Elainea Belt and Jonathon Thomas v. Arkansas Department of Human Services and Minor Children

2020 Ark. App. 315, 603 S.W.3d 203

• Court: Court of Appeals of Arkansas
• Decided: May 20, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 315 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-06-23 11:06:08 DIVISION II Foxit PhantomPDF Version: 9.7.5 No. CV-20-67

Opinion Delivered May 20, 2020 ELAINEA BELT AND JONATHON THOMAS APPEAL FROM THE SEBASTIAN APPELLANTS COUNTY CIRCUIT COURT, FORT SMITH DISTRICT V. [NO. 66FJV-03-499]

ARKANSAS DEPARTMENT OF HONORABLE LEIGH ZUERKER, HUMAN SERVICES AND MINOR JUDGE CHILDREN APPELLEES AFFIRMED

LARRY D. VAUGHT, Judge

Elainea Belt and Jonathon Thomas both appeal the Sebastian County Circuit Court’s

order terminating their parental rights to their minor children. We affirm.

On April 27, 2017, the Arkansas Department of Human Services (DHS) opened a

protective-services case involving Thomas, Belt, and their children, H.R.,1 K.R.,2 B.B., J.B.,

J.T.(1), J.T.(2), and J.T.(3)3 due to Thomas’s and Belt’s drug use and environmental neglect.

1H.R. turned eighteen years old during the pendency of the case, and the circuit court

issued an order on September 12, 2019, dismissing him from the case. H.R. is not a party to this appeal.

2DHS’s petition to terminate parental rights and the court’s termination order did not

seek termination as to K.R., and she is not a party to this appeal. The circuit court set an “alternative planned permanent living arrangement” or “APPLA” as the case goal for K.R. due to her age and circumstances.

3Thomas is the father of J.T.(1), J.T.(2), and J.T.(3). Belt is the mother of all the

children. As part of this protective-services case, DHS provided services and requested that Thomas

and Belt submit to random drug screens, complete a drug-and-alcohol assessment and follow

its recommendations, complete parenting classes, participate in intensive family services

(“IFS”), resolve all legal issues, create a payment plan with HUD, and take the children to

their doctors’ appointments and counseling. On May 15, 2017, both parents tested positive

for THC, and DHS referred Thomas and Belt for a drug-and-alcohol assessment; however,

they both failed to attend their appointments. Additionally, both parents had warrants out for

their arrest for failure to pay fines, and neither completed parenting classes. K.R. then accused

Belt and Thomas of domestic violence; Belt failed to provide K.R. with her medication; and

the family home was environmentally inappropriate on multiple occasions during home visits.

As result, on August 1, DHS exercised emergency custody of all six children. Thomas was

arrested that same day for failure to pay fines.

DHS then filed a “Petition for Emergency Custody and Dependency-Neglect” of the

children, and on the same day, the circuit court entered an order granting DHS’s petition. On

August 10, the circuit court held a probable-cause hearing wherein, by stipulation of the

parties, it found probable cause for the emergency order to continue. Additionally, the circuit

court found that DHS had made reasonable efforts by offering services to the family to

prevent removal.

On September 28, 2017, the circuit court held an adjudication hearing. It adjudicated

the children dependent-neglected based on parental unfitness and neglect. Additionally, the

circuit court set a goal of reunification and ordered Thomas and Belt to complete parenting

classes; submit to a psychological evaluation; submit to a drug-and-alcohol assessment and

follow its recommendations; visit the children; submit to random drug screens and hair-follicle 2 tests; and obtain and maintain stable housing, employment, income, and transportation. On

January 4, 2018, the circuit court held a review hearing at which it continued the goal of

reunification. At this hearing, the circuit court found that all the children, except for H.R.,

were placed together at the “Young Children’s Home” in Fort Smith, Arkansas, and that DHS

had made reasonable efforts toward the goal of reunification. The circuit court also found that

the parents lacked transportation; visited the children; completed their drug-and-alcohol

assessments; were enrolled in drug treatment; and had housing, although it was unclear if the

housing was appropriate. Additionally, the circuit court ordered the parents to complete

parenting classes.

