Hampton v. Arkansas Department of Human Services

          APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT [NO. 64JV-17-37] HONORABLE TERRY SULLIVAN, JUDGE

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

          Andrew Firth, Office of Chief Counsel, for appellee.

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

          N. MARK KLAPPENBACH, Judge

         Appellant Rachel Hampton appeals from the April 2, 2019 order of the Scott County Circuit Court terminating her parental rights to her three children: her daughter KA, her son EA, and her son HSM.^[1] Rachel's counsel has filed a merit-based brief arguing that the circuit court's finding that statutory grounds were proved is clearly erroneous. Appellant Dante St. Michael appeals from the same order that terminated his parental rights to his son HSM. Dante's attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to Rule 6-9(i) (2019) of the Rules of the Arkansas Supreme Court and Court of Appeals and Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004). The clerk of this court mailed Dante a certified copy of his counsel's motion and brief, informing him of his right to file pro se points for reversal, but Dante filed no such points. In Rachel's appeal, we affirm the circuit court's order because it is not clearly erroneous. In Dante's appeal, we grant counsel's motion to withdraw and affirm the termination order because counsel is correct that there is no issue of arguable merit to raise on appeal.

         Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark. Dep't of Human Servs., 2016 Ark.App. 227, 491 S.W.3d 153. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Id. These must be proved by clear and convincing evidence, which is the degree of proof that will produce in the fact-finder a firm conviction regarding the allegation sought to be established. Id. We review termination-of-parental-rights cases de novo. Id. 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. 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. We defer to the circuit court on matters of witness credibility. Id.

         The evidence in this case, as it relates to Rachel and Dante, is as follows. Rachel and Dante lived together in Boles, Arkansas, a rural area in west central Arkansas. The children were taken into the custody of the Department of Human Services (DHS) in mid-December 2017, days after HSM's birth. Rachel used methamphetamine throughout her pregnancy. HSM had tested positive for methamphetamine and amphetamine, he was being given intravenous antibiotics, and he was on oxygen because he could not breathe on his own. Rachel grew, smoked, and sold marijuana and allowed EA, who was only about four years old, to be exposed to or use drugs. KA, who was about seven years old, reportedly had observed her mother have sexual intercourse and use drugs. Rachel would not get up to ensure KA attended school, so a concerned neighbor had taken KA into her home during the week.

         At the adjudication hearing in January 2018, Rachel stipulated to a finding that her children were dependent-neglected, and she was ordered to comply with certain case-plan requirements that included drug testing, parenting classes, a psychological evaluation, counseling, and obtaining and maintaining appropriate housing and employment. Dante was not found to have contributed to the initiating cause of dependency-neglect, but he was ordered to comply with the same case-plan requirements as Rachel.

         In April 2018, the matter was reviewed, at which time both Rachel and Dante were complying with the case plan. Dante was ordered to pay $26 per week in child support for HSM. The circuit court declined to order Rachel to pay child support for her children.

         The matter was reviewed again in July 2018. All three children had been placed together in the same foster home. Rachel and Dante had not fully participated in reunification services, so they were deemed noncompliant. Rachel was ordered to stop all illegal drug use, maintain sobriety, obtain appropriate housing, and arrange for the reinstatement of her driver's license. Rachel had started inpatient drug treatment at the end of June 2018. Dante was ordered to submit to a hair-follicle drug screen.

         In December 2018, a permanency-planning hearing was conducted. Rachel and Dante were not in compliance as neither had completed drug treatment and counseling, and they did not have appropriate housing. Rachel's only employment was "gathering eggs," and she did not have a driver's license or transportation. Although she had completed inpatient treatment in August 2018, she had not complied with the aftercare plan. She was scheduled for an outpatient assessment twice but canceled both appointments. Dante had not attended visitation regularly, he did not complete outpatient drug treatment, and he had been arrested in July 2018 on drug-related charges. The goal was changed to termination of parental rights and adoption based on the parents' failure to demonstrate meaningful progress.

         DHS filed a petition to terminate parental rights in February 2019 alleging the following statutory grounds: (1) out of custody of the custodial or noncustodial parent for one year and failure to remedy; (2) failure to provide material support or to maintain meaningful contact with the children; (3) subsequent other factors; (4) being sentenced to a substantial period of the child's life; and (5) aggravated circumstances, meaning little likelihood that further services would result in reunification. See Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2017). DHS also alleged that it was in the children's best interest to terminate all parental rights because the children were adoptable, and even if they were not adoptable, there was great potential harm in returning them to the parents because they were drug abusers and unable to provide even the most basic needs, and one parent (Dante) was incarcerated.

         The termination hearing was conducted in March 2019. Rachel tested positive for methamphetamine and amphetamine a week prior to this hearing, and she admitted using methamphetamine in January 2019. Rachel acknowledged that she is an addict, that she had not yet overcome her problem with meth, and that she had not done anything in the last six or seven months to address her drug addiction. She said she rescheduled her most recent assessment appointment because she woke up late. She said she had worked a long time as an egg gatherer making $150 to $200 per week, but she knew it was not enough to support her family. She was aware she needed to obtain a better residence or fix the one she was in to make it appropriate for her children; however, she did not want to move. Rachel added that she would have to pay a $3, 000 cash bond to Yell County to get ...