Aric Danes v. Arkansas Department of Human Services and Minor Child

2019 Ark. App. 388

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

Opinion

Cite as 2019 Ark. App. 388 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.25 13:03:46 -05'00' Adobe Acrobat version: DIVISION III 2022.001.20169 No. CV-19-181

ARIC DANES Opinion Delivered: September 18, 2019

APPELLANT APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT V. [NO. 36JV-17-53]

HONORABLE, JUDGE KEN D. ARKANSAS DEPARTMENT OF COKER, JR. HUMAN SERVICES AND MINOR CHILD AFFIRMED; MOTION TO APPELLEES WITHDRAW GRANTED

MEREDITH B. SWITZER, Judge

Aric Danes appeals the Johnson County Circuit Court’s termination of his parental

rights to his daughter, J.W., born April 18, 2017. 1 Pursuant to Linker-Flores v. Arkansas

Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme

Court Rule 6-9(i), his counsel has filed a no-merit brief setting forth all adverse rulings from

the termination hearing and asserting there are no issues that would support a meritorious

appeal. Counsel has also filed a motion asking to be allowed to withdraw. The clerk of this

court notified Danes of his right to file pro se points. Danes has filed no pro se points. We

affirm the order terminating Danes’s parental rights and grant counsel’s motion to withdraw.

1 Katherina Waugh, J.W.’s mother, consented to the termination of her parental rights on July 17, 2018. The circuit court entered a separate order on September 24, 2018, terminating her parental rights. She is not a party to this appeal. I. Standard of Review

Termination of parental rights is a two-step process requiring a determination that

the parent is unfit and that termination is in the best interest of the child. Rylie v. Ark. Dep’t

of Human Servs., 2018 Ark. App. 366, 554 S.W.3d 275. The first step requires proof of one

or more statutory grounds for termination; the second step, the best-interest analysis,

includes consideration of the likelihood that the juvenile will be adopted, and the potential

harm caused by returning custody of the child to the parent. Id. Each step requires proof

by clear and convincing evidence, which is the degree of proof that will produce in the

factfinder a firm conviction regarding the allegation sought to be established. Id.

Appellate review for parental termination cases is de novo, and our inquiry on appeal

is whether the circuit court’s finding that the disputed fact was proved by clear and

convincing evidence is clearly erroneous. Griffin v. Ark. Dep’t of Human Servs., 2017 Ark.

App. 635. 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. In resolving the clearly erroneous question, the reviewing court

defers to the circuit court because of its superior opportunity to observe the parties and to

judge the credibility of witnesses. Id.

II. Facts

On July 20, 2017, the Arkansas Department of Human Services (DHS) filed a

petition for emergency custody and dependency-neglect with respect to J.W. The affidavit

attached to the petition averred that J.W. was removed from the custody of her mother,

Katherina Waugh, on July 17, 2017. Waugh and J.W. had been living with Danes, who

2 was identified as Waugh’s boyfriend and J.W.’s putative father. There was no food in the

home, there was no refrigerator, and it was unknown if the home had electricity. J.W. was

removed from Waugh’s custody due to Waugh’s mental instability and inability to care for

J.W. An ex parte order of emergency custody was entered the same day. A probable-cause

order was entered on July 26, and J.W. was adjudicated dependent-neglected in an order

entered August 22. The adjudication order directed Danes to submit to random drug

screens; attend and complete parenting classes; obtain and maintain stable and appropriate

housing; obtain and maintain stable and gainful employment; attend counseling as

recommended; submit to a psychological examination and follow any recommendations;

and submit to a paternity test.

In a review order entered on November 28, the circuit court found Danes had

complied with the case plan (Waugh had not); Danes was determined to be J.W.’s legal

father; and the goal of the case remained reunification. The circuit court entered additional

review orders on January 23 and April 17, 2018; the goal of the case remained reunification,

but there was no finding as to whether Danes was in compliance with the case plan in either

order.

A permanency-planning hearing was held on July 17, 2018, the same day Waugh

filed her consent to terminate her parental rights to J.W. The circuit court entered the

permanency-planning order on July 31, changing the goal of the case from reunification to

adoption.

