APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72JV-18-142]
HONORABLE STACEY ZIMMERMAN, JUDGE
Tabitha McNulty, Arkansas Commission for Parent Counsel, for
appellant.
Andrew
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
RITA
W. GRUBER, CHIEF JUDGE
Appellant
Lisa Dominguez appeals the Washington County Circuit Court
order that terminated her parental rights to her daughter,
CD, who was born December 12, 2016. She does not challenge
the statutory grounds for termination or the potential-harm
or adoptability prongs of the best-interest determination.
Her sole argument on appeal is that termination was not in
CD's best interest because a less restrictive alternative
for CD's placement was available. We affirm.
I.
Procedural History and Testimony
This is
not the first time the Arkansas Department of Human Services
(DHS) has been involved with appellant. Her rights were
terminated to three other children in 2016, and a
protective-services case had already been opened on CD
because she was born with THC in her system. In February
2018, appellant and her boyfriend (Colton Lamb) were in a car
accident. CD, who was one year old at the time, was a
passenger but was not injured during the wreck. Hospital
personnel contacted DHS when appellant had not sobered up
after five hours. DHS exercised a seventy-two-hour hold on CD
on February 4, 2018, and a petition for emergency custody and
dependency-neglect was filed February 9, listing appellant as
the mother and Javier Dominguez as the father in the caption.
The
affidavit in support of the petition also listed Ronnie James
Corter as a putative father. According to the affidavit,
appellant was interviewed at the hospital and told the DHS
worker that she married Javier because she "thought DHS
wouldn't take [her] other kids away"; Javier is not
CD's biological father and they never lived together as a
family; Javier has never taken care of CD; and Corter is
CD's father. The affidavit provided that during
Javier's interview, Javier showed the worker CD's
birth certificate and a marriage license that indicated he
was married to appellant when CD was born. He was told that
appellant claimed he was not CD's biological father, but
he still indicated a willingness to care for CD. The
affidavit stated that Corter had been contacted, and he was
aware that appellant claimed he is CD's biological
father, but he indicated that she refused his requests for
DNA testing. The worker interviewed appellant again on
February 6 when she was with her "paternal aunt and
uncle Ruth and Terry Boldra, "[1] who said they were willing
to help her "get on her feet."
The
circuit court entered an ex parte order for emergency custody
on February 9, noting that DHS had been involved with the
family since 2015 and requiring them to provide the names,
addresses, and phone numbers of all adult grandparents,
relatives, and legal or putative fathers of CD. A
probable-cause hearing took place on February 14, which was
attended by appellant, Javier, Corter, and the Boldras. A
probable-cause order was entered on February 15, which
ordered appellant to obtain and maintain stable housing,
refrain from using illegal drugs, keep DHS up to date with
current addresses and telephone numbers, maintain a clean and
safe home for CD, resolve all criminal charges, and follow
the case plan and orders. The order identified Javier as
CD's "legal father" or "father." The
court appointed counsel for both appellant and Javier;
ordered DNA testing for Javier and Corter; ordered a home
study to be conducted by DHS on Terry Boldra, CD's
maternal great-grandmother, and if she did not pass the home
study, DHS was ordered to begin the Interstate Compact on the
Placement of Children (ICPC) process for Ruth and Kevin
Boldra.
On
March 9, the circuit court held an adjudication hearing,
which was attended by appellant, Javier, and Franciso
Saldaña-Gallardo, who was identified as a putative
father. The court adjudicated CD dependent-neglected as a
result of neglect and parental unfitness by appellant. It
also found that Javier was not a fit parent for purposes of
custody and visitation because he was "waiting on DNA to
show paternity."[2] The goal of the case was set as
reunification with a fit parent with a concurrent goal of
adoption. Appellant was ordered to have a psychological
evaluation, participate in counseling, submit to a
hair-follicle test, and submit to random drug screens.
Visitation was scheduled to occur twice a week under DHS
supervision. DHS was ordered to start the ICPC on Kevin and
Ruth.
A
review hearing was held on August 8. The August 9 review
order noted that the DNA test eliminated Javier as CD's
biological father and ordered the circuit clerk to remove him
from the case.[3] The circuit court found that appellant was
still married to Javier and is CD's stepfather and that
Javier had complied with all court orders and the case plan.
The court authorized Javier to participate in the case plan
and to attend visitation with appellant. The court continued
the goal of reunification and found that appellant had
complied with "some" of the case plan and orders
but had been unable to attend all visitations, attend NA/AA
meetings, participate in individual counseling, or complete a
psychological evaluation.
The
permanency-planning hearing was held on January 9, 2019, and
the circuit court changed the goal of the case from
reunification to adoption. The court found that appellant had
not complied with the court orders and the case plan because
she failed to maintain stable employment and housing, provide
DHS with address and phone- number changes, submit to all
random drug screens, attend NA/AA meetings, participate in
counseling, and attend visitation with CD. Appellant missed
two visits after the August review hearing and then went
missing for two months, during which time she failed to
attend visits with CD or contact DHS. Her last visit with CD
was September 26, 2018. The court found that appellant had
not made "measurable, sustainable, and genuine progress
towards alleviating or mitigating the causes" of
CD's removal. The court further noted that
appellant's termination of her rights to three other
children in 2016 as a result of illegal drug use and
instability and failure to remedy these issues are the same
issues that caused CD's removal. DHS was found to have
made reasonable efforts to provide family services to
finalize the permanency plan of reunification.
