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, ...