DHS filed a petition to terminate Danes’s parental rights on August 17, 2018, alleging

four bases: (1) J.W. had been adjudicated dependent-neglected and had continued out of

3 Danes’s custody for a period of twelve months, and despite a meaningful effort by DHS to

correct the conditions causing removal, the conditions had not been remedied; (2) J.W. had

lived outside Dane’s home for a period of twelve months, and Danes had willfully failed to

provide significant material support in accordance with his means or to maintain meaningful

contact with J.W.; (3) Danes had abandoned J.W.; and (4) other factors arose subsequent to

the filing of the original petition for dependency-neglect that demonstrate placement of

J.W. in Danes’s custody is contrary to her health, safety, and welfare, and that, despite the

offer of appropriate family services, Danes had manifested the incapacity or indifference to

remedy the subsequent issues or factors or rehabilitate the circumstances that prevented the

placement of J.W. in his custody. In a termination hearing held on November 20, the

circuit court terminated Danes’s parental rights, finding it was in J.W.’s best interest and that

DHS had proved the twelve-months-failure-to-remedy and subsequent-factors grounds.

At the termination hearing, Danes testified he had moved several times during the

case. At one residence, not only were there child-safety issues, there were also issues

regarding people moving in and out of his home and his failure to inform DHS of these

people. Danes stated that he currently had a two-bedroom apartment where he lived with

his fiancée that was appropriate for J.W. Danes was unemployed at the time of the

termination hearing due to injuries suffered in a scooter accident, but he testified that he

was supposed to begin work at Subway the Saturday after the termination hearing, even

though he was not yet cleared to return to work due to his injuries. Danes admitted he had

“pointed out” due to excess absences at Tyson after only eight months of employment, quit

OK Foods after approximately four months due to excess absences, worked for both

4 Simmons and Sonic concurrently for approximately two weeks before he realized he could

not work two jobs and left Simmons, and worked at Sonic for a total of one month before

he was injured in his scooter accident.

As to visitation with J.W., Danes acknowledged he had not attended all his scheduled

visits with J.W., especially since his accident. He admitted that as of the November 2017

review hearing, he had attended 5 of 16 scheduled visits; as of April 2018, had attended 10

of 35 visits; as of July 2018, he had attended 10 of 50 visits (with no visits made between

March 2018 and July 5, 2018); and of the 68 total visits he had been offered, Danes agreed

that if DHS reported he had attended only 19, that sounded “about right” to him. Excuses

Danes gave for missing visitation included the following: he got visitation dates “mixed up”;

he was looking for a job; and he was trying to find parenting classes to attend because the

case worker told him he was not allowed to complete the parenting classes he had begun.

He also said he had not visited due to his accident but admitted he had not called DHS to

inform anyone, and he had not asked if visits could be scheduled around his doctor

appointments. He admitted his visits with J.W. had been difficult because she would scream

and cry at times, but he stated there were times J.W. smiled during visitation. Danes

admitted he did not presently have anything in his home for J.W.; although he had a crib

in storage, he estimated it would take him about a month to get everything together he

needed.

Danes testified he was dismissed from his first parenting class due to his behavior and

his second parenting class due to failure to attend. On his third attempt, he said he quit

doing the written work after his case worker told him he was not going to graduate and

5 receive the parenting certificate. He did obtain his parenting certificate in July 2018. Danes

admitted his driver’s license was suspended, and he had active warrants in Franklin County

and Pope County, but he was unaware he also had an active warrant in Sebastian County.

Danes testified that his disability income is $725 a month.

