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Dominguez v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

January 15, 2020




          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. VIRDEN, J., agrees. HARRISON, J., concurs.


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         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

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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

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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

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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

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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, 7, 588 S.W.3d 419, ___. 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

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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. ...

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