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Smallwood v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

December 11, 2019

CRYSTAL SMALLWOOD APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-18-117] HONORABLE THOMAS E. SMITH, JUDGE

          Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

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

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

          PHILLIP T. WHITEAKER, JUDGE

         Appellant Crystal Smallwood appeals a Benton County Circuit Court order terminating her parental right to her son, AM.[1] She challenges only the sufficiency of the evidence to support the grounds necessary for termination. Because the evidence was sufficient to support the grounds found by the trial court, we affirm.

         On February 13, 2018, Smallwood gave birth to AM while incarcerated at Wrightsville Prison. The Arkansas Department of Human Services (DHS) exercised a seventy-two-hour hold on the child because Smallwood did not have any family to act as a caregiver for the child.

         DHS filed a petition alleging dependency-neglect as a result of Smallwood's incarceration and the lack of a legal or appropriate caregiver or custodian for the child. The petition also noted that Smallwood had some mental health problems rendering her unable to care for the baby. The trial court adjudicated dependency-neglect in April 2018 based on Smallwood's incarceration and set the goal of the case as reunification with a concurrent goal of adoption.

         Smallwood was released from prison in June 2018. The court continued to monitor the compliance of both Smallwood and DHS at review hearings held in July, August, and November 2018. At each hearing, the court found that Smallwood had only partially complied with the case plan and the court's orders and that DHS had made reasonable efforts to provide services and achieve reunification. After each hearing, the court continued custody of AM with DHS. Throughout this hearing process, Smallwood was represented by counsel. It does not appear in our record that counsel ever objected to the trial court's finding of reasonable efforts by DHS.

         In the process of conducting these review hearings, the court became aware of the magnitude of Smallwood's mental health issues. The court also noted that Smallwood had lost custody of five other children, which it believed was cause for concern. Additionally, Smallwood was experiencing instability in housing and had been homeless on several occasions during the pending proceedings. The court indicated that it wanted to know from a psychiatrist if Smallwood had the capacity to care for AM and ordered Smallwood undergo a psychological evaluation.

         The court conducted a permanency-planning hearing in December 2018. By this time, the court had been informed that Smallwood suffered from substance-abuse issues in addition to the issues of her mental health. The court ordered a substance-abuse evaluation and treatment, if recommended; random drug testing; and parenting classes. The court found that AM could not be returned to Smallwood's custody at that time nor could it approve a plan to return AM to her custody within a reasonable time given her lack of housing. The court then changed the goal to adoption with a concurrent goal of guardianship.[2]

         In January 2019, DHS filed a petition to terminate Smallwood's parental rights, alleging several grounds for termination: twelve-month failure to remedy; subsequent other factors; aggravated circumstances-little likelihood of successful reunification; and involuntary termination of another child.[3] The court conducted a hearing on the petition and entered an order terminating Smallwood's parental rights to AM. The court found that AM was adoptable and that there was potential harm in returning AM to Smallwood's custody. As such, it was in AM's best interest that Smallwood's parental rights be terminated. The court further found that DHS had presented sufficient proof on several statutory grounds, including twelve-month failure to remedy; subsequent other factors, and aggravated circumstances-little likelihood of successful reunification. The court did not make a finding as to the involuntary-termination ground alleged in the petition.

         Smallwood appeals the termination decision, challenging the sufficiency of the evidence to support the statutory grounds for termination found by the court. Although the trial court found three grounds for termination and Smallwood challenges all three grounds, only one ground is necessary to support the termination. Brown v. Ark. Dep't of Human Servs., 2017 Ark.App. 303, 521 S.W.3d 183.

         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 fact-finder 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, ...


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