Emily Simmons v. Arkansas Department of Human Services and Minor Child

2021 Ark. App. 233, 638 S.W.3d 286

• Court: Court of Appeals of Arkansas
• Decided: May 12, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 233 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION I integrity of this document No. CV-21-34 2023.06.27 13:54:57 -05'00' 2023.001.20174 Opinion Delivered: May 12, 2021 EMILY SIMMONS APPELLANT APPEAL FROM THE GARLAND V. COUNTY CIRCUIT COURT [NO. 26JV-19-58]

ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR HONORABLE LYNN WILLIAMS, CHILD JUDGE APPELLEES AFFIRMED

RITA W. GRUBER, Judge

Appellant Emily Simmons appeals an order of the Garland County Circuit Court

terminating her parental rights to BD (DOB 05/27/16). On appeal, Simmons challenges

only the circuit court’s best-interest determination. We affirm.

On February 14, 2019, the Arkansas Department of Human Services (DHS) took

emergency custody of BD after he was reported to be unsupervised a half mile from his

home. On February 19, DHS filed a petition for dependency-neglect, alleging that Simmons

continues to leave her home and BD in conditions that could be hazardous to his health

and safety. The affidavit in support of the petition indicated that BD was dirty, he had head

lice, and his diaper was “extremely soiled and heavy” when he was found. Simmons was

located after a twenty-five-minute search of the neighborhood. According to the affidavit,

Simmons admitted using methamphetamine and THC and appeared to be under the influence when she was located. She indicated that BD had “gotten out” of the house

before, and DHS had been involved previously for that issue. The affidavit provided that

DHS has a history with the family, including two hotline calls for maltreatment in February

and June 2018 and an unsubstantiated finding of inadequate supervision in June 2018, where

it was noted that DHS had conducted home assessments, assisted with furniture and referrals

for food, clothing, and alarms on the doors. A seventy-two-hour hold was placed on BD,

and an ex parte order for emergency custody was granted on February 19.

The circuit court entered an order on February 28, finding probable cause that the

emergency conditions that necessitated removal of BD from Simmons’s custody continued

such that continuation of custody in DHS was necessary. The order noted that Simmons

“waived” probable cause. 1 In a March 29 order, the circuit court adjudicated BD

dependent-neglected based on neglect and parental unfitness. The circuit court found that

BD suffered from neglect due to his being left alone at an inappropriate age and creating a

dangerous situation that that put him at risk for harm. Specifically, BD was found to be

alone and unsupervised outdoors about a half mile from his home and very dirty and with

head lice. Simmons admitted methamphetamine and THC use. The circuit court ordered

BD to remain in the custody of DHS because Simmons was unfit, it was in the best interest

of BD, and it was necessary for the protection of his health and safety. The goal of the case

was reunification with a concurrent goal of “permanent guardianship/permanent custodial

placement/adoption.”

1 We note that the proper terminology pursuant to Arkansas Code Annotated section 9-27-315 (Repl. 2020) is that a defendant may “stipulate” that probable cause exists.

2 In addition, DHS was given discretion to arrange appropriate visitation. Simmons

was ordered to follow court orders and the case plan; view The Clock is Ticking; cooperate

and stay in monthly contact with the caseworker and any appointed CASA volunteer;

demonstrate the ability to properly care for BD and provide for his health, safety, and

welfare; remain clean and sober; submit to random drug screens; submit to a drug-and-

alcohol assessment and follow all recommendations; complete parenting classes and provide

proof to the caseworker; submit to individual counseling; submit to a psychological

evaluation and follow all recommendations; obtain and maintain stable employment for a

period of six months and provide proof to the caseworker; obtain and maintain stable

housing for a period of six months and provide proof of residency to the caseworker; and

notify the caseworker forty-eight hours in advance of need for transportation assistance. A

review hearing was set for June 26.

