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Black v. Arkansas Department of Human Services and Minor Child

Court of Appeals of Arkansas, Division IV

October 31, 2018



          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 child.


         Tabatha Black appeals from the Scott County Circuit Court order terminating her parental rights to her son, S.N. On appeal, Black argues that it was not in S.N.'s best interest to terminate her parental rights. Specifically, Black asserts that because S.B., a sibling of S.N.'s, remained in her custody, the circuit court's potential-harm finding was in error. Black does not contest the statutory grounds for termination. For the following reasons, we affirm.

         An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2017). In determining whether termination is in the child's best interest, the circuit court must consider the likelihood that the child will be adopted if the termination petition is granted and 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, parents, or putative parent or parents. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) and (ii). Additionally, the Arkansas Department of Human Services (DHS) must prove by clear and convincing evidence at least one statutory ground for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). We do not reverse a termination order unless the circuit court's findings of clear and convincing evidence were clearly erroneous. Meriweather v. Ark. Dep't of Health & Human Servs., 98 Ark.App. 328, 255 S.W.3d 505 (2007). Because Black makes no challenge to the statutory grounds found by the circuit court to terminate her parental rights, the statutory-grounds decisions must be affirmed. See Benedict v. Ark. Dep't of Human Servs., 96 Ark.App. 395, 409, 242 S.W.3d 305, 316-17 (2006).

         In May 2014, S.N., who was four years old at the time, was removed from the custody of Black. S.N. was subsequently adjudicated dependent-neglected because Black "could not provide adequate supervision or housing for the juvenile as a result of her substance abuse." S.N. was eventually placed with his father, Jeffrey Newell. Black complied with the case plan only in part, and the circuit court found that her compliance was insufficient for reunification with S.N. Custody was awarded to Newell with supervised visitation to Black, and the case was closed.

         Four months after the case had been closed, S.N. was removed from Newell on an emergency basis after he was arrested concerning a fatal stabbing, thus leaving S.N. without a caretaker. Black appeared at the probable-cause hearing, as well as the adjudication hearing, without an attorney, and no appeal was filed from the adjudication order. However, the circuit court found that although Black, as the noncustodial parent, was not present when the incident that led to S.N.'s removal occurred, she was not a fit parent for purposes of custody at that time.

         At the first review hearing in March 2017, the circuit court found that Black was not in compliance with the case plan and court orders in that she was unemployed, was behind in child support, had failed to take the steps necessary to attend counseling with her son, and had tested positive for marijuana. Her compliance had not improved significantly as of the July 2017 permanency-planning hearing, and the court questioned whether she could parent S.N. because she had stated in court that it took her a week to function after attending court. Black had custody of another child--S.N.'s younger sister, S.B., throughout all the proceedings concerning S.N.

         On August 22, 2017, DHS filed a petition for termination of parental rights alleging that Black was unfit to take custody, that she had failed to provide support, and that further services would not benefit her. DHS also alleged that termination would be in S.N.'s best interest.[1] Eight weeks later, DHS filed a motion for continuance of the termination hearing, asserting that Black had shown "significant improvement over the last couple months and [had] completed most of her services." DHS sought additional time to allow Black to show consistency in her improvement. The court held a hearing on the motion and denied the continuance. As a result, DHS moved for dismissal of its petition, which the court granted. In the resulting order, the court ordered that the case be referred to DHS's Division of Children and Family Services (DCFS) central office and recommended that a new caseworker be assigned who was "independent of the case."

         On January 9, 2018, the court held a review hearing and found in the resulting order that Black had an appropriate home and lived with her two-year-old daughter, S.B., and that she had been employed through a temporary service. The order also noted that Black had testified that she had just started a full-time job at the humane society. The circuit court found that a church had been assisting Black in paying her bills and that she was to pay it back at $100 a month; the order also recognized that Black had a driver's permit and a vehicle, that she was visiting S.N. regularly and was attending family counseling, and that she had completed parenting classes. Black also underwent a psychological evaluation and a drug-and-alcohol assessment and completed a drug-and-alcohol safety program for a DWI conviction. However, the circuit court still found that it could not place S.N. with Black, despite commending her for being drug-free, because "she has issues of instability in her parenting and in finances and employment."

         On January 10, DHS filed another petition for termination of parental rights, alleging that while Black had been complying with the case plan and testing negative on her drug screens, Black had been relying on her church and its members for financial support and had opened a crowdfunding account on GoFundMe with an underlying falsified story seeking further financial support. DHS also alleged that while S.B. remained in Black's custody, Black had an "inability to parent two children" and that her psychological evaluation indicated "parenting issues."

         On March 27, 2018, the court held a hearing on the petition for termination of parental rights. The testimony reflected the history of the case as delineated in the court's orders, although the caseworker added that Black had recently tested positive for marijuana. The caseworker acknowledged, however, that S.B. was left in Black's care and custody even after ...

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