On April 17, 2018, Belt gave birth to another child, K.T. Thomas is the presumed

father of K.T. because he was married to Belt at the time of K.T.’s birth. On April 26, the

circuit court held another review hearing wherein it continued the goal of reunification and

added a concurrent goal of adoption for B.B., J.B., J.T.(1), J.T.(2), and J.T.(3). At this hearing,

the circuit court found that these five children remained in their previous placement and again

found that DHS had made reasonable efforts. Additionally, the circuit court approved a plan

for the children to transition into the parents’ home after the school year with the help of IFS

services.

On June 27, DHS exercised emergency custody of K.T. due to the following: Belt’s

providing alcohol to a minor, K.R.; the parents’ failure to appropriately supervise the children

during their unsupervised weekend visitation; the parents’ positive hair-follicle tests; and the

parents’ failure to follow visitation rules. As a result, on July 2, DHS filed a petition for

emergency custody and dependency-neglect of K.T., and the circuit court entered an order

granting this petition the same day. On July 5, the circuit court held a probable-cause hearing 3 for K.T. It found that probable cause existed for the emergency order to remain in place and

found that DHS had made reasonable efforts to prevent removal.

On August 6, the circuit court held an adjudication hearing for K.T., and on the basis

of the parties’ stipulation, it adjudicated K.T. dependent-neglected based on parental unfitness.

Specifically, the circuit court found that the parents continued to blame K.R. for the issues in

this case; they continued to test positive on drug screens and hair-follicle tests; and they made

poor parenting decisions concerning K.T.’s siblings. Additionally, the circuit court ordered

Belt and Thomas to maintain stable housing, employment, income, and transportation; and it

ordered Thomas to complete drug treatment, visit the children, and submit to random drug

screens, hair-follicle tests, and alcohol swabs. Further, the circuit court ordered that if the

parents decided to remain together as a couple, they must complete marriage counseling.

The circuit court also held a permanency-planning hearing for the six youngest

children. At this hearing, the circuit court found that DHS had made reasonable efforts and,

considering Belt’s and Thomas’s “significant measurable progress,” it continued the

concurrent goals of reunification and adoption for B.B., J.B., J.T.(1), J.T.(2), J.T.(3), and K.T.

Specifically, the circuit court found that only Belt—and not Thomas—had housing, income,

and transportation, and the court noted that Thomas would begin drug treatment the

following day.

On October 18, 2018, the circuit court held a fifteen-month-review hearing wherein it

again found that DHS had made reasonable efforts, and it continued the goal of reunification

for the six youngest children. Additionally, the circuit court approved DHS’s plan to begin

unsupervised weekend visitation for the six youngest children for one month. Further, the

4 court noted that Thomas had an active warrant for his arrest for unpaid fines, and Thomas

was arrested at the conclusion of the hearing.

On December 13, the circuit court held a review hearing for the six youngest children

and continued the goal of reunification. At this hearing, the circuit court found that DHS had

made reasonable efforts and that the six youngest children remained placed together in the

same foster home. Additionally, the circuit court provided DHS with the discretion to increase

visitation and begin a trial home placement. Sometime thereafter in December, DHS placed

B.B. and J.B. on a trial home placement with Belt and Thomas, and it transitioned J.T.(1) and

J.T.(2) into the trial home placement sometime in February 2019.

However, the trial home placement for these four children ended in approximately

April 2019 due to domestic violence and Belt’s arrest for the same unpaid fines that she had

at the beginning of the case. On May 30, 2019, the circuit court held a permanency-planning

hearing wherein it continued the concurrent goals of adoption and reunification for the six

youngest children and found that DHS had made reasonable efforts. At this hearing, the circuit

court found that Belt had “somewhat complied” with the case in that she had income,

submitted to drug screens, and visited the children. The court also found that Belt needed to

obtain housing, complete domestic-violence classes, and resolve her criminal issues. As for

Thomas, the circuit court found that he failed to attend his recent drug-and-alcohol

assessment, tested both positive and negative on drug screens, and did not have housing or

income. Additionally, the circuit court ordered Thomas’s visits to be supervised by DHS, and

it ordered Thomas to complete domestic-violence classes.

On July 15, 2019, DHS filed a petition to terminate Belt’s and Thomas’s parental rights.

On August 23, September 10, and October 1, 2019, the circuit court held termination-of- 5 parental-rights hearings at which it took testimony from Belt, Thomas, a DHS employee, the

children’s counselor, and the children’s foster father. The court terminated Belt’s and

Thomas’s parental rights on the following grounds: “failure-to-remedy,” Ark. Code Ann. § 9-

27-341(b)(3)(B)(i)(a) (Supp. 2019); “subsequent-factors,” Ark. Code Ann. § 9-27-

341(b)(3)(B)(vii); and “aggravated circumstances,” Ark. Code Ann. § 9-27-

341(b)(3)(B)(ix)(a)(3)(A)–(B)(i).