Following the review hearing, the circuit court entered an order on June 28 finding

that BD shall remain in the custody of DHS because his return to Simmons was contrary to

his best interest. The order provided that the safety concerns that prevented trial placement

or return of custody to Simmons included her use of illegal substances and inability to

properly supervise BD. Reunification remained the goal of the case with a concurrent plan

of “legal adoption/legal guardianship/permanent custody.” The circuit court found that

DHS had complied with the case plan and orders and had provided the following services

to achieve the goal of reunification: foster care, medical and dental care, counseling,

parenting classes, drug-and-alcohol assessment, drug-and-alcohol treatment, random drug

testing, visitation, psychological evaluation, and case management. The circuit court found

3 DHS had made reasonable efforts to provide family services and finalize a permanency plan

for BD. In addition, the circuit court found that Simmons had partially complied with the

case plan and court orders, made some progress toward alleviating or mitigating the causes

of the out-of-home placement; and demonstrated some progress toward the goal of the case

plan. The court further found that Simmons had benefited from some of the services to

remedy the issues that prevent a safe return of BD to her. However, the order noted that

Simmons tested positive for amphetamines and methamphetamine on June 17, 2019, and

the court was waiting on lab confirmation on the positive drug screen. She was ordered to

follow the court orders and the case plan, including that she demonstrate the ability and

stability to provide for the health, safety, and welfare of BD; address her addiction issue; and

remain clean and sober.

The September 27 review order provided that the goal of the case remained

reunification with the concurrent plan of “legal adoption/legal guardianship/permanent

custody.” The circuit court found that DHS had complied with the case plan but found that

that Simmons had not complied. The order states that during the review period, Simmons

had not complied with the case plan or court orders; had not made progress toward

alleviating or mitigating the causes of the out-of-home placement; had not demonstrated

progress toward the goal of the case plan; and had not benefited from the services offered

to remedy the issues that prevent a safe return of BD to her. The order indicated that

Simmons had not had contact with either BD or the department since July 2, 2019. She

was ordered to follow the case plan and court orders.

4 A permanency-planning order was entered January 31, 2020, changing the goal of

the case to adoption with DHS filing a petition for termination. The court found that DHS

had complied with the case plan and had made reasonable efforts to provide services and

finalize a permanency plan for BD but found that Simmons had not complied with the case

plan or court orders. The order provided that Simmons had not completed any of the

services; had not finished the parenting course or the psychological evaluation; had not

visited BD since August 5, 2019; had tested positive for illegal substances on her most recent

drug screens; and remained incarcerated out of state. The court ordered her to comply with

the case plan.

DHS filed a termination petition on March 9, alleging numerous grounds for

termination including failure to remedy (Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a)); failure

to provide significant support (Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a)); failure to

maintain meaningful contact (Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a)); abandonment

(Ark. Code Ann. § 9-27-341(b)(3)(B)(iv)); 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)). DHS also alleged that termination was in the best interest of BD.

A termination hearing was scheduled for April 2020, but the circuit court continued

the case due to the COVID-19 pandemic. The termination hearing eventually took place

October 28. Carson Taylor, the DHS caseworker assigned to Simmons, testified that DHS

provided a psychological evaluation, a drug assessment, counseling, visitation, and drug

screens. She stated that Simmons participated in the psychological evaluation and drug

assessment but had inconsistent visitation and had not maintained stable housing throughout

5 the case. Taylor testified that a few weeks before the termination hearing, Simmons

informed her that she was staying with a grandmother, but Taylor stated it is not Simmons’s

grandmother but a lady Simmons is taking care of in order to live where she is staying.

Taylor said that Simmons’s name did not appear on the lease. Taylor also said there were

“long stretches” during which she did not have contact with Simmons because she was

incarcerated for about six months in Texarkana. Simmons claimed that she participated in

services while incarcerated but was not able to provide documentation of completion. While

Simmons was unable to visit with BD while incarcerated, there were other times when she

did not call or show up for visitation. Taylor stated that Simmons participated in the drug

assessment but did not complete the recommended outpatient treatment. As for Simmons’s

employment, Taylor testified that she worked “on and off” with a temporary agency job

but that her employment was not stable. Taylor thought DHS provided as much as they

could to help Simmons get on her feet and stated that DHS asked for a continuance of the

April 2020 termination hearing to give Simmons more time to become stable.

