APPEAL
FROM THE MADISON COUNTY CIRCUIT COURT [NO. 44JV-17-20]
HONORABLE STACEY ZIMMERMAN, JUDGE
Tabitha McNulty, Arkansas Public Defender Commission, for
appellant Philip Hopfner.
Lightle, Raney, Streit & Streit, LLP, by; Jonathan R.
Streit, for appellant Robin Hopfner.
Andrew
Firth, Office of Chief Counsel, for appellee. Chrestman
Group, PLLC, by: Keith L. Chrestman, attorney ad litem for
minor children.
BART
F. VIRDEN, JUDGE
In this
termination-of-parental-rights case, both parents, appellants
Robin and Philip Hopfner, separately appeal the Madison
County Circuit Court's order terminating their parental
rights to JH.[1] The Hopfners argue that the circuit court
erred in its determination because termination of their
parental rights was not in the child's best interest. We
affirm.
I.
Relevant Facts
On
April 3, 2017, the Arkansas Department of Human Services
("Department") filed a petition for emergency
custody and dependency-neglect regarding JH (10/16/14), NP
(03/26/02), and JP (08/01/05).[2] In the affidavit to the petition,
the Department stated that on March 16, 2017, it received a
report of child maltreatment and neglect, and family service
worker Miranda Hall went to the Hopfners' home where she
performed a drug screen on Philip, who tested positive for
methamphetamine, amphetamines, MDMA, and THC. Philip did not
appear to be intoxicated at that time. Robin failed to
produce a sample and dropped the test cup in the toilet. Hall
advised the Hopfners to remain drug free and to clean the
home, and she told them that she would be back in a week to
check in. When Hall returned, the home had been cleaned, and
Philip tested negative for all substances. Robin again
dropped her cup in the toilet but produced a clean sample
later, and Hall suspected sample tampering. Hall advised the
Hopfners that she would return in a week.
On
March 27, Hall received word that Robin had become suicidal,
and she went to the Hopfners' home where she found Robin
distraught. Philip had driven away with JH without placing
the child in a car seat. A marijuana plant was found in the
home, and Philip was later arrested for manufacturing drugs
and child endangerment. On March 29, 2017, Hall returned to
the home and talked to Robin, who admitted using
methamphetamine and that she used someone else's urine
for the drug test. Robin stated that she knew Philip grew
marijuana in the home and that she believed he had also used
someone else's urine for the drug test. Robin explained
that she had instructed JP and NP to lie to the Department.
Hall obtained text messages between Robin and Philip and the
two older children regarding methamphetamine addiction,
selling drugs, leaving the children alone for long periods of
time, and telling them what to say to the Department. The
family had been involved with the Department since 2006;
however, no true findings of abuse or neglect had ever been
made against the Hopfners.
The
circuit court entered an emergency order on April 3, 2017. In
the order, the circuit court found that the children were
dependent-neglected and that it was contrary to their welfare
to return them to Robin's custody due to her drug use and
pending criminal charges.[3] Philip was incarcerated at the time of
removal. On April 6, the circuit court entered a
probable-cause order finding that due to both Philip's
and Robin's drug use, Philip's current incarceration
on felony drug charges and parole violation, and Robin's
instability, it was in the children's best interest to
remain in Department custody. Philip was allowed to have
visitation, but Robin was ordered to have no contact with the
children. The Department was ordered to provide services,
including drug-and-alcohol assessment and counseling, and the
Hopfners were ordered to remain sober, attend counseling,
submit to assessments, obtain stable employment, maintain a
stable home, demonstrate the ability to protect their
children from harm, resolve all criminal issues, and remain
in contact with the Department and their attorneys. The
juveniles were placed with their maternal aunt and uncle,
Jennifer and Timothy Williams.
On June
1, the circuit court entered an adjudication order in which
the it found by clear and convincing evidence that JH, JP,
and NP were dependent-neglected. Specifically, the court
found that the Hopfners used illegal drugs and failed to
ensure the children's safety. The court found that
"mother and father exposed the children to a lifestyle
of drugs," and the two older children had been diagnosed
with PTSD. The court allowed the Hopfners to have visitation
in a therapeutic setting with the approval of the
children's counselors. The Hopfners were ordered to watch
"The Clock is Ticking" video and obey all orders of
the court. The goal of the case was reunification.
On
August 16, 2017, Philip filed a motion for an emergency
hearing regarding visitation with JH. On September 22, the
court held a review hearing, and the pursuant order was
entered on September 26. In the order, the circuit court
noted that Philip had produced a certificate of completion of
parenting classes and that Robin had completed four hours of
parenting classes. The circuit court addressed Philip's
August motion regarding visitation, finding that "Robin
and Philip Hopfner placed these children in a living hell
(see adjudication order). These 3 children are all suffering
from post-traumatic stress disorder!" The court found
that the Department had "acted to the detriment of the
kids" by allowing JH to go on unauthorized, unsupervised
visits with the paternal grandparent and "various family
members under the guise of 'provisional' placement or
other such 'policy'". The circuit court found
that Robin and Philip had complied with some of the its
orders but found that custody could not be returned to the
Hopfners because of the extreme trauma from which the
children had not yet recovered and that neither Robin nor
Philip had demonstrated the ability to safely parent the
children. The circuit court ordered that neither parent was
allowed visitation with the children.
On
December 21, 2017, the circuit court entered a review order
in which it found that the Department's custody should
continue even though the Hopfners had complied with all the
court orders and the case plan. The court found that the
Hopfners had made some progress toward alleviating the causes
of the children's removal but that the children were
severely traumatized, and the Hopfners had not demonstrated
that they could safely parent the children. The court found
that the children were doing well in the Williamses'
care.
On
March 22, 2018, the Department filed a petition for
termination of the Hopfners' parental rights, citing
three statutory grounds: (1) that the children had been out
of the custody of the parents for twelve months and despite
Department efforts to rehabilitate parents and correct the
conditions, the conditions that caused removal have not been
remedied; (2) that other factors arising subsequent to the
filing of the original petition demonstrated that the parents
have manifested an incapacity or indifference to remedying
...