Regarding
Javier, the court found that he had complied with most of the
court orders and case plan but that it was not in CD's
best interest to be placed with him because of the unstable
relationship history between him and appellant. The order
provided that they had separated five times since their July
2015 marriage and that Javier is not CD's biological
father. Notwithstanding the court's finding that placing
CD in Javier's care was not in her best interest, DHS was
ordered to conduct a home study on Javier's home and
circulate a copy to all attorneys and the CASA.
On
February 12, DHS filed a termination petition against
appellant and Brian Elliott, who was listed as CD's
"legal father." The petition asserted that Javier
is not the presumptive legal father of CD because appellant
disclosed in her psychological evaluation that she was
married to two men at once-Brian Elliott and Javier. Brian
Elliott, whom appellant claimed she did not divorce before
she married Javier, is the father of appellant's three
older children. DHS asserted that Javier had no parental
rights to divest. The termination petition did not name
Javier as a parent, and he was not served with the petition,
although he was represented by a court-appointed attorney.
At the
April 2019 termination hearing, testimony was provided by a
DHS family-service worker, appellant, Kevin Boldra, Terry
Boldra, Javier, and CD's foster parent. The court
accepted certified copies of the orders in CD's
dependency-neglect case as well as the 2016 termination order
providing that appellant voluntarily relinquished her rights
to three other children.[4]
Chris
Hamby, a family-service worker in Washington County,
testified that he had been the caseworker since January 2019.
He testified that CD is a kind, loving, and affectionate
three-year-old and is "very adoptable." Hamby
indicated that several families were interested in adopting
CD, and DHS was working towards that end.
Hamby
testified that appellant failed to submit to regular drug
screens and that the most recent had been positive for THC.
He said that she had been unable to demonstrate an ability to
protect CD and keep her safe from harm. He described
appellant's history of starting services and then
"vanishing," and "not receiving services, not
working the case, and not complying with court orders."
Hamby testified that DHS had not seen the consistency and
stability needed for CD to return home and a return to
appellant would not be in her best interest. Hamby asserted
DHS's position that termination was the best option to
establish permanency and stability in CD's life.
When
questioned about Javier, Hamby stated that Javier had
maintained communication with DHS, and Javier always
expressed an interest in having CD placed with him. Hamby
testified that he was uncertain whether Javier had any
parental rights to CD but that DHS would like to continue to
explore placement of CD with him.
Appellant
testified that she married Brian Elliott in 2010, but they
never turned in the marriage license to the Benton County
clerk. She thought she was not legally married to
him.[5]
She married Javier in 2015 before CD was born. They turned in
the marriage license to the Washington County clerk the day
the ceremony was performed. When questioned about placement
for CD, she said she wanted CD to be placed either with the
family that adopted her half siblings, Kevin Boldra, or
another relative. She testified on cross-examination that she
had no objection to CD's being placed with Javier.
Kevin
Boldra, CD's great uncle, testified that he and his wife,
Ruth, live in Colcord, Oklahoma, and they were interested in
having CD placed with them and in adopting her. He explained
that he knew CD had been in foster care since appellant's
car accident, and he had been to hearings in CD's case
but that he did not get in touch with DHS until the day of
the termination hearing. He testified that he would now like
DHS to conduct a home study.
Javier
then testified that he considers himself a father figure to
CD and that he would like CD to be placed with him. If CD was
not placed with him, he believed that placement with Kevin
Boldra would be best. He explained that he is still married
to appellant; does not have any other children; was not born
in the United States but had lived here for fourteen years;
could not be deported; and was trying to get his resident
card.
When
asked for a recommendation, CD's attorney ad litem agreed
with DHS that termination of appellant's parental rights
was in CD's best interest. She asserted that Javier has
no parental rights, and if he did have rights, she requested
that they be terminated. The ad litem recommended that DHS
conduct a home study on Kevin Boldra and that if the study
was favorable, then it was in CD's best interest to be
placed with the Boldras because they are CD's relatives.
At the
close of the hearing, the circuit court found that DHS had
proved both statutory grounds for termination and that
termination was in CD's best interest by clear and
convincing evidence. Specifically, the court explained that
appellant had failed to maintain stability, comply with court
orders, and remedy the conditions that caused removal despite
meaningful efforts by DHS to rehabilitate her. With regard to
Javier, the court found in its oral ruling that it was in
CD's best interest for Javier's rights to be
terminated if any existed. In the written order, the court
stated that Javier "has no parental rights as to
[CD]" on the basis of its previous finding that he is
"neither the biological or legal parent of [CD]."
Appellant timely appealed the termination order. Javier has
not appealed.
II.
