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Bentley v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division I

June 20, 2018

KIMBERLY BENTLEY APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE SEBASTIAN C O U NT Y C IRC U IT C O U R T, FORT SMITH DISTRICT [NO. 66FJV-14-513] HONORABLE LEIGH ZUERKER, JUDGE

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan Streit, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

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

          Klappenbach and Murphy, JJ., agree.

          OPINION

          LARRYD. VAUGHT, JUDGE

         Kimberly Bentley appeals the order entered by the Sebastian County Circuit Court terminating her parental rights to her daughter, C.J. (born July 3, 2014). On appeal, Bentley argues that the circuit court clearly erred in finding that the Arkansas Department of Human Services (DHS) proved grounds to support the termination order and that termination was in C.J.'s best interest. We affirm.

         On September 8, 2014, DHS filed a petition for emergency custody and dependency-neglect, alleging that on September 5, 2014, it had exercised a seventy-two-hour hold over then two-month-old C.J. The affidavit attached to the petition alleged that on September 5th, C.J. had been taken to the emergency room where it was discovered that she had injuries consistent with shaken-baby syndrome along with a healing clavicle fracture. The affidavit further alleged that C.J. had been in the care of Bentley and her live-in boyfriend, Jacob Jeffrey; that Bentley had reported that C.J. had choked on her formula, went limp, and stopped breathing; and that the history reported was not consistent with C.J.'s injuries. An ex parte order for emergency custody was entered on September 8, 2014, and a probable-cause order was entered on October 2, 2014.

         An adjudication hearing was held on October 30, 2014, during which Dr. Karen Farst of Arkansas Children's Hospital testified. Dr. Farst stated that C.J. suffered from bilateral subdural hematomas and severe retinal hemorrhaging that were nonaccidental and were caused by violent shaking. Dr. Farst testified that C.J. also suffered from broken bones in her legs and collarbone and that at least one of the leg fractures was caused by abuse. Dr. Farst stated that the abuse endured by C.J. placed her life in danger. Based on Dr. Farst's testimony, the circuit court found that C.J. was dependent-neglected due to the substantial risk of harm as a result of physical abuse. The court ordered Bentley to comply with the case plan, which included: demonstrating improved parenting skills; complying with any counseling recommendations by her psychological evaluation; complying with any treatment recommended by her drug-and-alcohol assessment; submitting to random drug screens, hair-follicle testing, and alcohol swabs; attending and completing a "parenting without violence" class; obtaining and maintaining stable, safe, and appropriate housing; obtaining and maintaining stable employment with an income to support herself and C.J.; obtaining and maintaining a stable form of transportation; visiting regularly and appropriately; and maintaining steady contact with DHS. The goal of the case was reunification.

         After a May 14, 2015 review hearing, the circuit court entered an August 27, 2015 review order, finding that Bentley had "somewhat complied" with the case plan, stating that she had completed DHS parenting classes; submitted to a drug-and-alcohol assessment but had not begun the recommended outpatient treatment; tested positive for amphetamine/methamphetamine on May 6, 2015; submitted to a psychological evaluation, but because of her high level of defensiveness and her significantly elevated scores on the "lie scales, " it was invalidated and could not be interpreted for diagnosis or recommendation; begun "parenting without violence" classes, but her attendance and participation were not good; and visited C.J. regularly, but the visits were not appropriate. The goal of the case was reunification with the concurrent goal of termination of parental rights and adoption.

         In a November 20, 2015 permanency-planning order, the circuit court found that Bentley had maintained housing with her mother, was employed, had obtained her driver's license, relied on family members for transportation, completed additional parenting classes, visited regularly, and was attending outpatient treatment. DHS was ordered to refer Bentley for a second psychological evaluation. The goal remained reunification with a concurrent goal of termination and adoption.

         On May 3, 2016, DHS filed a petition for termination of parental rights against Bentley, [1] alleging three grounds: (1) failure to remedy, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Supp. 2017); (2) subsequent factors, section 9-27-341(b)(3)(B)(vii)(a); and (3) aggravated circumstances, section 341(b)(3)(B)(ix)(a)(3)(A), (B)(i). DHS further alleged that termination of parental rights was in C.J.'s best interest.

         A fifteen-month-review and permanency-planning order was entered on November 15, 2016, wherein the circuit court found that C.J. had been in DHS custody for twenty-five of her twenty-seven months of life and that Bentley had "checked the boxes" regarding her compliance with the case plan and made significant and measurable progress, although the court specifically noted that it was not making a finding as to whether she had satisfactorily completed services.

         Six days of termination hearings were held on November 18, 2016; November 21-22, 2016; December 2, 2016; December 8, 2016; and December 13, 2016. Seventeen witnesses testified. At the conclusion of the hearings, the circuit court orally granted DHS's petition to terminate Bentley's parental rights to C.J. In an order entered on March 1, 2017, the court found that DHS had met its burden of proof by clear and convincing evidence as to all three grounds pled in the termination petition and that termination was in the best interest of C.J. Bentley filed a timely notice of appeal.[2]

         Termination-of-parental-rights cases are reviewed de novo. Pine v. Ark. Dep't of Human Servs., 2010 Ark.App. 781, at 9, 379 S.W.3d 703, 708. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id., 379 S.W.3d at 708. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id., 379 S.W.3d at 708. 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. Id., 379 S.W.3d at 708. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id., 379 S.W.3d at 708. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id., 379 S.W.3d at 708. As with all issues addressing child placement, the appellate court affords heightened deference to the circuit court's superior position to observe the parties personally and weigh credibility. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 215, 40 S.W.3d 286, 292-93 (2001).

         In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration the (1) 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. Pine, 2010 Ark.App. 781, at 9-10, 379 S.W.3d at 708-09 (citing Ark. Code Ann. ยง 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2009)). Additionally, the circuit court must also find by clear and convincing evidence that one or more statutory grounds for termination ...


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