Bethany Cooper v. Arkansas Department of Human Services and Minor Children

2019 Ark. App. 425

• Court: Court of Appeals of Arkansas
• Decided: October 2, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 425 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.07.28 14:53:54 DIVISION II -05'00' No. CV-19-442 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 2, 2019 BETHANY COOPER APPELLANT APPEAL FROM THE CLEBURNE V. COUNTY CIRCUIT COURT [NO. 12JV-17-10] ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN HONORABLE LEE WISDOM APPELLEES HARROD, JUDGE AFFIRMED

RAYMOND R. ABRAMSON, Judge

Bethany Cooper appeals the Cleburne County Circuit Court order terminating her

parental rights to her children, A.C. (1/16/04), S.C. (11/16/05), and K.C. (6/19/07). On

appeal, Bethany argues that the circuit court erred by finding that it was in the children’s

best interest to terminate her parental rights. We affirm.

On May 3, 2016, the Arkansas Department of Human Services (DHS) filed a petition

for an ex parte emergency order for protection of A.C., S.C., and K.C., and it listed Bethany

as their noncustodial mother. In the affidavit attached to the petition, DHS stated that the

children were living with their father, Johnny Cooper, and their stepmother, Jessica Cooper,

and that Johnny and Jessica had domestic-violence and alcohol-consumption issues. DHS

proposed a protection plan, which Johnny and Jessica had agreed to. The court entered an

ex parte order for protection on May 6. On June 20, the court entered a probable-cause order. The court noted that Bethany was not present and that she had previously lost custody

of the children.

On July 20, the court adjudicated the children dependent-neglected because of

inadequate supervision and parental unfitness due to the issues between Johnny and Jessica.

Bethany was not present at the hearing.

On October 26, the court held a review hearing, and Bethany appeared. The court

found that Bethany had housing and employment but had not maintained regular contact

with DHS and had not visited the children regularly. The court noted that Bethany had

tested positive for methamphetamine and MDMA that day, but it granted her supervised

visitation.

On November 22, DHS filed a petition for emergency custody and dependency-

neglect. DHS alleged that Johnny had been arrested for driving while intoxicated and

domestic battery. The court entered an ex parte order for emergency custody on November

23, and on December 6, the court entered an order finding probable cause for the

emergency custody.

On March 8, 2017, the court held a review hearing. The court noted that Bethany

did not appear for the hearing but found that the parties had agreed not to hold a second

adjudication hearing. The court found that Bethany had been substantially compliant with

the case plan. The court noted that DHS indicated it was close to a trial home placement

with Bethany.

The court held a review hearing on June 9. The court found that Bethany was

substantially compliant and had completed inpatient drug treatment and attended mental-

2 health counseling. On September 20, the court held a review hearing and found that

Bethany had employment and housing. However, the court noted that she had failed a hair-

follicle screening in June and that she had been recommended for additional inpatient drug

treatment. The court appointed counsel to represent Bethany.

On November 17, the court held a permanency-planning hearing. The court

changed the goal of the case to adoption and found that Bethany had not been compliant

with the case plan. Specifically, the court noted that after failing the hair-follicle screening,

Bethany had tested positive on urine drug screenings. The court further noted she had been

arrested but had been released on October 30.

On January 23, 2018, DHS filed a petition to terminate Bethany’s parental rights.

DHS alleged the failure-to-remedy, 1 subsequent-factors, 2 and aggravated-circumstances

grounds. 3 The court held a termination hearing on July 30 and October 29, 2018.

Bethany testified that she had been married to Johnny from August 13, 2004, through

2012 or 2013; she could not recall the exact date of their divorce. She noted that the

Independence County Circuit Court had awarded Johnny custody of the children in a

dependency-neglect proceeding in August 2014.

Bethany testified that she had a job at Flash Market and that she had been employed

there since February or March. She noted that she lived in a trailer on land owned by her

grandmother. She stated that she had been arrested in February and April 2018 for failure

1 Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(b) (Supp. 2017). 2 Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). 3 Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a).

3 to appear and failure to pay fines and that she currently had cases open in Izard and Cleburne

Counties.

Bethany admitted that she previously had a problem with methamphetamine, but

she had been clean for 232 days. She stated that she went to treatment and that she regularly

attends faith-based alcoholics-anonymous and narcotics-anonymous meetings. She

acknowledged that she had tested positive for tramadol throughout the case and that she did

not always have a prescription for the drug. Bethany further acknowledged that she had

most recently tested positive for methamphetamine in December 2017.

Miranda Moore, the family-service worker, testified that S.C. and K.C. are placed

together but that A.C. is in a different placement. Specifically, A.C. is in a fictive-kin

provisional foster home with his football coach, and S.C. and K.C. are in an area foster

home. Moore stated that all the children are adoptable.

Moore testified that Bethany had housing and employment but that her house is

inappropriate; she noted that the children’s room had a strong smell of cat urine. She

recognized that DHS services could help Bethany remedy the issues with the home, but she

stated that Bethany’s drug problem posed a risk of harm to the children. She referenced

Bethany’s positive drug screenings for methamphetamine and tramadol throughout the case

and noted that the children had seen a glass pipe during a visitation. She explained that

Bethany had unsupervised visits during the spring of 2017, but the visits stopped after she

failed the hair-follicle screening in June. She further explained that Bethany tested positive

for methamphetamine again in December 2017 but that she entered inpatient drug

treatment. Moore said she believed Bethany uses drugs when she becomes overwhelmed.