Standard of Review
A
circuit court's order of termination must be proved by
clear and convincing evidence. Ark. Code Ann. §
9-27-341(b)(3) (Supp. 2019); Martin v. Ark. Dep't of
Human Servs., 2017 Ark. 115, 515 S.W.3d 599. Clear and
convincing evidence is the degree of proof that will produce
in the fact-finder a firm conviction of the allegation sought
to be established. Dinkins v. Ark. Dep't of Human
Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001). On
review, this court gives due deference to the opportunity of
the circuit court to assess witness credibility and will not
reverse termination unless the lower court's decision is
clearly erroneous. Posey v. Ark. Dep't of Health and
Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). 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. Chastain v. Ark. Dep't of Human
Servs., 2019 Ark.App. 503, at 7, ___S.W.3d___, ___. In
determining whether a finding is clearly erroneous, an
appellate court gives due deference to the opportunity of the
circuit court to judge the credibility of witnesses.
Id. The appellate court is not to act as a
"super factfinder," substituting its own judgment
or second-guessing the credibility determinations of the
circuit court; we reverse only in those cases in which a
definite mistake has occurred. Id
In
order to terminate parental rights, a circuit court must find
by clear and convincing evidence that termination is in the
best interest of the juvenile, taking into consideration (1)
the likelihood that the juvenile will be adopted if the
termination petition is granted and (2) the potential harm,
specifically addressing the effect on the health and safety
of the child, caused by returning the child to the custody of
the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) &
(ii). The order terminating parental rights must also be
based on a showing by clear and convincing evidence of one or
more of the grounds for termination listed in Section
9-27-341(b)(3)(B).
III.
Discussion
On
appeal, appellant does not challenge the statutory grounds
and makes only a limited best-interest argument. She does not
challenge the circuit court's findings of adoptability or
potential harm but instead argues that the evidence failed to
demonstrate that termination was in CD's best interest
when a less restrictive alternative to termination was
available. Arkansas Code Annotated section 9-27-329(d)
provides that in initially considering the disposition
alternatives and at any subsequent hearing, the court shall
give preference to the least restrictive disposition
consistent with the best interest and welfare of the
juvenile. Appellant contends that termination was premature
when placement of CD with either Javier or Kevin and Ruth
would have permitted a less restrictive alternative for
permanency without destroying familial bonds. She relies on
our recent decision Clark v. Ark. Dep't of Human
Servs., 2019 Ark.App. 223, 575 S.W.3d 578, in support of
her argument.
DHS
contends that appellant is barred from arguing relative
placement was a "least-restrictive" option because
CD was not in the legal custody of a relative at the time of
the termination hearing. DHS distinguishes Clark and
contends that appellant lacks standing to challenge the
termination of her parental rights based on alleged
violations of Javier's parental rights.
CD's
attorney says that relative placement was not in CD's
best interest because no home study had been conducted on the
Boldras, and there is no sibling group because CD has no
legal siblings, unlike the situation in Clark.
Case
law from this court holds that a circuit court is permitted
to set termination as a goal even when a relative is
available and requests custody. This is because the Juvenile
Code lists permanency goals in order of preference,
prioritizing a plan for termination and adoption unless the
juvenile is already being cared for by a relative, the
relative has made a long-term commitment to the child, and
termination of parental rights is not in the child's best
interest. Otis v. Ark. Dep't of Human Servs.,
2018 Ark.App. 28, 538 S.W.3d 870. Our decision in
Clark did not change this. E.g., Everly
v. Ark. Dep't of Human Servs., 2019 Ark.App. 528,
___S.W.3d___(terminating mother's rights furthered the
statutory goal of permanency even when child was already in a
stable placement with paternal grandparents).
In
Clark, we reversed the termination order
acknowledging the statutory preference that a juvenile be
placed with a relative in dependency-neglect cases.
Clark, 2019 Ark.App. 223, at 14-15, 575 S.W.3d at
586-87. Additionally, we said that each
termination-of-parental-rights case is decided on a
case-by-case basis, and the circuit court's decision to
forgo relative placement as a permanency goal for the
children was clearly erroneous given the facts. Id.
The
permanency-planning goal in Clark was set as
adoption and reunification. In the present case, the circuit
court changed the goal from reunification to adoption in the
permanency-planning order. Like the maternal grandparents in
Clark, the Boldras knew CD was in foster care from
the beginning. However, unlike the grandparents in
Clark, the Boldras did not express an interest in
custody until the termination hearing. The court's
probable-cause order lists the Boldras as being present, and
the court ordered DHS to "start" an ICPC home study
for the Boldras in the adjudication order. The court report
noted that the Boldras declined the offered ICPC home study.
Further, Kevin testified that he had not seen CD since the
car accident in February 2018.
To the
extent appellant argues that the court erred by terminating
her rights on the basis of a potential placement with the
Boldras, we disagree. The relative preference outlined by the
legislature must be balanced with the individual facts of
each case. In contrast to Clark, no relatives had
been approved for placement at the time of the termination
hearing. The Boldras declined the court's initial offer
of an ICPC home study and did not seek placement until the
termination hearing. Considering the facts of this case, ...