Amy Vaughn, J.W.’s caseworker from July 2017 to August 2018, testified Danes

moved “quite a bit” during the time she worked on the case. On the night J.W. was

removed, there was nothing in the home for the baby, there were roaches, and there was

no food in the house. In Danes’s next residence there were child-safety hazards, and several

times there were people in the home Vaughn did not know who would not identify

themselves when asked, including a man who claimed to be a homeless friend of Danes. In

Vaughn’s opinion, none of Danes’s residences were appropriate for a child, and they did not

contain any items necessary to meet a child’s needs. She testified parenting classes were a

continual issue with Danes. According to Vaughn, Danes had been discharged from his first

parenting classes for being rude and verbally aggressive with the director when he was not

allowed to rush through the parenting materials simply to complete the process; he had been

discharged from his second round of parenting classes due to poor hygiene and failure to

attend classes; and during his third attempt, he would show up unclean and be rude and

disruptive, again attempting to rush through the materials. When told that he would have

to take the parenting classes again, he became upset and did not complete the course.

Vaughn acknowledged that at the last review hearing Danes had presented a certificate

indicating he had completed parenting classes in July 2018, but she testified Danes had never

provided her with that proof.

6 Vaughn described Danes’s visits with J.W. as “traumatic” for the child. J.W. would

scream uncontrollably and was inconsolable until someone retrieved her from the visitation

room to calm her down. Visitation was attempted in different environments, such as the

hallway or an office, but the results were the same—J.W. would not calm down until

someone removed her from Danes. Vaughn said J.W. would go to complete strangers

without crying and would even allow complete strangers to console her and calm her down.

Visits were moved to McDonald’s at one point, and while they were better there due to all

the distractions, J.W. still always wanted a caseworker or one of her foster parents to be in

her line of sight. Vaughn testified there was no bond between Danes and J.W., and he

would not accept any redirection as to parenting techniques; his mindset was that he was

going to do it his way.

Ashley Elam, the caseworker who took over J.W.’s case after Vaughn’s departure,

testified that even after the goal of the case changed to adoption, DHS continued to provide

services to Danes. She testified that in Danes’s current residence, there was limited furniture

for the adults, and there were no baby items for J.W. Elam said nothing had changed with

visitation—J.W. still preferred to go to a complete stranger rather than to Danes. Elam

testified that during visitation, J.W. would throw fits until she almost became physically ill,

crying so much she would begin to cough. Elam stated that while the last visit was better,

she attributed it to J.W.’s being surrounded by new toys rather than wanting to spend time

with Danes. Elam also testified that J.W.’s foster parents were interested in adopting her.

In terminating Danes’s parental rights, the circuit court stated that what “stuck out”

was J.W.’s intensely fearful reaction to her father during visitation, even when visitation

7 locations were changed. The circuit court that held it was in J.W.’s best interest for Danes’s

parental rights to be terminated, finding there would be significant potential harm to J.W.’s

health and safety due to J.W.’s physical reaction to Danes and the fact Danes was unable to

demonstrate he had acquired any parenting skills, despite multiple efforts to do so, including

being able to console J.W. when she was intensely distraught. The circuit court noted

Danes had nothing at his home for J.W., despite the case having been open for sixteen

months, and it did not see Danes being able to adequately care for J.W. within a reasonable

period of time. The circuit court was further concerned with Danes’s lack of visitation,

noting he had attended only 19 of 68 visits, and at one time went three months without

visiting. The circuit court further noted the likelihood of adoption by the foster parents.

Danes’s parental rights were terminated on both the twelve-months-failure-to-remedy and

subsequent-factors grounds.

III. Discussion

Counsel first addresses the sufficiency of the evidence to terminate Dane’s parental

rights. While the circuit court terminated his parental rights on two grounds, there need

be proof of only one ground to support the circuit court’s decision to terminate. Allison v.

Ark. Dep’t of Human Servs., 2017 Ark. App. 424. Danes’s counsel discusses the subsequent-

factors ground for the purposes of his brief. This ground requires proof that subsequent

issues arose after the original petition was filed that demonstrate it is contrary to the juvenile’s

health, safety, or welfare to place the juvenile with the parent; DHS must offer appropriate

family services; and there must be evidence the parent is indifferent or lacks the capacity to

remedy the subsequent factors or rehabilitate the parent’s circumstances that prevents

8 placement of the juvenile with that parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a)

(Supp. 2017). The trial court’s finding that this ground was proved by clear and convincing

evidence is not clearly erroneous.

