Amber Boomhower and Mark Hosier v. Arkansas Department of Human Services and Minor Children

2019 Ark. App. 397

• Court: Court of Appeals of Arkansas
• Decided: September 18, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 397 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.07.25 12:50:07 DIVISION IV -05'00' No. CV-19-126 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: September 18, 2019

AMBER BOOMHOWER AND MARK HOSIER APPEAL FROM THE GREENE APPELLANTS COUNTY CIRCUIT COURT [NO. 28JV-17-120] V. HONORABLE BARBARA HALSEY, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES AND MINOR CHILDREN AFFIRMED APPELLEES

MIKE MURPHY, Judge

Appellants Amber Boomhower and Mark Hosier appeal from the November 14,

2018 order of the Greene County Circuit Court terminating their parental rights to their

children. Both Boomhower and Hosier challenge the circuit court’s findings on statutory

grounds for termination and best interest. We find no error and affirm.

I. Procedural Facts and History

Boomhower is the mother of WH (born 11/13/2006), LJ (born 8/10/2008), and

MH (born 1/23/2015). Hosier is the legal father of MH and legal custodian of WH. LJ’s

legal father is not a party to this appeal. Boomhower and Hosier have a history of

involvement with the Arkansas Department of Human Services (Department) dating back

to April 9, 2013. In 2014, WH and MH spent three months in foster care, and the

Department provided the family with various services including cleaning and teaching the parents how to clean. In September 2016, there was a true finding of environmental neglect.

When the Department filed its petition for emergency custody, a protective-services case

had been open since November 16, 2016, due to environmental neglect.

On April 7, 2017, the Department exercised an emergency hold on the juveniles and

filed a petition for emergency custody and dependency-neglect five days later. In the

attached affidavit, the family-service worker averred that since the November 2016

protective-services case was opened, the home remained cluttered, the children continued

to miss school, and the children were not assessed for mental-health services. The circuit

court entered an ex parte order of emergency custody on April 12. On May 4, the circuit

court held a probable-cause hearing, and it found that probable cause existed for the children

to remain in the Department’s custody.

On June 5, 2017, the circuit court held an adjudication hearing, and the parties

stipulated to a finding the children were dependent-neglected due to environmental neglect.

The circuit court established a goal of reunification. Boomhower and Hosier were ordered

to comply with the standard welfare orders of the Department and to follow the

psychological-evaluation recommendations.

At a subsequent review hearing, the court found that both Boomhower and Hosier

had partially complied with the case plan, and the goal of the case continue to be

reunification. At a permanency-planning hearing held on March 16, 2018, the court

changed the goal of the case to adoption with a concurrent goal of permanent relative

placement. The court did not make a finding regarding Boomhower’s or Hosier’s

compliance. The court conducted a fifteen-month review hearing on June 25, and set

2 concurrent goals of reunification and termination of parental rights/adoption. Again, the

court made no compliance finding as to the parents.

On August 31, 2018, the Department filed a petition to terminate the parental rights

of both parents on the basis of the following grounds: (1) twelve month failure to remedy

(Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a)) (Supp. 2017), (2) subsequent factors (Ark. Code

Ann. § 9-27-341(b)(3)(B)(vii)(a)), and (3) aggravated circumstances—little likelihood of

successful reunification despite a reasonable offer of services (Ark. Code Ann. § 9-27-

341(b)(3)(B)(ix)(a)(3)(A)). The petition also alleged that termination was in the children’s

best interest.

At the termination hearing on October 1, 2018, Stephanie Meeker, the program

assistant assigned to the case through the Division of Children and Family Services, testified

about her most recent visit to the home. Meeker explained that she was not immediately

allowed into the home because Boomhower told her Hosier had stuff out that was not safe

to be around. Boomhower eventually let Meeker into the home and told her it was some

of Hosier’s swords. When asked about the clutter that day, Meeker described it as “some

trash underneath the bed, there was stuff kind of sitting everywhere.” She went on to explain

that “they have a lot of stuff and not a whole lot of places to put it.” The children’s rooms

had an odor to them, and she noticed specks on the bathroom floor and opined that they

were possibly feces. Meeker noted two other spots in the home with feces on the floor. She

also mentioned that the floor was wet from Hosier having just mopped.

Meeker then described her other visits in the home. She explained that when

Boomhower and Hosier moved into their new apartment from their mobile home, they

3 had a couple of unsupervised visits. However, those visits stopped when the home was very

dirty one day: there were dog feces all over the bathroom and dining room floors, and the

home had a really strong odor of feces and urine. Meeker testified that she provided them

with cleaning supplies, personal-hygiene products, and even fixed the underpinning on their

mobile home so the dogs could go outside instead of urinating in the home. Meeker testified

that whenever she arrives for a visit, she must wait anywhere from two minutes to ten

minutes before she is allowed inside, and the floor is usually wet from having been mopped.

Meeker acknowledged that when people have pets, it is reasonable to expect that sometimes

they are going to chew up toys or other things. She also testified that Boomhower and

Hosier lacked stable housing—they had lived in three homes since the case opened—and

lacked stable income. Lastly, Meeker said she felt nauseated every time she interreacted with

the family between transporting them and going to their house and that she had vomited

on multiple occasions.

