Crystal Smallwood v. Arkansas Department of Human Services

2019 Ark. App. 598

• Court: Court of Appeals of Arkansas
• Decided: December 11, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 598 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry DIVISION IV Date: 2022.08.09 14:00:35 No. CV-19-677 -05'00' Adobe Acrobat version: Opinion Delivered: December 11, 2019 2022.001.20169 CRYSTAL SMALLWOOD APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04JV-18-117]

ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE THOMAS E. SMITH, CHILD JUDGE APPELLEES AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Crystal Smallwood appeals a Benton County Circuit Court order

terminating her parental right to her son, AM. 1 She challenges only the sufficiency of the

evidence to support the grounds necessary for termination. Because the evidence was

sufficient to support the grounds found by the trial court, we affirm.

On February 13, 2018, Smallwood gave birth to AM while incarcerated at

Wrightsville Prison. The Arkansas Department of Human Services (DHS) exercised a

seventy-two-hour hold on the child because Smallwood did not have any family to act as a

caregiver for the child.

DHS filed a petition alleging dependency-neglect as a result of Smallwood’s

incarceration and the lack of a legal or appropriate caregiver or custodian for the child. The

1 The parental rights of Joshua Smallwood, the legal father of AM, were also terminated. He did not appeal the termination order and is not a party to this appeal. petition also noted that Smallwood had some mental health problems rendering her unable

to care for the baby. The trial court adjudicated dependency-neglect in April 2018 based on

Smallwood’s incarceration and set the goal of the case as reunification with a concurrent

goal of adoption.

Smallwood was released from prison in June 2018. The court continued to monitor

the compliance of both Smallwood and DHS at review hearings held in July, August, and

November 2018. At each hearing, the court found that Smallwood had only partially

complied with the case plan and the court’s orders and that DHS had made reasonable efforts

to provide services and achieve reunification. After each hearing, the court continued

custody of AM with DHS. Throughout this hearing process, Smallwood was represented

by counsel. It does not appear in our record that counsel ever objected to the trial court’s

finding of reasonable efforts by DHS.

In the process of conducting these review hearings, the court became aware of the

magnitude of Smallwood’s mental health issues. The court also noted that Smallwood had

lost custody of five other children, which it believed was cause for concern. Additionally,

Smallwood was experiencing instability in housing and had been homeless on several

occasions during the pending proceedings. The court indicated that it wanted to know from

a psychiatrist if Smallwood had the capacity to care for AM and ordered Smallwood undergo

a psychological evaluation.

The court conducted a permanency-planning hearing in December 2018. By this

time, the court had been informed that Smallwood suffered from substance-abuse issues in

addition to the issues of her mental health. The court ordered a substance-abuse evaluation

and treatment, if recommended; random drug testing; and parenting classes. The court

2 found that AM could not be returned to Smallwood’s custody at that time nor could it

approve a plan to return AM to her custody within a reasonable time given her lack of

housing. The court then changed the goal to adoption with a concurrent goal of

guardianship. 2

In January 2019, DHS filed a petition to terminate Smallwood’s parental rights,

alleging several grounds for termination: twelve-month failure to remedy; subsequent other

factors; aggravated circumstances—little likelihood of successful reunification; and

involuntary termination of another child. 3 The court conducted a hearing on the petition

and entered an order terminating Smallwood’s parental rights to AM. The court found that

AM was adoptable and that there was potential harm in returning AM to Smallwood’s

custody. As such, it was in AM’s best interest that Smallwood’s parental rights be

terminated. The court further found that DHS had presented sufficient proof on several

statutory grounds, including twelve-month failure to remedy; subsequent other factors, and

aggravated circumstances—little likelihood of successful reunification. The court did not

make a finding as to the involuntary-termination ground alleged in the petition.

Smallwood appeals the termination decision, challenging the sufficiency of the

evidence to support the statutory grounds for termination found by the court. Although the

trial court found three grounds for termination and Smallwood challenges all three grounds,

2 The maternal grandmother was granted a limited intervention for purposes of placement. 3 As to the last ground, DHS alleged that four other children had been adopted by a stepparent without Smallwood’s permission or consent.

3 only one ground is necessary to support the termination. Brown v. Ark. Dep’t of Human

Servs., 2017 Ark. App. 303, 521 S.W.3d 183.

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

Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must

exist, in addition to a finding that is in the child’s best interest to terminate parental rights;

these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp.

2017); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear

and convincing evidence is that degree of proof that will produce in the fact-finder a firm

conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633,

839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the

disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.

Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). 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. Yarborough v. Ark.

Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).

Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) sets forth the

subsequent-other-factors ground for termination: that other factors or issues arose

subsequent to the filing of the original petition for dependency-neglect that demonstrate

that placement of the children in the custody of the parent is contrary to their health, safety,

or welfare and that, despite the offer of appropriate family services, the parent has manifested

the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the

parent’s circumstances that prevent the placement of the children in the custody of the

parent. See also Arnold v. Ark. Dep’t of Human Servs., 2019 Ark. App. 300, 578 S.W.3d 329.

4 Having reviewed the record before us, we conclude that the trial court did not clearly err

in finding that DHS proved the subsequent-other-factors ground.

As to the subsequent-other-factors ground, Smallwood argues that DHS failed to

present any evidence that she was either indifferent or lacked the capacity to remedy the

subsequent factors identified by the court or that it had offered appropriate services to address

those factors. Instead, she contends that she made progress once she had obtained services

on her own thereby demonstrating that she could benefit from services. Furthermore, she

contends that the failure of DHS to timely offer inpatient treatment to address her mental

health and substance-abuse issues completely undermined the court’s finding that timely and

appropriate services would not result in reunification.

The trial court found that after the filing of the original petition for dependency-

neglect, “subsequent other factors” arose—namely, mental health and substance-abuse

issues. We agree. Subsequent to the filing of the original petition, Dr. George Deroeck

performed a psychological evaluation of Smallwood. He opined that Smallwood was

unstable and in need of a psychiatric assessment and stabilization of medications. In his

opinion, she was also at a significant risk of relapse on controlled substances if she did not

participate in mental health treatment and become stable on her medications. Lastly, he

recommended that any contact Smallwood had with AM be supervised until she received

an appropriate assessment and treatment. Even Smallwood’s trial counsel admitted that

Smallwood had factors that arose subsequent to the filing of the petition. In a responsive

pleading, trial counsel stated to the court that since Smallwood’s release from prison, the

parties discovered that Smallwood has serious mental health issues, that a psychological

5 evaluation found Smallwood psychologically unready to parent the child, and that her

medication would need to be stabilized.

The court also found that DHS had offered appropriate family services to

Smallwood—including parenting classes; mental health and substance-abuse assessments;

and offers of residential substance-abuse treatment. We agree. Sonya Harden-Ricks, a DHS

caseworker, testified to her referral to Dr. Deroeck for the psychological evaluation and the

referral for the mental health and substance-abuse assessment that was conducted in January

2019. Shannon Saindon, another DHS caseworker, testified as to the services that were

offered to Smallwood, including mental health and substance-abuse referrals; parenting

classes; and regular weekly visitation.

Lastly, the court found that despite the offer of appropriate family services,

Smallwood refused to participate in those services designed to remedy her mental health

and substance-abuse issues. We agree. Again, we note the testimony of Harden-Ricks. She

testified that Smallwood received a recommendation to participate in residential substance-

abuse treatment, but Smallwood refused residential treatment. She notified Smallwood of

the recommendation on several occasions and even had her sign an acknowledgment of the

recommendation; yet Smallwood refused to attend. She further testified that Smallwood

tested positive for controlled substances on more than one occasion. She noted that

Smallwood had been dropped from parenting classes twice due to nonattendance, and she

remained homeless, living at the Salvation Army at the time of the hearing.

Here, the record clearly reflects that Smallwood was diagnosed with significant

mental health and substance-abuse issues after the filing of the original petition. There was

evidence presented that she denied her substance-abuse issues and refused to take advantage

6 of the referral for the recommended inpatient treatment. She tested positive for controlled

substances on more than one occasion. There was no evidence that her mental health issues

had sufficiently stabilized or that her issues were being adequately managed medically. She

was dropped from parenting classes for failure to attend. Except for the time period in

which she was incarcerated, she was homeless throughout these proceedings. Only at the

eleventh hour did she develop potential housing and employment. DHS offered her services

to try to remedy her issues and reunite her with her child, but Smallwood simply failed to

avail herself of those services. A parent’s lack of compliance with the case plan and court

orders—including testing positive for drugs—supports termination of parental rights under

the “subsequent factors” ground. Furnish v. Ark. Dep’t of Human Servs., 2017 Ark. App. 511,

529 S.W.3d 684. As for her argument that DHS failed to provide housing and employment

services, the court made repeated reasonable-efforts findings in its review and permanency-

planning orders, and Smallwood never appealed those findings. And as for her challenge to

the timeliness of the substance-abuse-treatment referral, such argument is irrelevant because

she refused to avail herself of those services once they were offered.

In light of the foregoing, we affirm.

Affirmed.

HIXSON and BROWN, JJ., agree.

Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Office of Chief Counsel, for appellee.

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