Taylor said that Simmons did better after her incarceration and was sober but

indicated that sobriety had been a problem. She testified that DHS assisted her with

information on housing but did not provide financial assistance because DHS requires a

budget to show that Simmons could maintain an apartment should DHS help her acquire

one. Taylor stated that Simmons never provided a budget and lost her job at the temporary

agency.

The next witness to testify was Brock Baker, a foster-care supervisor with the Garland

County Division of Children and Family Services. Baker had been involved at the beginning

6 of the case as the “removing worker.” Baker prepared a court report that was introduced

into evidence. He elaborated that when DHS provides rental assistance, the agency wants

to know that the parents are going to be able to continue to provide their own stable housing

after DHS is no longer involved. Baker stated that with Simmons they were never to a place

where she was going to be stable. He said they could have paid deposits and the initial rent

for her but that there was never a time that Simmons had a stable job to maintain housing.

Baker recognized that Simmons claimed she was earning $400 a month but stated that the

“situation” could become unstable if the woman she lived with became ill or chose to end

the arrangement. Baker said that DHS provided Simmons with “furloughs for housing” but

did not pay for the “initial housing.”

Baker testified that since the previous hearing, Simmons had three or four visits with

BD that went well. He indicated that she knows how to parent her son but was concerned

that BD had been in foster care for eighteen months, which was a “great majority” of his

life. Baker testified that that Simmons had not been able to provide a stable place for BD to

live. The court report provided that Simmons had attended twenty-four visits during the

eighteen months and had failed to show eighteen times, but Baker said visitation had

improved since the last hearing. Baker identified the potential harm that DHS was

concerned about as the possibility of sending BD on a trial home visit in a housing situation

that might fall apart tomorrow, and Simmons had not been consistent in her ability to care

for BD. He applauded Simmons’s ability to remain sober but remained concerned about

her ability to provide for BD’s in the most basic forms that he needed to survive. In regard

7 to potential adoption, Baker testified that BD is highly adoptable and that there were 358

matches for potential adoptive families.

Simmons testified that after the last hearing, she was given more time to obtain

housing and had obtained a place in August where she resided at the time of the hearing.

She said that Taylor visited her home, thought it was “wonderful,” and “okayed it.”

Considering how everything was going, she thought BD would be returned to her because

the only thing lacking was housing. She stated that her cousin’s husband’s grandmother

wanted to move in with her to help her get BD back and was paying her $400 a month.

She claimed she had maintained a job and a home for three or four months at the time of

the termination hearing. She testified that she had $100 remaining at the end of the month

after paying for gas and groceries and that she had applied for food stamps. Simmons said

that her name was the only one on the lease. In regard to missing visitation, she said she had

gone to visitation with a cough and runny nose and was sent home. She pleaded to the

court to not grant the termination because she had done all that was asked of her

emphasizing that the last time she was in court, all she needed was to find a house and a job.

On cross-examination, Simmons testified that BD had only been three or four houses

away on the day he was removed from her home. She also indicated that she has $200

remaining at the end of the month after she pays for the water bill, gas, and groceries and

has saved $600 thus far. She was not sure if she had provided the lease to her caseworker.

At the conclusion of the hearing, the circuit court stated that the case came down to

two issues—the ability to support BD and the ability to provide him stable housing. The

court found that, despite the extra time Simmons had been given, she was not able to make

8 progress. The circuit court found some of Simmons’s testimony credible but found her

testimony not credible in regard to housing and employment. The circuit court entered an

order on October 28 terminating Simmons’s parental rights to BD finding that DHS had

proved four grounds for termination (failure to remedy, failure to provide significant

meaningful support, subsequent factors, and aggravated circumstances) and that termination

was in BD’s best interest. Simmons timely appealed the termination order.

This court’s review of cases involving the termination of parental rights is de novo.

Brown v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 370, at 7, 584 S.W.3d 276, 280. Grounds

for termination must be proved by clear and convincing evidence, which is such a degree

of proof that will produce in the fact-finder a firm conviction as to the allegation sought to

be established. Id. Our inquiry is whether the circuit court’s finding that the disputed fact

was proved by clear and convincing evidence is clearly erroneous. Id. Credibility

determinations are left to the fact-finder. Id.

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. Id., 584 S.W.3d

at 280. The first step requires proof of one or more statutory grounds for termination.