Sarah Speight, the family service worker since December 18, 2017, testified that the

home was not clean on any of her visits. Speight’s testimony mirrored Meeker’s. When

asked about the clutter, Speight added that on one visit, Boomhower and Hosier had a

rabbit on the loose and there were dirty dishes with bugs on them. Speight could not say

they were getting better at cleaning. She aided them in making a detailed schedule to help

them stay on track with cleaning. Like Meeker, Speight also discussed their income and

housing instability. She believed the children were adoptable and she described BH’s current

need to be in a therapeutic home, but she did not think his issues were something that

would bar his adoption. Speight explained that the family moved in June to an apartment

4 from their mobile home, and they were able to have an unsupervised visit in June, but by

August 3, the home was no longer appropriate. She explained there were not any July visits

because the parents did not confirm with the Department that they would be there. Unlike

Meeker, Speight never got sick. Lastly, she opined it would be harmful to return the children

to Boomhower and Hosier because despite having eighteen months to remedy their

situation, they had not, and the children’s needs would continue to not be met. She admitted

the parents had made a little progress, but that things could easily go back to where they

were, if not worse.

Boomhower testified that at the most recent home visit, she could not immediately

let Meeker in because “Mark had his gun case open. He was cleaning out his sword. He

was going to finish and put it away when he got back from going downtown. He had some

stuff to do down there with his father.” When asked why she could not invite Meeker in

to explain that, she said, “We have before and it counted against us.” Boomhower testified

that the dogs would get urinary-tract infections, but she would take them to the veterinarian,

and whenever they would urinate on the floor she would clean it up right away. She also

denied that the home had a foul odor. She denied making Meeker wait and said if she did

ever have to wait it was because Boomhower was in the bathroom. Boomhower testified

that during the pendency of the case they were able to make it work financially because

there had not been a time where she or her husband went hungry or failed to pay rent; they

never had their utilities cut off; and they always paid their veterinary bill. She said the attic

crawl space is located in the kids’ room and that must be where the foul odor was coming

from. Boomhower said they are down to two dogs from twenty-two dogs, a rabbit, and a

5 cat, and that she has gotten rid of a bunch of stuff to cut down on the clutter. She testified

that she did not think she and her husband could have done any better on maintaining their

recent cleanliness. Lastly, she introduced pictures of how the house had been and what it

looked like two days before the hearing.

Hosier testified that the Department would sometimes arrive around 8:00 a.m.,

which was very early for him, so he asked them to wait outside on occasion while he put a

shirt on. He said that there would be dog feces and urine on the ground because the dogs

could not hold it through the night. He estimated that he would have to clean up dog

messes in the morning once or twice a week. He said Boomhower was not currently

working but that he makes enough money to support his home so that she did not have to

work. He was not aware of an odor in the home.

Following the termination hearing, the circuit court entered an order terminating

both Boomhower’s and Hosier’s parental rights on the basis of all three grounds alleged in

the Department’s petition and on the basis of the court’s best-interest finding, including its

consideration of the adoptability of the children and the potential harm if they were returned

to the parents’ care. Boomhower and Hosier both appeal the circuit court’s order

terminating their parental rights.

We review termination-of-parental-rights cases de novo. Heath v. Ark. Dep’t of

Human Servs., 2019 Ark. App. 255, at 5–6, 576 S.W.3d 86, 88–89. We review for clear

error, and 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. A court may order termination of parental rights if it finds clear

6 and convincing evidence to support one or more statutory grounds listed in the Juvenile

Code, Ark. Code Ann. § 9-27-341(b)(3)(B), and that termination is in the best interest of

the child, taking into consideration the likelihood of adoption and the potential harm to the

health and safety of the child that would be caused by returning him or her to the custody

of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).

II. Statutory Grounds

Proof of only one statutory ground is sufficient to terminate parental rights. Corley v.

Ark. Dep’t of Human Servs., 2018 Ark. App. 397, at 4–5, 556 S.W.3d 538, 541–42. The

failure-to-remedy ground, codified at Arkansas Code Annotated section 9-27-

341(b)(3)(B)(i)(a) & (b), provides that termination is appropriate when a juvenile has (1)

been adjudicated by the court to be dependent-neglected and (2) continued to be out of

the custody of the parent or the home of the noncustodial parent for twelve months and,

(3) despite a meaningful effort by the Department to rehabilitate the parent and correct the

conditions that either caused removal from the custodial parent or prohibited placement

with the noncustodial parent, the conditions have not been remedied.

At the end of the termination hearing, the circuit court found that it had no

confidence that more time or more services would make a difference in remedying the

environmental neglect that opened up the case in the first place. The court specifically found

Boomhower not credible. Regarding the pictures Boomhower introduced, it stated, “The

Court had a question prior to seeing those pictures about whether there was an incapacity,

an ability, an incapacity [sic]. At least today, I know they know how it should look.” The

court stated,

7 And the fact that these kids are not at risk of picking up dog feces and eating it does not mean that they’re not at risk for living in a home where dog feces and urine are present and control the smell of the premises so much to the point that the smell perhaps goes with the parents when they leave the home. Children don’t have to live in that. Children ought not to have to live in that.

