information[1] that allows it to give meaningful notice, [DHS] is to give notice in compliance with ICWA.

         An adjudication order was entered in March 2016 finding that GL was a dependent- neglected child. The trial court found Tara to be an unfit parent due to her mental-health issues that threatened both Tara's and GL's safety and due to her drug use during pregnancy. A case plan was developed to assist Tara in rehabilitating the situation so that she could properly parent GL in a safe, stable environment.

         The matter was reviewed in July 2016. At that time, the trial court found that DHS had made reasonable efforts to assist Tara in her quest to have GL returned to her custody. Tara, however, was deemed noncompliant. She failed to obtain housing or employment. She did not complete parenting classes, nor did she submit to a psychological or drug-and-alcohol assessment. She tested positive for drugs, and she had been arrested more than once during this review period. Neither of the putative fathers had submitted to DNA testing, and both had ...

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