The evidence clearly demonstrated Danes failed to exercise his visitation with J.W.

on a consistent basis, attending only 19 of 68 visits provided by DHS. When he did exercise

his visitation, J.W. was exceptionally fearful of him, to the point of making herself almost

physically ill. J.W. would go to complete strangers over Danes, and she always had to have

either a caseworker or one of her foster parents in her line of sight when Danes was with

her. There was no bond between Danes and J.W., the visits were traumatic for J.W., and

Danes was not capable of calming J.W. Danes also did not complete his parenting classes in

a timely fashion, taking a year to do so and being dismissed from the classes on his first three

attempts. Testimony revealed Danes would not take direction from caseworkers during

visitation, and he was determined to parent his own way. At the termination hearing,

Danes’s only source of income was his disability check, although he was about to begin a

new job at Subway. He had outstanding warrants in multiple counties. Danes had nothing

for J.W. in his current residence, and he testified it would take him another month to gather

the things he needed to bring J.W. home. Failure to comply with a case plan and instability,

as demonstrated herein, are sufficient to support the subsequent-factors ground. Smith v.

Ark. Dep’t of Human Servs., 2018 Ark. App. 380, 555 S.W.3d 896.

There was also proof that DHS provided appropriate services. DHS continued to

offer visitation, even though Danes exercised his visitation sporadically. DHS also offered

9 Danes multiple attempts at parenting classes. DHS continued to offer these services even

after the goal of the case had been changed to adoption.

The circuit court also found it was in J.W.’s best interest to terminate Danes’s

parental rights. A best-interest finding must be based on the circuit court’s consideration of

at least two factors: (1) the likelihood that the child will be adopted if parental rights are

terminated, and (2) the potential harm caused by continuing contact with the parent. Baxter

v. Ark. Dep’t of Human Servs., 2017 Ark. App. 508. It is the overall evidence, not proof of

each factor, that must demonstrate termination is in the child’s best interest. Id.

The unrebutted evidence from Ashley Elam indicated J.W. is adoptable and that her

foster parents are interested in adopting her. The caseworker’s testimony is sufficient to

support the likelihood-of-adoptability finding. Arnold v. Ark. Dep’t of Human Servs., 2019

Ark. App. 300, 578 S.W.3d 329.

The potential-harm analysis is to be conducted in broad terms—the circuit court

must consider the harm to the child’s health and safety that might result from continued

contact with the parent; there is no requirement to find actual harm would result or to

identify the potential harm. Barnes v. Ark. Dep’t of Human Servs., 2017 Ark. App. 525. The

evidence revealed that when J.W. had visits with Danes, she would scream uncontrollably

to the point of making herself almost physically ill, and she would have to be removed from

the situation in order to calm down. Testimony indicated that there was no bond between

Danes and J.W., and in fact, the visits were traumatic for J.W. Placing J.W. with Danes

would certainly pose potential harm to her mental health. See Norris v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 571, 567 S.W.3d 861.

10 Counsel also points out that the termination decision was a denial of Danes’s request

for further time and could possibly constitute an adverse ruling. However, this case had

been open for sixteen months, and a child’s need for permanency and stability may override

a request for additional time to improve a parent’s circumstances. Hamman v. Ark. Dep’t of

Human Servs., 2014 Ark. App. 295, 435 S.W.3d 495.

There was one adverse ruling abstracted but not discussed by counsel—the refusal of

Danes’s request for a last visit with J.W. However, even if an adverse ruling is omitted from

a no-merit brief in a termination case, the termination may still be affirmed if the ruling

clearly would not constitute a meritorious ground for appeal. Beaty v. Ark. Dep’t of Human

Servs., 2017 Ark. App. 621, 534 S.W.3d 190. The refusal of a last visit had no bearing on

the merits of the termination of Danes’s parental rights.

Counsel concludes that the record clearly and convincingly supports the decision of

the circuit court to terminate Danes’s parental rights, and any argument challenging the

statutory grounds or challenging the best-interest finding would be wholly frivolous. We

agree the appeal is without merit. We affirm the termination of Danes’s parental rights and

grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

VIRDEN and VAUGHT, JJ., agree.

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

One brief only.