On appeal, Boomhower and Hosier argue that sufficient evidence does not support

the circuit court’s finding that they failed to remedy the conditions that caused removal.

They both direct us to testimony that favors them and essentially ask us to reweigh the

evidence in their favor, which we will not do because credibility determinations are for the

circuit court to make, not this court. Arnold v. Ark. Dep’t of Human Servs., 2019 Ark. App.

300, at 9–10, 578 S.W.3d 329, 335.

The condition that caused removal of the children was environmental neglect. At

the time of removal, the home was described as “cluttered with trash, dog feces, animal

urine, and dirty clothes.” At the time of the termination hearing, the home was still being

described as cluttered, and Meeker testified that as recently as two weeks before the

termination hearing she noted dog feces during her visit. While the parents testified that

they had taken great strides to eliminate clutter and had even bought new furniture since

the last home inspection, this court has repeatedly held that the children’s “need for

permanency and stability will override [a parent’s] eleventh-hour efforts.” Gonzalez v. Ark.

Dep’t of Human Servs., 2018 Ark. App. 425, at 11, 555 S.W.3d 915, 921.

This case was open for a total of eighteen months, and that does not include the

Department’s involvement with the family before the emergency hold was taken on the

children. During the entirety of the case, Boomhower and Hosier never progressed to a

point where they could have a trial placement. While issues like dirty dishes or feces may

8 not be individually dangerous, the entire environment taken together is unhealthy for

children. Considering all the evidence, the circuit court did not clearly err.

Boomhower additionally argues that the Department failed to prove that it engaged

in a meaningful effort to rehabilitate the family from the time of the review hearing in

March. Boomhower asserts that the Department offered basic services, but it did not engage

in a meaningful effort to rehabilitate the family as required by statute. We disagree and think

there is sufficient evidence to support a meaningful-efforts finding. Meeker and Speight

both testified about giving the parents cleaning and personal-hygiene supplies, providing

transportation, and remedying issues with the parents’ mobile home so the dogs could make

an easier exit to use the bathroom. Speight also testified to working with Boomhower and

Hosier on a cleaning schedule and offering to help clean. Despite these efforts, the parents

never got better at cleaning per Speight’s testimony. Notably, Boomhower fails to indicate

what services could have prompted her to maintain a clean environment. See Martin v. Ark.

Dep’t of Human Servs., 2017 Ark. 115, 515 S.W.3d 599 (affirming where appellant did not

indicate which particular services the Department could have offered him that would have

prevented him from choosing his children’s abuser over his children).

Because only one statutory ground must be proved to support termination of parental

rights, we need not address the other statutory grounds found by the circuit court. Ark.

Code Ann. § 9-27-341(b)(3)(B).

III. Best Interest

In making a “best-interest” determination, the circuit court is required to consider

two factors: (1) the likelihood that the child will be adopted and (2) the potential harm to

9 the child if custody is returned to a parent. Miller v. Ark. Dep’t of Humans Servs., 2016 Ark.

App. 239, 492 S.W.3d 113.

Boomhower challenges the circuit court’s adoptability finding. While the likelihood

of adoption must be considered by the circuit court, that factor is not required to be

established by clear and convincing evidence. Stanley v. Ark. Dep’t of Human Servs., 2016

Ark. App. 581, at 6–7, 507 S.W.3d 544, 549. The circuit court “must simply consider the

likelihood that the children will be adopted—that factor need not, however, be established

by clear and convincing evidence.” Id. Here, Meeker testified that the children were

adoptable. A caseworker’s testimony that a child is adoptable is sufficient to support an

adoptability finding. Id.

Regarding the potential-harm factor, both Boomhower and Hosier dispute the

court’s findings. In assessing this factor, the circuit court is not required to find that actual

harm would ensue if the child were returned to the parent or to affirmatively identify a

potential harm. James v. Ark. Dep’t of Human Servs., 2018 Ark. App. 445, at 15, 562 S.W.3d

218, 226. The potential-harm analysis is to be conducted in broad terms. Id. Past actions of

a parent over a meaningful period of time are good indicators of what the future may hold.

Id.

The evidence before the circuit court established that Boomhower and Hosier,

despite eighteen months of services from the Department, were never able to keep their

home clean on a consistent basis. While maintaining a clean house may not seem like much,

it is the significant issue in this case because the parents’ environmental neglect was the

primary risk to the children’s health, safety, and welfare, which caused the Department to

10 get involved. The overall neglect of the home throughout much of the case is a logical

predictor of likely potential harm to the children should they be returned to Boomhower’s

and Hosier’s care.

Accordingly, we cannot say that the circuit court clearly erred in terminating

Boomhower’s and Hosier’s parental rights.

Affirmed.

GRUBER, C.J., and HARRISON, J., agree.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Amber

Boomhower.

Katalina Wyninger, for appellant Mark Hosier.

Andrew Firth, Office of Chief Counsel, for appellee.

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

children.