The circuit court found that it was in the children’s best interest to terminate Belt’s and

Thomas’s parental rights because the children are adoptable and because the potential harm

they would suffer if returned to their parents’ custody. Key findings from the court’s

termination order included its conclusion that Belt had lacked housing for much of the case

and still lacked appropriate housing and stable transportation at the time of the hearing. It

noted that, although Belt had visited the children regularly, completed parenting classes, and

made progress working the case plan, she was also repeatedly arrested and jailed throughout

the case for failure to pay the same fines she owed when the children were first taken into

care. Belt had made only one sixty-dollar payment during the case, and the court noted that

the plan she presented at the termination hearing for resolving these legal issues had already

proven to be unsuccessful over the preceding two years. The court also found that Thomas

had lacked stable housing, income, and transportation throughout the case, had not visited the

children since mid-July, and had tested both positive and negative on drug screens throughout

the case. Thomas testified that he had last used drugs approximately two months before the

termination hearing began. Finally, the court noted that at the time of initial removal, both

parents had active warrants for their arrest, which later contributed to the decision to end the

trial placement of the children in their custody and were still active at the time of the 6 termination hearing. The court further found that there was little likelihood that continued

services and additional time would result in successful reunification. The court found that the

children were adoptable. It noted that J.B. was adoptable despite his current behavioral and

mental-health issues, finding that those were “due to the trauma experienced while in his

parents’ home.” The court found that returning the children to their parents’ custody would

subject them to a substantial risk of harm because the children need stability that the parents

are unable to provide. The court noted that “Thomas is unable to even take care of himself at

this time,” and it cited the testimony of the children’s counselor, Sarah Morton, and found

that the children need structure and continued consistent treatment, which the court did not

believe that the parents could provide. The court terminated both parents’ parental rights, and

this appeal followed. Both parents have filed separate briefs seeking reversal of the circuit

court’s termination order.

Termination-of-parental-rights cases are reviewed de novo. Pine v. Ark. Dep’t of Human

Servs., 2010 Ark. App. 781, at 9, 379 S.W.3d 703, 708. Grounds for termination of parental

rights must be proved by clear and convincing evidence, which is that degree of proof that

will produce in the finder of fact a firm conviction of the allegation sought to be established.

Id., 379 S.W.3d at 708. The appellate inquiry is whether the circuit court’s finding that the

disputed fact was proved by clear and convincing evidence is clearly erroneous. Id., 379 S.W.3d

at 708. 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., 379 S.W.3d at 708. In resolving the clearly erroneous question, we give

due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id., 379

S.W.3d at 708. Termination of parental rights is an extreme remedy and in derogation of a 7 parent’s natural rights; however, parental rights will not be enforced to the detriment or

destruction of the health and well-being of the child. Id., 379 S.W.3d at 708. As with all issues

addressing child placement, the appellate court affords heightened deference to the circuit

court’s superior position to observe the parties personally and weigh credibility. Dinkins v. Ark.

Dep’t of Human Servs., 344 Ark. 207, 215, 40 S.W.3d 286, 292–93 (2001).

In order to terminate parental rights, a circuit court must find by clear and convincing

evidence that termination is in the best interest of the child, taking into consideration (1) the

likelihood that the child will be adopted if the termination petition is granted; and (2) the

potential harm, specifically addressing the effect on the health and safety of the child, caused

by returning the child to the custody of the parent. Pine, 2010 Ark. App. 781, at 9–10, 379

S.W.3d at 708–09. Additionally, the circuit court must also find by clear and convincing

evidence that one or more statutory grounds for termination exists. Id. at 10, 379 S.W.3d at

709.

Neither Belt nor Thomas challenge the court’s finding that DHS proved grounds for

termination. Their only arguments for reversal relate to best interest. When deciding best

interest, the circuit court must look at all the circumstances, including the potential harm of

returning the children to their parents’ custody, specifically the effect on the children’s health

and safety, and it must consider the likelihood that the children will be adopted. Ark. Code

Ann. § 9-27-341(b)(3). Belt challenges the court’s best-interest findings on both issues, while

Thomas challenges only the court’s finding of potential harm.

