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Middleton v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

February 13, 2019

ANITA MIDDLETON APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FJV-16-163] HONORABLE SHANNON L. BLATT, JUDGE

          Leah Lanford, Arkansas Public Defender Commission, for appellant.

          Ellen K. Howard, Office of Chief Counsel, for appellee.

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

          OPINION

          KENNETH S. HIXSON, Judge

         Appellant Anita Middleton appeals from the termination of her parental rights to her children M.H., F.M., and B.M., who range in age from nine to thirteen years old.[1] On appeal, Anita argues that the termination order should be reversed because there was insufficient evidence that termination was in the children's best interest. 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 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 (Supp. 2017); M.T. v. Ark. Dep't of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder 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).

         This case began when appellee Arkansas Department of Human Services (DHS) filed a petition for emergency custody of the children on March 28, 2016. An attached affidavit of a family-service worker stated that the Fort Smith Police Department had called DHS and reported that Anita had been arrested on drug charges. Anita was stopped by the police for not having tags on her vehicle as she was leaving a motel. Drugs and drug paraphernalia were found in the vehicle. Anita informed the police that F.M. and B.M. were in a motel room with a babysitter. The babysitter was also arrested. M.H. was at the house of a family friend. DHS took an emergency hold of the children. Anita was arrested for possession of methamphetamine with purpose to deliver, possession of marijuana with purpose to deliver, and possession of drug paraphernalia.[2]

         On March 28, 2016, the trial court entered an ex parte order for emergency custody of the children. In the emergency order, the trial court found that due to Anita's arrest, the children were left with no legal caregiver and that removal of the children from their mother was necessary to protect their health and safety. A probable-cause order was entered on April 20, 2016.

         The trial court entered an adjudication order on September 14, 2016, finding the children to be dependent-neglected. The trial court noted in the adjudication order that Anita remained incarcerated on drug charges. The goal of the case was reunification. Anita was ordered to contact DHS upon her release from jail; maintain stable housing, income, and transportation; submit to random drug screens; submit to a drug-and-alcohol assessment and complete any recommended treatment; achieve and maintain total sobriety; and resolve her pending criminal charges and comply with the terms and conditions of any criminal sentence.

         On December 30, 2016, the trial court entered a review order finding that Anita remained incarcerated and that the goal of the case remained reunification. On March 21, 2017, the trial court entered a permanency-planning order and determined the goal of the case to be concurrent goals of reunification and adoption. In the permanency-planning order, the trial court noted that Anita expected to be released from prison in April 2017.

         On July 17, 2017, the trial court entered a fifteen-month review order. In that order, the trial court found that there were compelling reasons to continue the goal of reunification because Anita had made remarkable progress since her release from prison and was participating in the Restore Hope drug-rehabilitation program. The trial court found that Anita had been complying with the case plan and was diligently working toward reunification. The trial court found that Anita shall have extended visitation with M.H. and B.M. beginning immediately; Anita was granted visitation with these children for two consecutive nights to coincide with Anita's work schedule in the home of the paternal grandparents where Anita was staying. The trial court ordered Anita's visitation with F.M. to be in accordance with the recommendation of the juvenile's treatment team.

         Another permanency-planning order was entered on December 13, 2017, wherein the case goal was stated to be reunification because Anita was complying with the case plan, making measurable progress, and diligently working toward placement in her home. The trial court stated that placement of the children in Anita's home was likely to occur within a time frame consistent with the children's developmental needs.

         The dependency-neglect case subsequently took a turn for the worse. On February 28, 2018, the trial court entered a review order finding that Anita had failed to comply with the case plan during this review period. The trial court found that Anita no longer had employment and that she had again begun to use methamphetamine. The trial court noted that Anita had tested positive for methamphetamine on a hair-follicle test. The children had been transitioned into a trial home placement with Anita, which was terminated due to Anita's relapse into drug use. After the positive hair-follicle test, Anita entered an ...


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