Drake v. Arkansas Department of Human Services

2014 Ark. App. 475, 442 S.W.3d 5, 2014 Ark. App. LEXIS 621
CourtCourt of Appeals of Arkansas
DecidedSeptember 17, 2014
DocketCV-14-306
StatusPublished
Cited by5 cases

This text of 2014 Ark. App. 475 (Drake v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drake v. Arkansas Department of Human Services, 2014 Ark. App. 475, 442 S.W.3d 5, 2014 Ark. App. LEXIS 621 (Ark. Ct. App. 2014).

Opinion

PHILLIP T. WHITEAKER, Judge.

hVirgil Drake appeals from a Sebastian County Circuit Court order terminating his parental rights to his son, C.D. Because this finding was supported by clear and convincing evidence, we affirm.

We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). To terminate parental rights, at least one statutory ground must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Repl. 2009); see M.T. v. Ark. Dep’t of Human Servs., 58 Ark.App. 302, 952 S.W.2d 177 (1997). Drake concedes that the Department sufficiently established a statutory ground for termination — the prior involuntary termination of his parental rights to other children — and that the child was adoptable. His only challenge to the termination is the court’s determination that potential harm would befall the child if custody was returned to |ahim. Thus, the issue for our consideration is whether the court’s finding that it was in the child’s best interest to terminate parental rights was proved by clear and convincing evidence. M.T., supra.

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). As a result, a review of the facts is crucial to our determination.

Tammie and Virgil Drake met in 2000 and subsequently married. Three children were born to them during the course of their marriage — B.D., K.D., and C.D. 1 This case began in April 2012, when C.D. was taken into emergency custody by the State of Oklahoma shortly after his birth. C.D. was removed after hospital staff advised an Oklahoma child-welfare worker that Tammie had not been providing care for the child, was leaving the baby with nursing staff, and had expressed a fear of being alone with the newborn. At the time of C.D.’s birth, the Arkansas Department of Human Services (DHS) had already initiated dependency-neglect proceedings for K.D. and B.D. In June 2012, the State of Oklahoma found C.D. to be “deprived” under Oklahoma law after the parents failed to appear, and C.D. became a ward of the court. Because of the open, pending case on B.D. and K.D. in |.<¡Arkansas, C.D.’s case was transferred by the Oklahoma district court to Sebastian County Circuit Court in July 2012.

Upon transfer to Arkansas, the circuit court had two open dependency-neglect cases: one involving B.D. and K.D., and one involving C.D. In both cases, the circuit court addressed the issues of Tammie Drake’s mental health and substance abuse, as well as Virgil’s failure to recognize the risk of danger that Tammie presented to the children. In October 2012, the circuit court entered an order terminating the Drakes’ parental rights to B.D. and K.D. 2 In its order, the court noted that Tammie Drake suffered from mental-health and substance-abuse issues; that she failed to remain on her prescribed medication; that she had been provided services to address those issues; and that, despite the services offered, she had been either unwilling or unable to address and correct those issues. As to Virgil, the court noted that Virgil Drake did not recognize that Tammie presented a risk' of harm to the juveniles if left in her care, despite being provided appropriate services to educate him. The court further found that Virgil was either unwilling or unable to provide for their safety due to his lack of awareness regarding Tammie’s mental-health and substance-abuse problems as evidenced by his leaving the children with Tammie as the primary caregiver while he worked 16 hours a day.

In October 2013, a year after the termination of appellant’s rights to B.D. and K.D., DHS filed a petition for termination of the Drakes’ parental rights to C.D., alleging that |4Tammie presented a risk of danger to the child due to her mental-health and substance-abuse issues and that Virgil was either unwilling or unable to provide for the child’s safety. After a hearing on the petition in December 2013, the trial court entered an order terminating the Drakes’ parental rights. 3 The December 2013 order terminating the Drakes’ parental rights to G.D. mirrored the October 2012 termination order with respect to C.D.’s siblings in several aspects. Like the October 2012 order, the December 2013 order focused, in large part, on Tammie’s ongoing mental-health issues and her failure to adequately follow through on treatment. ■ The court stressed that Tammie’s “extensive, long-standing, and ongoing mental health issues” made Tammie a danger to juveniles placed in her care or supervision and that her failure to comply with her treatment plan in this case paralleled her prior and repeated failure to do so in previous cases, which had resulted in termination of her parental rights as to those juveniles. And, like the October 2012 order, the December 2013 order reiterated Virgil’s inability, or unwillingness to acknowledge the danger Tammie posed to the children.

After outlining these facts, the trial court found the requisite statutory ground for termination (prior involuntary termination of a sibling) had been proved and, that it would be in C.D.’s best interest to terminate their parental rights. The court found that C.D. was adoptable and that C.D. would be subject to-a great risk of potential harm if returned to the custody of either parent. The court found that Tammie Drake continued to suffer from lfiextensive, long-standing, and ongoing mental-health issues that make her a danger to C.D. if placed in her care or supervision; that she did not accept her role in what had happened to her children and instead blames others; that Virgil Drake did not recognize that Tammie presented a danger to C.D.; that he was unwilling to provide sufficient protection for juveniles placed in Tammie’s care; and that C.D.' was so young that he could not protect himself from the danger that Tammie presented. Accordingly it was in C.D.’s best interest to terminate the Drakes’ parental rights.

On appeal, VirgiLargues that it was error for the trial court to terminate his parental rights because it was not in C.D.’s best interest to do so. More specifically, Virgil argues that there had been no evidence of a single occasion where Tammie’s current mental-health issues posed a danger to C.D. or that Virgil had improperly entrusted C.D. to Tammie’s care. Thus, the trial court erred in determining that there was potential harm in returning C.D. to his care. We disagree.

In considering the potential harm caused by returning the child to a parent, the court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App.

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Bluebook (online)
2014 Ark. App. 475, 442 S.W.3d 5, 2014 Ark. App. LEXIS 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-arkansas-department-of-human-services-arkctapp-2014.