In considering the potential-harm factor, the circuit court is not required to find that

actual harm would result or to identify specific potential harm. Gonzalez v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 425, at 12, 555 S.W.3d 915, 921. Additionally, “a parent’s failure to 8 comply with court orders is sufficient evidence of potential harm, and . . . a failed trial home

placement may be considered evidence of potential harm.” Id. at 12–13, 555 S.W.3d at 921–

22. Further, potential harm includes a child’s lack of stability in a permanent home; a court

may consider a parent’s past behavior as a predictor of future behavior; and the same evidence

that supports the subsequent factors ground may also support potential harm. Id. at 12, 555

S.W.3d at 921.

Here, both parents failed to fully comply with the court’s orders. Moreover, during the

case, both parents were repeatedly arrested, and both failed to pay their fines, leaving them

subject to future arrest. A trial home placement ended due to Thomas’s domestic violence and

Belt’s arrested for failure to pay the same fines that were outstanding at the start of this case.

Finally, while Belt argues that the children “got worse” in DHS’s care, there was also evidence

that their anxiety and behavioral problems manifested after visitation with Belt and Thomas

and were the result of trauma the children experienced in their parents’ home.

Belt challenges the court’s risk-of-harm finding, arguing that the children were more at

risk in foster care than in her care, while Thomas makes almost the opposite argument,

claiming that there was no need to terminate his parental rights because the children had a

stable and safe foster placement that could allow for more time to try to achieve reunification.

Both arguments miss the mark. The juvenile code requires the court to evaluate the potential

harm the juveniles would face if returned to the parent. Here, despite receiving two years of

services, neither Belt nor Thomas was in a position to care for the children. Neither parent

had stable housing or sufficient income, and both demonstrated a cascading wave of instability

throughout the case (drug use, arrests, unstable housing, insufficient income, unreliable

transportation, a failed trial placement, and domestic violence). 9 Finally, with regard to risk of harm, Thomas argues that at a minimum, this court

should remand the case for the circuit court to address whether he was referred for housing

services as well as other “critical services.” This argument has no merit because services are

not a required element in determining best interest, and Thomas has not challenged the court’s

finding that grounds existed for termination. Alternatively, even if DHS were under some

obligation to provide Thomas with specific services related to the court’s best-interest finding,

the court repeatedly found that DHS had made reasonable efforts, and Thomas did not contest

these findings. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)–(ii); see Phillips v. Ark. Dep’t of Human

Servs., 2018 Ark. App. 565, at 11, 567 S.W.3d 502, 509. We find no error in the circuit court’s

risk-of-harm findings.

Belt also challenges the court’s adoptability finding. She argues that DHS’s evidence

regarding adoptability was “weak” and “equivocal.” She points out that while one of the foster

parents testified that he and his wife would be interested in adopting the children together, he

said they would have to wait and see how J.B.’s therapy progresses before deciding whether

they would adopt J.B. Moreover, she questions the weight given to the DHS caseworker’s

testimony that there was no reason the children could not be adopted since they are “all cute

and fun loving kids.” Belt argues that this does not adequately address the true likelihood that

they will be adopted. Again, this argument misses the mark. For adoptability, “[t]he Juvenile

Code does not require ‘magic words’ or a ‘specific quantum’ of evidence.” E.g., Atwood v. Ark.

Dep’t of Human Servs., 2019 Ark. App. 448, at 6–7, 588 S.W.3d 48, 52. Additionally, “[a]

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

finding.” E.g., Strickland v. Ark. Dep’t of Human Servs., 2018 Ark. App. 608, at 10, 567 S.W.3d

870, 876. Here, the court clearly heard and considered adoptability, and the evidence 10 demonstrated that the children are adoptable. It showed that the children (except for J.B.)

were together in a foster home with foster parents who would like to adopt them, and that

even J.B., who has significant emotional and behavioral issues, is being considered for

adoption by a specific foster family. We therefore find no error in the court’s adoptability

finding. As such, we affirm the court’s order terminating both Belt’s and Thomas’s parental

rights to all six children.

Affirmed.

KLAPPENBACH and WHITEAKER, JJ., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for separate appellant

Elainea Belt.

Leah Lanford, Arkansas Commission for Parent Counsel, for separate appellant

Jonathon Thomas.

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

Kimberly Boling Bibb, attorney ad litem for minor children.