4 During Moore’s testimony, the court recessed and did not resume the hearing until

October 29, 2018. On that day, Moore continued her testimony and explained that K.C.

and S.C. had moved to another placement in the last month but that A.C. remained in the

same home. She stated that A.C.’s placement is a potential long-term placement and that

K.C. and S.C. could remain in their new placement as long as necessary.

As to Bethany, Moore stated that during the court’s recess, she tested positive for

methamphetamine and tramadol on October 1. Bethany also testified at the second hearing

and admitted using methamphetamine since the last hearing. She denied using tramadol.

At the close of the evidence, the attorney ad litem informed the court that the

children did not want their parents’ rights terminated. However, the ad litem recommended

termination because the children need stability.

On February 21, 2019, the court entered an order terminating Bethany’s parental

rights. 4 The court found that all the grounds pled in the petition supported termination.

The court further found that Bethany lacked the capacity to remain permanently drug free

and that the children would be at risk of harm if returned to her custody. The court also

found that the children are adoptable. This appeal followed.

We review termination-of-parental-rights cases de novo but will not reverse the

circuit court’s ruling unless its findings are clearly erroneous. Dade v. Ark. Dep’t of Human

Servs., 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although

there is evidence to support it, the reviewing court on the entire evidence is left with a

4 The court also terminated Johnny’s parental rights. However, he is not a party to this appeal.

5 definite and firm conviction that a mistake has been made. Id. In determining whether a

finding is clearly erroneous, we have noted that in matters involving the welfare of young

children, we will give great weight to the circuit court’s personal observations. Jackson v.

Ark. Dep’t of Human Servs., 2016 Ark. App. 440, 503 S.W.3d 122.

The termination of parental rights is an extreme remedy and in derogation of the

natural rights of the parents. Fox v. Ark. Dep’t of Human Servs., 2014 Ark. App. 666, 448

S.W.3d 735. As a result, a heavy burden is placed on the party seeking to terminate the

relationship. Id. The termination of parental rights is a two-step process that requires the

circuit court to find that the parent is unfit and that termination is in the best interest of the

child. T.J. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Smith v.

Ark. Dep’t of Human Servs., 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires

proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-

341(b)(3)(B). The second step requires consideration of whether the termination of parental

rights is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A).

On appeal, Bethany does not challenge the proof of the statutory grounds supporting

termination. Instead, she argues that the circuit court erred in finding that termination of

her parental rights was in the best interest of the children. She concedes that Moore’s

testimony satisfies the adoptability prong but argues that the court did not consider the

children’s sibling bond when determining their best interest. She further argues that there

was insufficient evidence that the children would face a risk of harm if returned to her

custody. She points out that she never harmed the children. She acknowledges her drug use

6 during the case but asserts that relapse is a common occurrence for people struggling to

achieve sobriety.

The best-interest finding must be based on a consideration of two factors: (1) the

likelihood that if parental rights are terminated the juvenile will be adopted and (2)

the potential harm caused by returning the child to the custody of the parent. Ark. Code

Ann. § 9-27-341(b)(3)(A). A circuit court is not required to find that actual harm would

result or to affirmatively identify a potential harm. Id. Potential harm must be viewed in a

forward-looking manner and in broad terms, including the harm the child suffers from the

lack of stability of a permanent home. Vail v. Ark. Dep’t of Human Servs., 2016 Ark. App.

150, 486 S.W.3d 229. A parent’s past behavior is often a good indicator of future

behavior. Stephens v. Ark. Dep’t of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160. It

is the best-interest finding that must be supported by clear and convincing evidence after

consideration of the foregoing factors. Hughes v. Ark. Dep’t of Human Servs., 2017 Ark. App.

554, 530 S.W.3d 908.

In this case, we hold that the circuit court’s best-interest finding was not clearly

erroneous. The evidence showed that Bethany was unstable and had a drug problem.

Bethany had been arrested on multiple occasions during the case, and despite receiving

inpatient drug treatment, she continued to test positive for methamphetamine and tramadol

intermittently throughout the case. Most significantly, she tested positive for

methamphetamine in the interim between the two-day termination hearing. We have held

that continued drug use demonstrates potential harm sufficient to support a best-interest

finding. Middleton v. Ark. Dep’t of Human Servs., 2019 Ark. App. 97, 572 S.W.3d 410.

7 Moreover, this is the second dependency-neglect case in which the children have been

removed from Bethany’s custody. As to Bethany’s argument concerning the court’s

consideration of the children’s sibling bond, the evidence showed that the children had

already been placed in separate homes, that A.C.’s placement is a potential long-term

placement, and that S.C. and K.C. could remain in their placement as long as necessary.

The circuit court weighed this evidence in favor of termination, and we cannot say the

circuit court erred in finding that termination was in the children’s best interest.

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

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

Andrew Firth, Office of Chief Counsel, for appellee.

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

children.