APPEAL
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FJV-17-14] HONORABLE LEIGH ZUERKER, JUDGE
Janet
Lawrence, for appellant.
Andrew
Firth, Office of Chief Counsel, for appellee. Chrestman
Group, PLLC, by: Keith L. Chrestman, attorney ad litem for
minor children.
BRANDON J. HARRISON, Judge
Rema
Bailey appeals the termination of her parental rights to four
of her children.[1]She argues that the circuit court erred in
finding that she posed a risk of potential harm to her
children and that the Arkansas Department of Human Services
(DHS) failed to provide adequate services. We affirm.
On 9
January 2017, DHS petitioned for emergency custody of
Bailey's five children, who ranged from three months to
seven years of age. The affidavit attached to the petition
explained that DHS was notified in October 2016 after the
infant, K.B., was born with amphetamines in his system. DHS
opened a protective-services case in November and discovered
that K.B. had been admitted to Arkansas Children's
Hospital (ACH) on December 25. ACH voiced concern over the
parents' fighting at the hospital and their refusal to
participate in the case, including not assisting in changing
or feeding K.B. On 4 January 2017, Bailey was drug-screened
and was positive for methamphetamine. She denied using drugs
and blamed her husband for possibly putting drugs in her
food. At that time, a seventy-two-hour hold was placed on the
other four children; K.B. was discharged and a hold was
placed on him the next day. DHS discovered that three of the
children were heavily infested with lice. The affidavit also
noted a previous protective-services case, which was opened
due to environmental neglect and the parents' testing
positive for methamphetamine.
The
circuit court granted emergency custody and later found
probable cause to continue custody with DHS. In its
probable-cause order, the court ordered that the parents be
referred for a drug-and-alcohol assessment and marital
counseling and that both parents submit to a drug screen that
day (12 January 2017) and as requested by DHS.
In
March 2017, the court adjudicated the children
dependent-neglected. The parties stipulated to the
adjudication "based on parental unfitness due to
parental drug use." The court ordered the parents to
obtain and maintain stable and appropriate housing, income,
and transportation; complete parenting classes; complete a
drug-and-alcohol assessment and follow the recommendations;
complete domestic-violence classes; resolve all criminal
issues; and submit to random drug screens and hair-follicle
testing. The court noted in a September 2017 review order
that the parents had submitted to a drug-and-alcohol
assessment but needed to follow the recommendations of that
assessment.
The
circuit court conducted a permanency-planning hearing on 30
November 2017. The permanency-planning order, which was not
entered until 5 January 2018, continued the goal of the case
as reunification. The court found that the four older
children had begun a trial placement with Bailey, while K.B.,
who is medically fragile, remained in his foster placement.
The court also found that Bailey had obtained housing,
income, and transportation and had completed a
drug-and-alcohol assessment along with the recommended
treatment.
On 25
January 2018, a fifteen-month review hearing was held, and
the resulting written order, entered on February 2, noted
that Bailey had completed parenting classes and
domestic-violence classes. Bailey had also submitted to drug
screens, which had been negative. Bailey was ordered to
maintain order and cleanliness in her home, to not have
overnight visitors, and to not use any caregivers for the
children unless approved by DHS. It appears that another
review hearing was held four days later, on January 29, but
the written review order was not entered until April 24. In
that order, the court found that it was in the "best
interest of the juveniles that the goal of the case shall
continue to be adoption following termination." Prior to
this order, the goal of the case had been reunification.
However, on February 1, DHS removed the children from their
temporary placement with Bailey after it discovered that she
had been evicted from her housing, had lost her job, and had
been living in motels. DHS had also received the results of a
hair-follicle test submitted on January 25, which showed that
Bailey was positive for methamphetamine "well over the
cutoff which indicated a fairly serious relapse."
On 20
April 2018, DHS petitioned to terminate Bailey's parental
rights, alleging three statutory grounds for termination:
failure-to-remedy, subsequent-factors, and
aggravated-circumstances. See Ark. Code Ann. §
9-27-341(b)(3)(B)(i), (vii), & (ix) (Supp.
2017).
DHS also identified potential harm from Bailey's lack of
stability, her relapse in drug use, and her inability to meet
the needs of the children. After a two-day hearing, the
circuit court accepted Bailey's voluntary termination of
her parental rights to K.B. and found that it was in the
other four children's best interest that her parental
rights be terminated. In its written order, the court found
that DHS had proved the failure-to-remedy and
aggravated-circumstances grounds, that the children were
adoptable, and that the children would be at substantial risk
of harm if returned to Bailey because she had "not
demonstrated the necessary stability." The court also
found that "the domestic violence and the on again, off
again relationship between the parents is a risk for the
children given they [the parents] are not able to stay away
from each other." Bailey has now appealed the
termination order.
A
circuit court's order that terminates parental rights
must be based on findings proved by clear and convincing
evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017);
Dinkins v. Ark. Dep't of Human Servs., 344 Ark.
207, 40 S.W.3d 286 (2001). Clear and convincing evidence is
proof that will produce in the fact-finder a firm conviction
on the allegation sought to be established. Dinkins,
supra. On appeal, we will not reverse the circuit
court's ruling unless its findings are clearly erroneous.
Id. 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. In determining
whether a finding is clearly erroneous, an appellate court
gives due deference to the opportunity of the circuit court
to assess the witnesses' credibility. Id.
While
Bailey's argument on appeal is somewhat jumbled, it can
be divided into two primary issues: (1) whether DHS failed to
provide adequate services, and (2) whether the circuit court
erred in ...