Simmons does not challenge the statutory grounds found for termination. The second step,

the best-interest analysis, includes consideration of the likelihood the juvenile will be

adopted and of the potential harm caused by returning custody of the child to the parent.

Id., 584 S.W.3d at 280-81. In determining potential harm, which is forward looking, the

court may consider past behavior as a predictor of likely potential harm should the child be

returned to the parent’s care and custody. Id. There is no requirement to establish every

9 factor by clear and convincing evidence; after consideration of all factors, the evidence must

be clear and convincing that termination is in the best interest of the child. Id.

On appeal, Simmons challenges only the circuit court’s best-interest determination.

She does not challenge the circuit court’s adoptability finding but instead contends that the

circuit court’s potential-harm finding is not supported by sufficient evidence. She argues

that that she had a home and a job, and it was erroneous and purely speculative for the

circuit court to base termination on what could occur in the future with her home and

income. She also contends that poverty is not the type of harm intended to support

termination and that the potential harm, which she identifies as “the risk of insufficient

resources,” cannot be based purely on speculation.

Simmons cites Bunch v. Arkansas Department of Human Services, 2017 Ark. App. 374,

at 9, 523 S.W.3d 913, 918, in support of her argument, but her reliance on Bunch is

misplaced. Although this court stated that the appellant’s lack of financial means was not a

sufficient basis to terminate her parental rights, the reversal was based on the fact that the

children had been in a placement with their grandmother since shortly after their removal.

In Bunch, we held that there was no urgency for permanency and stability because, whether

or not termination occurred, the children would remain with their grandmother who had

expressed a desire to adopt the children if appellant’s rights were terminated. Considering

the bond between the appellant and her children, we concluded that there was little harm

in affording the appellant more time toward reunification and held that the circuit court

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

10 We have stated that a parent’s lack of stable housing or employment can demonstrate

potential harm to a child, as can a parent’s continued illegal-drug usage. See, e.g., Gonzalez

v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 425, at 12–13, 555 S.W.3d 915, 921–22

(affirming the circuit court’s potential-harm finding based on appellant’s consistent lack of

stability in regard to housing and employment and failure to comply with court orders to

obtain and maintain both); Jung v. Ark. Dep’t of Hum. Servs., 2014 Ark. App. 523, 443

S.W.3d 555 (holding that, while there was some evidence that Jung was recently employed

and sober at the time of the hearing, there was insufficient proof that, given her history, she

could maintain employment or sobriety).

Here, the circuit court found that Simmons’s lack of stability was indicative of

potential harm. We agree. We have noted that a court may consider past behavior as a

predictor of likely potential harm should the child be returned to the parent’s care and

custody. See Gonzales, supra. We have also held that a parent’s failure to comply with court

orders itself is sufficient evidence of potential harm. Id.

The intent behind the termination-of-parental-rights statute is to provide

permanency in a child’s life when it is not possible to return the child to the family home

because it is contrary to the child’s health, safety, or welfare, and a return to the family home

cannot be accomplished in a reasonable period of time as viewed from the child’s

perspective. Ark. Code Ann. § 9-27-341(a)(3). Simmons’s lack of stable employment and

housing persisted throughout the entire twenty months of this case. There was testimony

that Simmons had “on and off employment” with a temporary agency but that her

employment was not stable. She was also unable to work for some months due to her

11 incarceration. In April 2020, she was given six more months to achieve stability. Although

Simmons testified that her employment and housing had been stable for three or four

months at the time of the termination hearing, the circuit court found her testimony not

credible as to those issues. Even if the circuit court had credited Simmons’s claim of recent

stability, we note that this court has repeatedly held that the children’s “need for permanency

and stability will override [a parent’s] eleventh-hour efforts.” Gonzalez, 2018 Ark. App. 425,

at 11, 555 S.W.3d at 921 (citations omitted). Given our deference to the circuit court’s

credibility determinations, we conclude that the circuit court’s potential-harm finding is not

clearly erroneous.

Affirmed.

HARRISON, C.J., and ABRAMSON, J., agree.

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

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for

appellee.

Dana McClain, attorney ad litem for minor child.